conflicts of interest

Question 1

Types of conflicts

Answer 1

a. Concurrent Client (different clients) Conflicts
b. Former Clients Conflicts
c. Prospective Client Conflicts

. Client Conflicts
3rd Person Conflicts

Question 2

Concurrent conflict of interest

Answer 2

i. MR 1.7 (a)

A Lawyer shall not represent a client if the representation involves a concurrent (present) conflict of interest

Question 3

Directly adverse

Answer 3

ii. MR 1.7 a 1 (Directly Adverse)

A concurrent conflict of interest exists if the representation of one client will be directly adverse to another client

Question 4

materially limited

Answer 4

iii. MR 1.7 a 2 (Materially Limited)
1) A concurrent conflict of interest exists if there is a significant risk that representation of one client will be materially limited by duties to another client

		iv. MR 1.7 a 2 comment 
			1) Is there a significant risk of the lawyers ability to recommend a course of action for one client will be materially limited because of his obligation to another.

Question 5

exceptions to concurrent interests

Answer 5

v. MR 1.7 B A lawyer may represent a client if the lawyer (Exceptions)
1) Reasonably believes he/she can provide competent and diligent representation to each affected client;
2) Representation is not prohibited by law;
3) Representation does not involve a claim by one client against another client in the same litigation; and
Each client gives informed consent confirmed in writing

Question 6

Business transactions rule

Answer 6

ii. May a lawyer represent separate individuals seeking to form a partnership?
Yes, but there is a potential for malpractice/disciple inf the individuals come into conflict and the lawyers representation is materially limited.

Question 7

Necessary disclosures rule

Answer 7

i. A duty of informed consent exists for these conflicts. The lawyer must inform the clients of all risks and the benefits of joint representation.
ii. 1.7 Comment 29
1) If joint representation fails, each client might suffer additional costs, and embarrassment and recrimination
iii. 1.7 Comment 31
1) Potential waiver of AC privilege because you have an equal duty to all clients. Tell the clients all information will be shared. If one client wants to keep something confidential, they must get separate counsel.
iv. Bargaining power
1) If bargaining power is unequal between the parties, the lawyer should decline representation.
v. Individual Representation
If one client expects special help, joint representation impossible, because you cannot advocate anyone clients position against the other.

Question 8

Economically adverse Conflict Rules

Answer 8

Simultaneous representation of clients in unrelated matters whose interests are only economically adverse does not constitute a conflict of interest and many not require consent of all clients.

Question 9

Positional Rules Conflict

Answer 9

1) MR 1.7 Comment 24
a) A lawyer may take inconsistent legal positions in different courts at different times on behalf of different clients
A conflict exists however if there is a significant risk that the lawyers action on behalf of the client will materially limit the lawyers effectiveness in representing the other client.

			3) Restatement SS 132 Comment C A current conflict may not be transformed into a former conflict by a Lawyers withdrawal from representing the client.

Question 10

positional hot potato doctrine

Answer 10

A lawyer may not drop a client to keep a more lucrative client. And may not represent either party. The firm may not drop a client like a hot potato.

Question 11

Former Client Conflicts

Answer 11

i. MR 1.9 (a)
1) A Lawyer who has formerly represented a client shall not represent another client in the same or substantially related matter, or if their interests are materially adverse
2) Exception: unless client gives informed consent in writing.
3) Comment 3:
Two matters are substantially related if they are (1) the same transaction or dispute, or (2) there is a substantial risk that the confidential information of one client would materially advance the second clients position against them.

Question 12

substantially related matters

Answer 12

ii. MR 1.9(b)
1) A lawyer shall not represent a second client In the same or substantially related matter in which the firm the lawyer worked for represented the other client and the lawyer acquired confidential information about the case while at the firm.
Exception: except where the client gives informed consent in writing.

Question 13

Substantially related matter shield

Answer 13

iii. MR 1.9(b) Comment 5
1) If the lawyer acquired no knowledge relating to the other client while at the firm, neither the Lawyer nor their firm is disqualified from representing another client in the same or related matter, even if they are materially adverse.
A conflict only exists when the lawyer has actual knowledge of confidential information. Burden of proof rests with the firm whose disqualification is sought.

