conflicts of interest Flashcards
General duties of loyalty
You always put your client first and work in their best interests
representing opposing parties in same suit
never ok
resolving conflicts of interest
Reject representation unless, the attorney reasonably believes their will be no adverse effect and the client gives written consent.
This is a continuing duty and the duty of loyalty must be met every time their is a potential conflict
Discovery of conflict of interest after acceptance of representation
If the conflict can not be resolved, then the attorney must withdraw
imputed disqualification
If one attorney at a firm has a conflict, the whole firm has an exception
imputed disqualification and government officials
- matter specific
- must be screened
- No fee splitting
- government agency must be notified to ensure compliance
Getting informed consetn
If you have to disclose confidential information to get informed consent, then you can’t get informed consent
Conflicts of interest between client
When your representation of one client materally limits or is adverse to your other client
Aggregate settlements or guilty pleas
Requires that the attorney inform the client about the nature and extent of all settlements or pleas and each client consents in writing
Neutral third party
If the lawyer reasonably believes she can represent the interest of each party effectively, the attorney discloses her role to both a lawyer may act as a neutral third party
Attorney and client conflicts
do not result in imputed disqualification
Financial assistance to clients
Lawyers shall not give financial assistance to a client in connection with contemplated or pending litigation except
Litigation expenses for indigent client
or
litigation expenses in contingency fee cases
Business transactions with clients
business transactions between lawyers and clients are permissible if
1. the terms are fair and reasonable
- the terms are fully disclosed and reasonable
- And the client is advised in writing to seek third party counsel
- written informed consent is given
publication and media rights
A lawyer must not acquire media rights relating to the representation of a client prior to the end of that representation
Acquiring interest in litigation
Not allowed except
- lien to secure fees
- contigency fees
Attorney as a witness
An attorney may not represent a client in a trial where the attorney is likely to be called as a witness except
- testimony only relates to an uncontested matter
- the testimony is regarding the value of legal services rendered
- disqualification would result in substantial hardship to client
Opposing former client
An attorney may not be materially adverse to a former client if the current matter is substantially adverse to the former representation without informed consent of the client
an attorney may not oppose a former client if they have confidential information from the prior representation that would damage the client and that information could be used to the disadvantage of the former client unless the former client gives informed consent or the information is generally known.
Representing entities
- Attorney owes duty to entity, not constituents
- if the attorney knows or should know that a conflict has arisen between the entity and a constituent, the attorney must inform the constituent they represent the entity
- a lawyer representing a constituent may also represent an entity if the attorney believes they can represent both and consent is required.
- if a constituent acts in a manner that could cause harm to the entity, the attorney must work to prevent that harm.
The attorney may ask the constituent to reconsider their actions,
The attorney must report the matter to a higher authority,
If the highest authority fails to take appropriate timely action the attorney may report the information to an appropriate outside entity
third party payments for legal services
allowed with informed consent of client (does not have to be written)
the payment must not interfere with attorney client privilege
attorney client privilige must remain
