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Prof'l Responsibility > Conflicts of Interest > Flashcards

Conflicts of Interest Flashcards

1
Q

What is a conflict of interest?

A

Conflict of interest exists if an interest of the atty, another client, past client, or a 3d party materially limits or is adverse to loyal representation

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2
Q

ABA Model Rules: Resolving Conflicts of Interest

A

Reqs:

(1) reasonably believe she can represent all parties effectively
(2) inform each client (if duty of confidentiality prevents atty from disclosing info the client requires to fully understand the conflict of interest, informed consent is not possible); and
(3) client gives informed written consent

CONTINUING DUTY - duty to disclose to a client a conflict of interest and to obtain that client’s consent is a continuing duty so the duty of loyalty requirement must be met each time a potential conflict comes into fruition, before atty should continue representation

REMEDIES:

(a) prior to acceptance of representation = refuse representation of client
(b) post acceptance of representation = withdraw

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3
Q

Remedies for conflicts of interest (ABA Model Rules)

A

(a) prior to acceptance of representation = refuse representation of client
(b) post acceptance of representation = withdraw

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4
Q

CA Rules: Resolving Conflicts of Interest

A
  • applies to both potential and actual conflicts
  • no reasonable lawyer std
  • written disclosure/informed written consent - CA sometimes reqs written disclosure by atty instead of informed consent by client
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5
Q

Written Disclosure (for CA)

A
  • legal / business / financial / professional / personal relationship w/ party/witness in same matter
  • knows/reasonably should known previous relationship w/ party/witness in same matter, AND previous relationship would substantially affect representation
  • legal / business / financial / professional / personal relationship w/ person/entity knows/reasonably should known would be substantially affected by resolution of matter
    OR
  • legal / biz / fin / prof’l interest in subject matter of the representation
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6
Q

Informed Consent by Client (for CA)

A

multiple clients and interest potentially conflict, or
multiple clients and interests actually conflict

CA requires informed written consent for both potential and actual conflicts

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7
Q

Imputed Disqualification

A

If one lawyer employed by a firm is unable to take on the representation b/c of a conflict of interest or confidentiality problem w/ a former client, the disqualification is imputed tot he entire firm and no lawyer in the firm may take on representation

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8
Q

Imputed Disqualification of Atty’s former firm

A

matters are substantially related or the same; AND

remaining atty has confidential, material information

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9
Q

CA rules for imputed disqualification

A

will disqualify, but no disciplinary action

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10
Q

Conflict arises from purely personal relationship

A

= ethical wall

representation may be reasonable if the lawyer w/ the conflict is completely screened from the other lawyers of the firm

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11
Q

Imputed Disqualification: Former Gov Client

A

No imputed disqualification if

(1) ethical wall = lawyer w/ conflict completely screened (from handling any portion of the representation against the gov)
(2) no sharing in fees; and
(3) gov informed (so that gov can ensure that proper preventative measures are taken)

  • same rule applies to judges, clerks, arbitrators, mediators, etc.
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12
Q

Representation of multiple clients

A

resolving conflicts of interest = reasonably believe no adverse effect
CA rules = no reasonably atty std

(1) duty to disclose
(2) informed written consent

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13
Q

Duty to disclose (representation of multiple clients)

A

the potential conflicts including the potential that she will have to withdraw from the representation if a conflict arises

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14
Q

Informed Written Consent for representation of multiple clients

A

after disclosure, atty must obtain client’s informed written consent to the joint representation

CA RULES: require informed written consent for BOTH potential and actual conflicts

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15
Q

Counseling Client to Act

A

Under duty of loyalty, a lawyer should not counsel acts that may subject a client to liability w/o a good faith belief that such decision is in client’s best interest

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16
Q

Use of Confidential Information to Client’s Disadvantage

A

Use/communication of info related to the representation of a client to client’s disadvantage without the client’s consent violates both the duty of loyalty and confidentiality

17
Q

Proprietary Interest in Subject Matter of the Litigation

A

Generally prohibited

Exceptions:
- lien to secure fees or expenses - an atty may acquire a lien granted by law to secure the payment of the lawyer’s fees/express
(NO SUCH EXCEPTION IN CAL)
- contract for reasonable contingency fee - an atty may enter into a K for a reasonable contingency fee in a civil case

18
Q

Business Transactions with Clients

A

Permitted if… business transaction b/w lawyers and clients are permissible if the following four requirements are met:

(1) fair and reasonable terms at time interest acquired
(2) fully disclosed in understandable writing
(3) independent legal counsel - client must be advised in writing to seek the option of another lawyer and given reasonable opportunity to do so; and
(4) written informed consent - the client consents in writing

