Conflicts of Interest Flashcards
When does representation of a current client create a disqualifying conflict of interest?
- Direct adversity - to another current client, 1.7a1
2. Material limitation - risk of limitation by another interest, 1.7a2
Notwithstanding a current client conflict, how may be representation be undertaken?
Per 1.7b,
- Reasonable belief in competent and diligent representation
- Rep not prohibited by law
- No assertion of claim against another client
- Informed consent in writing of both
What types of direct adversity conflicts are there, and what are the implications?
- Single matters: improper if in current proceeding
- Unrelated matters: require informed consent of both
In a direct adversity unrelated matter situation, what’s the impact of one party being a former client instead of a current one?
1.7a only applies if both are current. 1.9a controls former client conflicts; conflict is consentable if matters aren’t substantially related.
How do we tell whether a client is current or former?
- Current matter?
- Annual retainer?
- Expectation of continuing relationship (Levin)?
(1) Duration of representation / relationship
(2) Number of matters handled
(3) Nature of relationship per engagement agr.
(4) Total fees paid to firm
How do we look at conflicts involving corporate groups?
Functional approach (GSI Commerce):
(1) Operational commonality
- Common infrastructure
- Shared personnel
- Shared responsibility for legal services
(2) Financial dependence
Can a lawyer / firm represent clients with potentially inconsistent legal positions?
Yes - unless “significant risk” of “materially limit[ed] effectiveness”. See:
- Where cases are pending
- Issue: procedural vs. substantive
- Temporal proximity of matters
- Importance of issue to clients
- Clients’ reasonable expectations at retention, RST 128
If conflict arises, consentable (but both).
Can a client waive their consent to a conflict in advance?
Yes, provided they identify the specific client against whom they are waiving, Cleveland Electric.
Odds of enforcement rise with (id):
(1) Specificity of document
(2) Client’s sophistication
(3) Participation by GC / independent counsel
What steps should a lawyer take to decide whether multiple representation in a business deal is proper?
See 1.7, cmt. 2.
(1) Identify client
(2) Determine whether conflict exists
(3) Analyze whether consentable (competence + diligence):
(4) Consultation with clients
In multiple representation in business deals, how do we determine whether a conflict is consentable?
- Fundamental antagonism
- Impartiality
- Need for confidentiality
- Capacity for responsibility
What potential conflicts could arise in representing multiple plaintiffs in a tort case?
- Claims against each other
- Aggregate settlement issues
- Inadequate insurance
- Who goes to trial first
What must you disclose in order to provide informed consent in multiple representation?
Per 1.7, cmt. 18:
- Rights to separate counsel
- Pros of multiple rep (cost, united front)
- Cons of multiple rep (impact on loyalty)
- Duty to withdraw if conflict arises
- Lack of ACP later on
Can you jointly represent criminal co-defendants?
Yes, if there’s no direct conflict and written informed consent of both, 1.7b4.
Can you represent a client against a former client?
If matters are same / substantially related, need written informed consent of both, 1.9a. If they aren’t, all good. Can’t attack any work product done for former client, 1.9 cmt. 1.
When are matters substantially related?
(1) Current matter involves work lawyer did for former client, OR
(2) “Substantial risk” that rep will involve use of previously acquired info, unless generally known, RST 132.
