Conflicts of Interest

Question 1

What isa conflict of interest?

Answer 1

Basic rule = A lawyer can’t represent a client IF…

1) the representation will involve the lawyer representing differing interests OR
2) there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property, or other personal interests

Question 2

When can a lawyer take a case in which there is a conflict of interest?

Answer 2

If there is a conflict of interest, a lawyer can accept the case ONLY IF ALL 4 are met:

1) Lawyer reasonably believes she can competently represent all affected clients;
2) Representation is not prohibited by law;
3) Representation does not involve an assertion of claim by one client against another; AND
4) Each client gives informed consent in writing

Question 3

What is general rule re: imputation of conflicts?

Answer 3

If one lawyer is conflicted, all lawyers in the firm are conflicted

Question 4

Is a lawyer allowed to serve as his client’s witness?

Answer 4

Lawyer is not able to represent a client where he’s likely to be a witness on a significant issue of fact UNLESS

- Testimony related to uncontested matter
- Relates solely to value of legal services
- Relates solely to a matter of formality
- Disqualification would work substantial hardship on a client;OR
- Testimony is authorized by the tribunal

NOTE: this conflict is NOT imputed to other lawyers on the firm BUT a lawyer may not act as an advocate if another in the lawyer in the firm is likely to be called as a witness on the significant issue by another party to the lawsuit(and it is apparent that the testimony may be prejudicial to the client)

Question 5

When is a lawyer allowed to obtain media rights?

Answer 5

ONLY at the END of a matter

PRIOR to the CONCLUSION of the client’s entire matter, a lawyer is prohibited from entering into or even negotiating any arrangement or understanding with a client or a prospective client by which the lawyer acquires an interest in literary media interests with respect to the subject of the representation

Question 6

Is a lawyer allowed to acquire a financial interest in a matter?

Answer 6

NO! Can’t take an interest in the cause of action or subject matter of litigation Except:

1) Acquire a lien authorized by law to secure the lawyer’s fee or expenses (i.e. a charging lien)
2) Contract with a client for a reasonable contingency fee in a civil matter

• • NOTE re: domestic relations matters: A lawyer’s retainer agreement may include a security interest, confession of judgment, or other lien, such as a lien on real property to secure the lawyer’s fee, but ONLY IF:
    
    • Prior notice is in assigned retainer agreement
    • Tribunal/judge approves it; AND
    • Notice to the adversary

** BUT a an attorney shall not foreclose on a mortgage placed on a marital resident while the spouse who consents to the mortgage remains the titleholder, and it is the primary residence.

Question 7

Is a lawyer allowed to financially assist a client?

Answer 7

A lawyer CAN’T advance or guarantee financial assistance to a client for contemplated or pending litigation UNLESS they are court costs or expenses litigation:

You can advance contingent on the result; OR
If your client is indigent or pro bono, you can pay them yourself

Question 8

What is the rule re: 3rd party payors?

Answer 8

A lawyer cannot accept compensation for representing a client or anything of value related to the lawyer’s representation of the client, from one OTHER than the client, UNLESS:

- Client gives informed consent;
- There is no interference with lawyer-client relationship; AND
- Confidential information is not provided to payor.

Question 9

What is the rule re: sexual relations with a client?

Answer 9

Lawyers cannot demand sexual relations as a condition of representation. There is a broad definition of “sexual relations.”

Lawyer in a domestic relations matter cannot enter into sexual relations with a client during the course of the lawyer’s representation of the client.

NOTE: EVEN if a sexual relationship PREDATES the attorney client representation, an ongoing relationship can still create a conflict of interest (personal judgment may be affected)

Question 10

Is a lawyer allowed to enter a business transaction with a client?

Answer 10

Lawyers cannot enter into a business transaction with a client IF

(i) they have different interests than the client;and
(ii) the client expects the lawyer to exercise his professional judgment on behalf of the client,UNLESS:			

A. Fair and reasonable to the client
B. Terms of the transaction disclosed in writing in a matter that can be reasonably understood by the client
C. Client is advised in writing of the desirability of seeking and is given the opportunity to seek an independent lawyer on the transaction; AND
D. The client gives informed consent

EXCEPTION: a lawyer can always enter into a standard business contract when it doesn’t use the lawyer’s judgment. e.g. buying a car from a car dealer

Question 11

Can a lawyer represent a current client in a lawsuit against a FORMER client?

Answer 11

YES. You may represent a current client in an action against a former client UNLESS:

1. Your current client wants to sue the former client in matter that’s substantially similar to prior presentation; OR
2. During the representation of the former client you learned confidential information that is now relevant to the action by the current client.

** NOTE: If confidential information becomes known to the public or the client consents in writing, you can do this.

** BUT you can NEVER represent two current clients against each other no matter what you’re representing them for

Question 12

Who is the lawyer’s client when the matter involves a corporate entity?

Answer 12

A lawyer for a corporation or partnership represents the entity… NOT the constituents

And you have to tell the constituents you represent the entity and not the constituents.

Question 13

What is a lawyer’s duty when she KNOWS of corporate misconduct?

Answer 13

If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action or intends to act in a manner that is a violation of law that might reasonably be imputed to the organization; AND is likely to result in substantial injury to the organization…

THEN the lawyer shall proceed as is reasonably necessary in the best interest of the organization, inlcuding:

1. Asking reconsideration of the matter	
2. Advise that a separate legal opinion be sought	
3. Referring the matter to the a higher authority in the corporation including, if serious, referring it to the highest authority that can act (i.e. "reporting up")	
4. If the highest authority is in conflict with the lawyer and the act is CLEARLY in violation of law AND likely to result in a SUBSTANTIAL injury, then the lawyer MAY reveal confidential information IF permitted by the exceptions to confidentiality

Question 14

What is the lawyer’s duty re: limiting malpractice liability?

Answer 14

A lawyer CAN’T make an agreement prospectively limiting the lawyer’s liability to a client for malpractice

FURTHERMORE, a lawyer MUST not SETTLE a claim for legal malpractice with a client or former client, UNLESS the client or former client is advised in writing of the desireability of seeking independent legal counsel