Conflicts of interest Flashcards
As affected by lawyer’s personal interest
L must not represent C if the representation may be materially limited by L’s own interests unless:
(i) L reasonably believes he can provide competent/diligent representation to the affected C,
(ii) the representation is not prohibited by law, and
(iii) the affected C gives informed consent, confirmed in writing
Opposing Ls related
• MR—related Ls cannot represent Cs in the same matter unless the Cs give informed consent
• CA—also includes C’s of L, lives with L, has intimate personal relationship with L
Sexual relations with C
• MR—not allowed unless a consensual sexual relationship predates the L-C relationship (cannot be waived through informed consent)
• CA—L cannot demand sexual relations with C as a condition of representation, use coercion/intimidation, or continue the representation if sexual relations cause L to perform L’s duties incompetently (sexual relations predating the representation are permitted)
Lawyer as witness
MR—L is not permitted to represent C if L is likely to be a necessary witness unless the testimony relates to an uncontested issue, the value of the legal services, or if disqualification would be a substantial hardship to C
CA (jury trials only)—L is not permitted to represent C unless the testimony relates to an uncontested matter, the value of the legal services, or if L obtains C’s informed written consent
Acquiring an interest in litigation
Proprietary interest in c/a (MR)—not permitted except:
(i) when L acquires a lien to secure fee payment or
(ii) contingent fees (provided the case is not a domestic relations or criminal matter)
Financial assistance to C
• MR—prohibited with respect to pending litigation except L is permitted to advance litigation costs to C
• CA—not permitted to directly/indirectly pay for personal/business expenses of a prospective or existing C (but can be paid to third party with C’s consent), but L is permitted to advance reasonable litigation costs to C
Entering into business transactions with C
Business transactions with C or adverse interest—not permitted unless:
- the terms are fully disclosed (and understood by C)
- in writing,
- fair/reasonable to C, and
- C is given an opportunity to seek independent counsel
Literary/media rights (MR)—not permitted prior to the conclusion of the representation
Soliciting gifts—L cannot solicit a gift or prepare an instrument giving a substantial gift to L (unless related), but unsolicited gifts are generally acceptable if they meet the standards of fairness
Prospectively limiting malpractice recovery—(MR) permitted if C seeks independent counsel regarding the agreement (prohibited in CA)
Settlement of legal malpractice claim—permitted if C is given a reasonable opportunity to seek independent counsel regarding the agreement
Conflicting interests of current Cs
MR (actual conflict only): L cannot represent Cs with directly adverse interests unless:
1. L reasonably believes (subjective and objective standards) that he can provide competent/diligent representation,
o Material limitation—C/I exists if there is a significant risk that L’s ability to represent C is materially limited because of L’s other responsibilities/interests
2. the representation is not prohibited by law,
3. C is not asserting a claim against another C in the same litigation, and
4. Cs give informed written consent
CA (actual and potential conflicts)—need informed written consent to represent Cs with potential or actual conflicts, to represent current C and take on new C with interests adverse to current C, or to accept a new C because representation of current C leads to confidential information material to new C’s matter
Aggregate settlements between co-Cs—both Cs must consent in writing after full disclosure
Conflicting interests of current and former Cs
MR—L cannot represent a new C in the same or substantially related matter (same transaction or substantial risk that confidential information obtained from former C could materially advance new C’s position) as a former C if new C’s interests are materially adverse to the former C’s interests (unless former C gives informed written consent)
CA—L cannot accept employment adverse to former C when L has obtained confidential information material to the new employment due to former C, without his informed written consent
L switches private firms
o Limitations on new firm—L cannot accept employment materially adverse to C from a former law firm when L has obtained confidential information material to the new matter without former C’s informed written consent
o C/I imputed to new law firm—C/I will not be imputed if the disqualified L is screened off and doesn’t share the fee, and written notice and certification of compliance with ethical rules is given to former C
Former government Ls (MR)—prohibited from representing a C in a matter (need not be adverse) in which L participated personally and substantially as a government L without informed written consent of the government agency (not in CA)
Conflicting interests of prospective Cs
Cannot represent Cs with materially adverse interests in the same or a substantially related matter if L received information from the prospective C that could be significantly harmful to current C unless Cs give informed written consent or there is limited exposure, timely screening, no sharing of the fee, and notice to prospective C
Influence by persons other than C
Third-party payment to L
• MR—not permitted unless:
1. C gives informed consent,
2. there is no interference with L’s professional judgment, and
3. L-C confidentiality is preserved
• CA—same as MR except client must also consent in writing
Organization as C—generally, L owes a duty of loyalty/confidentiality to the organization
• Representing the organization and its employees—dual representation is permitted as long as no other conflict exists, but L must explain C’s identity to constituents when the organization’s interests become adverse to those of the constituents
• Rectifying misconduct—L must proceed as is reasonably necessary in the best interest of the organization when he learns of action by an employee that is likely to cause substantial injury to the organization
• Reporting misconduct
o MR
Within organization—L may report misconduct to a higher authority in the organization if L reasonably believes it is in the best interest of the organization
Outside organization—if a higher authority fails to act in a timely or appropriate manner, and it is a clear violation of the law and will result in substantial injury to the organization, then L can report to an outside authority
o CA
Within organization—urge reconsideration of the matter or refer the misconduct to a higher authority, but if the highest authority insists on an act or refusal to act that violates the law and is likely to cause substantial injury to the organization, L must withdraw from representation
Outside organization—when an actual/apparent agent of the organization acts in violation of the law that is likely to cause substantial injury to the organization, L must honor the duty of confidentiality, but L may reveal
information as necessary to prevent a criminal act he reasonably believes is likely to result in death or substantial bodily harm
Imputed disqualification
Law firm is disqualified unless the prohibition is based on a personal interest of L and there is no significant risk of limiting representation of C.
C can waive disqualification if L reasonably believes he can provide competent/diligent representation, the representation is not prohibited by law, L is not representing two Cs with claims against each other in the same litigation, and C gives informed written consent
Conflicts based on lawyer’s service as arbitrator, mediator, or judge
(MR)—L may not represent C in a matter in which L participated personally and substantially unless all parties
give informed written consent