Exceptions: Standard Commercial Transactions
- an atty may enter into std commercial transactions that the client regularly provides to other

19
Q

Publication Rights K

A

ABA Rules = prohibited before end of representation
- no Ks before the end of representation

CA Rules = discouraged, but permitted if judge satisfied
- discourages Ks before end of proceeding but tolerates them if the judge is satisfied that the client clearly understands and consents

20
Q

Expense Advances and Loans

A

ABA Rules = prohibited unless

  • litigation expenses when representing indigent clients; or
  • advance of litigation expenses in contingent fee cases

CA Rules = financial assistance prohibited in all contexts
Exceptions:
- REAL LOANS OK - CA permits lawyers to make such loans for any matter (even non-litigation matters) after the atty is hired so long as the payment is actually a loan that must be repaid and not an outright gift. additionally, the lawyer and client must enter into a written loan agreement, signed by both parties
- ADVANCE of LITIGATION EXPENSES in CONTINGENT FEE cases OK

21
Q

Serving in Legal Services Organization

A

Lawyer may serve as director/officer/member BUT

lawyer shall not knowingly participate in decision or action if

  • incompatible w/ duty of loyalty (lawyer’s obligations to a client); or
  • material adverse effect on representation of a client whose interests are adverse to client of lawyer
22
Q

Former Gov Lawyers in Private Practice

A

ABA Rules = gov lawyer worked personally and substantially on matter = conflict for atty to work on the same matter later in private practice w/o written consent of the gov ER

  • written consent of gov ER required
  • matter = specific dispute b/w specific ppl over specific issues (regulations ≠ matters)

CA Rules = former prosecutor
CA specifically prohibits a former prosecutor from later working on the defense of the same case

23
Q

3d Party Interference: Acceptance of Payment from 3d Party

A

ABA Rules - lawyer SHOULD NOT accept payment from 3d party for services to a client
UNLESS
3d party does not influence the lawyer’s independent judgment and client consents after full disclosure

24
Q

3d party interference: Organizational Clients

A

Atty must act in best interest of the entity

ABA Rules: Reporting up & Reporting Out
1st option: RECONSIDERATION OF MATTER - atty may ask the person associated w/ org to reconsider the matter
2nd option: MUST REPORT UP THE CHAIN - atty MUST refer the matter to a higher authority w/in the org
3rd option: MAY REPORT OUT IF HIGHEST AUTHORITY FAILS TO TAKE APPROPRIATE ACTION

CA RULES: Reporting up
2nd option: may report up = permissive, not mandatory
3rd option: reporting out = prohibited
*note, however, if the fed law requires/allows atty to report, federal preemption means atty cannot be held liable for doing so

25
Q

Limited Malpractice Liability

A

ABA Rules = prohibited unless client represented by independent legal counsel when agreement was made

CA Rules = prohibited even in pro bono cases

Written advice required for settlement of malpractice suit - may only settle malpractice suit w/ client after providing client w/ written advice to consult outside independent legal counsel and giving client an opportunity to do so

26
Q

Gifts from the Client

A

Atty SHALL NOT SOLICIT SUBSTANTIAL GIFTS from a client or draft a legal instrument (i.e., will, trust agreement, or deed) for a client that will give the lawyer (or a person related to the atty) a substantial gift unless the lawyer and client are related

27
Q

Close Relationship w/ Adversary Atty

A

Gen rule is that an atty may not oppose a party represented by a relative w/o informed client consent

CA Rules = CA also recognizes a close relationship when

(1) one lawyer is the client of the other lawyer
(2) two lawyers live together; and
(3) two lawyers have an intimate personal relationship

28
Q

Trial Counsel is Necessary Witness

A

Generally prohibited - atty should not act as an advocate in a trial where the lawyer is likely to be called as a witness

ABA exceptions:

  • testimony only relates to uncontested matter
  • testimony regarding nature and value of legal services provided
  • disqualification would result in substantial hardship to client

CA exceptions:

  • client consents in writing
  • testimony only relates to uncontested matter
  • testimony regarding nature and value of legal services provided
29
Q

Consensual Sexual Relations w/ Client

A

Model ABA Rules = prohibited unless preexisting sexual relationship (prior to creation of lawyer-client relationship)

CA Rules - allows such relations where the lawyer and client are involving in

  • preexisting sexual relationship; and
  • nature of sexual relationship will not preclude competent legal services

Prof'l Responsibility (5 decks)

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