Conflicts of Interest Flashcards
Personal Interest Conflicts - List
Exam Tip - favorite scenario for Bar
- Opposing lawyers related
- Solicitation of Gifts
- Sexual Relations with Client
- Waiver of Malpractice Recovery
- Financial Assistance
- Literary or Media Rights
- Payment from a Third Party
- Lawyer as Witness
- Business Transactions with Client
Personal Interest Conflicts - 1-7
1. Opposing Lawyers Related
o May not represent a client if a close family member (e.g., spouse, parent, child, or sibling) as the opposing counsel or the opposing party, unless both clients give informed consent.
2. Solicitation of Gifts
o May not solicit gifts from a client, and may not write a will in which a client leaves money to the attorney, a relative of the attorney, or a coworker of the attorney
3. Sexual Relations with Client
o May not have sex with a client unless the relationship began before representation
4. Waiver of Malpractice Recovery
o May not ask a client to agree in advance to waive future malpractice claim claims unless the client is represented by a separate independet attorney at the time of the waiver
Settlement of past malpractice claim: Attorney can make an offer to settle, but must reccomend that the client obtain outside counsel
5. Financial Assistance
o May not provide any financial assistance to a client (e.g., lend money)
Indigent clients: May advance court costs costs and/or litigation expenses
6. Literary or Media Rights
May not negotiate for literary or media rights relating to an ongoing case
Example 13: Attorney was contemplating a movie deal regarding Client’s case. Because he was no longer impartial, Attorney advised Client to go to trial when Client would have been better off accepting a plea bargain.
May negotiate for literary or media rights after the conclusion of the representation
7. Payment from a Third Party
o May not take payment from or share information with anyone except the client unless the client consents
Example 14: Mom and Dad may pay for Attorney’s representation of Child in a juvenile justice proceeding. However, Mom and Dad may not make litigation decisions and Attorney must keep confidential anything Child said.
Personal Interest Conflicts - 8 Lawyer as Witness
o May not represent a party to a case in which he/she is likely to be called as a witness o
Exceptions:
1)Attorney may testify about uncontested matters.
Example 15: Attorney can offer testimony about a stipulation about which the parties have agreed.
2)Attorney may testify about the nature and value of legal services rendered.
Example 16: In a case where the court will award legal fees to the prevailing party, Attorney may testify about the number of hours worked and the hourly billing rate.
3)Disqualification of lawyer would put a substantial hardship on the client.
Personal Interest Conflicts - 9 Business Transaction with Client
May not enter into a business transactions with client unless all of the following conditions are met:
1)The transaction and its terms are substantively fair and
objectively reasonable to the client
2) The terms are in writing
3) The client is advised to seek independent counsel
4) The client gives informed consent in writing to the transaction, its essential terms, and the lawyer’s role in the transaction
Conflicts b/t Clients - General
Consider 2 Questions:
- would the representation subject the attorney to discipline?
- should the attorney be disqualified from representing a client?
Conflicts b/t Clients - Conflicts Involving Prospective Clients
- If an attorney meets with a prospective client and learns confidential information, the attorney is precluded from representing the opposing party in the matter unless he receives informed consent.
Example 17: Wife is seeking a divorce. She consults with Attorney and discloses information about her case, but decides not to hire Attorney to represent her. Attorney is precluded from representing Husband in the case, unless Wife expreslly consents.
- Exception: Screening is allowed
Example 18: From above example - Even without Wife’s consent, other lawyers in Attorney’s firm may represent Husband as long as Attorney is screened off from the representation. This means that Attorney may not
cannot talk or recieve fee from matter
Conflicts b/t Clients - Current Clients - a. Co-Parties
- May represent co-parties as long as clients’ interests are aligned
- Must get informed consent from both clients; i.e., must tell clients of the risks and benefits of joint representation
- Informed consent must be in writing.
- Must warn clients of possible future conflicting interests
Example 19: Civil Cases. Attorney represents Client 1 and Client 2 in the same matter. Client 1 eventually decides to file a cross-claim against Client 2. If this happens, Attorney may no longer represent both clients.
Criminal Cases. Attorney represents Defendant 1 and Defendant 2 in the same matter. Defendant 1 wants to accept a plea bargain in exchange for testimony against Defendant 2. This would put Defendant 2 at a significant disadvantage if both defendants shared confidences because of their joint representation. Thus, defendants must be warned of this possibility.
Conflicts b/t Clients - Current Clients - b. Opp. Parties in a Pending Ct. Case
- May never represent opposing parties in the same lawsuit or transation
- Clients may not consent to this
Example 20: Attorney may not represent Husband and wife in their divorce case.
Conflicts b/t Clients - Current Clients - c. Opposing Parties in Non-Tribunal Case
- May represent opposing parties in the same matter if not before a a tribunal
Example 21: Attorney may represent both Buyer and Seller in a purchase transaction that is not before a tribunal.
- Must get written consent from both clients; i.e., must tell clients of the risks and benefits of joint representation
- Must reasonably believe that he/she can competently and diligently represent both parties
- Subjective: Attorney has a actual belief that he/she can provide competent and diligent representation.
- Objective: A reasonable observor could believe that an attorney in those circumstances could do so.
Conflicts b/t Clients - Current Clients - d. Opposing Parties in Unrelated Cases
Example 22: Attorney represents Corporation in an intellectual property case. Employee, who once worked for Corporation, seeks to sue Corporation for wrongful termination. Even though the two cases are unrelated, Attorney may not represent Employee unless both give informed consent in writing.
Must reasonably believe that he/she can competently and diligently represent both parties
Conflicts b/t Clients - Current v. Former
o Consider 2 Questions:
1)Is the current client adverse to the former client?
Example 23: Attorney once represented Husband in business matters. Attorney now wants to represent Wife in her divorce case against Husband. Here, the clients are adverse because was working for and now against
2)Are the two matters related?
- Was confidential information obtained during the first representation that could be used against that client during the second representation?
Exam Tip 9: The Bar Examiners like to use the scenario of a business matter and a divorce matter, because they appear unrelated but can actually be connected.
Example 24: From above example - During Attorney’s representation of Husband in the business matter, Attorney would have learned confidential information about Husband’s finances and assets. This information can be used against Husband in the divorce case.
Imputation of Conflicts to Law Firm
1. General Rule (Default)
If one lawyer in a firm has a conflict of interest regarding a representation,
no other attorney in the firm may accept the representation (regardless of location, department, etc.).
2. Lawyers Switching Firms
-
Limitations on Old Firm
- Remaining attorneys may accept the representation if they did not receive confidential information about the case.
- Limitations on New Firm
- Lawyers in new firm may accept the representation if the new attorney is screening from any conflicting cases.
- New attorney does not still represent the conflicting client, may not share confidential information with new firm, and may not share the fee
- New firm must have set up an effective screening process
- New firm must inform relevant parties about the screen and provide information about screening procedures
Example 25: Relevant parties must be notified about file restrictions, password protections, filing cabinet locks, etc.
