Conflicts of Interest Flashcards
Economic Interests are . . .
Under Rule 1.7 are not typically conflicts. However, if a long-standing client is economically harmed, it might breach the lawyer’s fiduciary duties to that client.
Positional Conflicts Defined
When a lawyer takes a position in one case that would materially harm an argument in another case that was contrary to the client’s interests–and a significant risk on their ability to effectively represent the client is imposed
Positional Conflicts (Factors)
- *Whether the issue is before a trial or appellate court
- *Whether the issue is substantive or procedural
- *The temporal relationship between the matters
- *The practical signifigance of the issue to the immediate and long-term interests of the clients
- *The client’s reasonable expectation to retain the lawyer
Conflict of Interest (Order of Analysis)
Identify clients: former v. present
Identify the existence of conflicts
Conflict Category: direct conflict v. material limitation
Rule 1.7 – Conflicts w/ Current Clients
(a) Except as provided in paragraph (b), a lawyer SHALL NOT represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
* *The representation of one client will be directly adverse to another client; or
* *There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
* *The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
* *The representation is not prohibited by law;
* *The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
* *Each affected client gives informed consent, confirmed in writing.
Rule 1.9: Whether the attorney needs the consent of a former client to proceed with a current representation
(a) A lawyer who has formerly represented a client in a matter SHALL NOT thereafter represent another in the same or a substantially related matter that is materially adverse to the interests of the former client unless given informed consent in writing.
(b) A lawyer SHALL NOT knowingly represent a person in the same or substantially related matter in which a firm with which the lawyer was formerly associated had previously represented a client
(1)Whose interests are materially adverse to that person; and
(2) About whom the lawyer had acquired information protected by 1.6 and 1.9(c) that is material to the matter — unless the former client consents in writing
(c) A lawyer who has formerly represented a client, or whose present or past firm has formerly represented a client in a matter, SHALL NOT
Use information relating to the representation to disadvantage the former client–except as the rules permit or is generally known; or
Reveal information relating to the representation except as the rules would permit
Rule 1.10 Imputation of Client Conflicts
(a) While lawyers are associated in a firm, none of them SHALL knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless . . .
*The prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or
*The prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, and
**(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;
**(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm’s and of the screened lawyer’s compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and
**(iii) Certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client’s written request and upon termination of the screening procedures.
(b) When a lawyer has terminated an association with a firm, the firm IS NOT PROHIBITED from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
*The matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
*Any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.
The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.
Rule 1.8(f): Compensation From One Client to Represent Another
A lawyer SHALL NOT accept compensation for representing a client from one other than the client unless
1) The client gives informed consent
2) There is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
3) Information relating to the representation of a client is protected as required by Rule 1.6.
Representing Multiple Parties NOT in Litigation With Another (Rule 1.0(e))
Ensure the clients have adequate information about the material risks of joint representation; suggesting that information between joint clients should not be withheld
Representing Organizations - Rule 1.13 (Generally)
Lawyers represent the organization as the client and not those who work for the organization
Whether a Related Entity is a Client:
More Likely
1) Received confidential info or provided advice as a subsidiary
2) Controlled or supervised by the parent org.
3) OG client could be materially harmed by a suit against the related entity
Less Likely
1) The lawyer no longer represents the OG client
2) Two companies became linked by a merger after they began working for the first org.
Representing Employee of a Client Organization (Restatement 131)
Unless all affected clients consent, a lawyer MAY NOT represent both an organization and an individual or organization associated with it, if there is a substantial risk that their representation would be materially and adversely affected by the lawyer’s duties to the other
Reporting Unlawful Conduct within a Client Organization
A lawyer may report misconduct to a higher authority, the highest authority, or public officials (in that order) to prevent harm to the interests of the organization.
So long as there is a risk of substantial injury to the company and the leaders have not timely or appropriately responded