Question 14

Conflicts with former clients

Answer 14

A judge has a duty to investigate conflict if he knows or should reasonably know that a conflict exists. However if the judge fails to inquire, automatic reversal is not required but must determine whether the Lawyer had an actual conflict that actually affected the lawyers representation of the defendant. If an actual conflic adversely affects the lawyers performance, then prejudice is presumed.

Question 15

Imputed Conflicts

Answer 15

i. Screening: baring an attorney from being apart of a case at a firm due to a conflict.
MR 1.10 (a) While associated in a firm, no lawyers shall knowingly represent a client when any one of them would be prohibited from doing so.

Question 16

Screening rules

Answer 16

1) MR 1.10(a)(2)
a) A firm is not disqualified from representing a client who is conflicted with an attorney in their firm when:
i) The Lawyer is timely screened from the matter and recieves no part of the fee
ii) Written notice is given to the client to ascertain compliance with the rule
A certificate of compliance with rules and screening procedures is provided to the client by the lawyer and partner of the firm at reasonable intervals upon the request of the clienat and at termination of screening procedures.

		iii. MR 1.10(b) 
			1) When a lawyer has quit a firm, the firm is not prohibited from representing a persons interests that are materially adverse to client represented by the former lawyer and, is not currently represented by the firm.. 
				a) Exception:
					i) The matter is the same or substantially related to that in which the former lawyer represented the client for; and  Any lawyer remaining in the firm has confidential information material to the matter.

Question 17

Use of Confidential Information acquired in prior representation.

Answer 17

a. MR 1.9 C
i. A lawyer who has formerly represented a client or whose firm has formeryl represented a client shall not
1) Use information to the disadvantage of that client except when the information has become generally known; or
reveal information relating to the representation.

Question 18

Conflicts With Governmental Lawyers:

Answer 18

i. MR 1.11(a) an Ex-government employee shall not represent a client in a matter in which the lawyer participated in personally and substantially. In such cases, acquisition and disclosure of information is presumed.
See In re Sofaer

Question 19

Governmental Rule Making

Answer 19

i. Laker Airways case
1) 1.11(a) does not apply to the lawyers rule and policy making activities unless, the scope is confined to specified issues and identifiable parties, so as to become quasi-judicial.
ii. MR 1.11 (b)
1) No firm which hires disqualified government lawyer may knowingly undertake representation in such a matter unless:
The disqualified lawyer is timely screened, the don’t get a fee, and they give promptly written notice to the government.

Question 20

Job Hunting whilst a government employee

Answer 20

i. MR 1.11(d)(2)(ii)
1) A government lawyer shall not negotiate for private employment with a party or a lawyer for a party in a matter which the lawyer is participating personally and substantially.
ii. Judicial Law Clerk job hunting
1) MR 1.11(d)(2)(ii)
a) A law clerk to a judge may negotiate for private employment as permitted by rule 1.12(b).
2) MR 1.12(a) a law clerk for a judge may negotiate for employment with a party or lawyer involved in a matter in which the lawyer is participating personally and substantially, but only after the lawyer has notified the judge.

Question 21

Fees paid by a third person

Answer 21

i. MR 1.8(F)
1) A lawyer shall not accept compensation other than monies from the client unless
a) the client consents;
b) There is no interference with independence, professional judgement, or attorney client relationship; and
Information of the client is protected.

Question 22

Representing insured persons

Answer 22

i. A lawyer must not permit a clients insurance company to require compliance with litigation management guidelines.
ii. A lawyer believes it will compromise the professional judgment or the ability to provide competent representation.
iii. May not disclose the Clients confidential information to the insurer without informed consent of the client.
iv. May submit the clients bills containing confidential information if the lawyer reasonably believes disclosure:
1) Impliedly authorized and will advance interests of the client; and
It will not adversely affect the client

Question 23

Personal relationships between Lawyers

Answer 23

a. MR 1.7
i. A lawyer shall not represent a client if there is a concurrent conflict of interest
ii. A concurrent conflict of interest exists if there is a significant risk that representation will be materially limited by … the personal interest of the lawyer.
b. MR 1.7 Comment 11
i. When related lawyers represent different clients in substantially related matters there is a significant risk that the clients confidences will be revealed, & the Lawyers family relationship will interfere with both loyalty and independent professional judgement.
ii. Each client is entitle to know the existence and implications of the relationship before the lawyer undertakes representation.
iii. Representation is not allowed unless clients give informed consent.
c. MR 1.10 (a)(1):
Disqualification arising form a personal relationship is