Conflicts of interest Flashcards
Disqualification is necessary where there is either an
actual conflict of interest regarding the lawyer’s duty of loyalty to the client or
where there is a potential conflict, and the client, after being so informed, does not accept the arrangement.
What is the general rule for the firm when one attorney is disqualified from representing a client?
What type of disqualification is this? and what presumption is it based on?
As a general rule, when one attorney is disqualified, the whole firm is also disqualified. This is called imputed disqualification and is based on a presumption that all partners and associates in a firm know about all cases. The knowledge of one lawyer working on a case is “imputed” to all the others while that lawyer is at the firm.
When a lawyer leaves or joins a firm, the key to analyzing whether a firm is disqualified because of a conflict of interest is to determine
who knows what. Think of knowledge as a contaminant; lawyers in firms are presumed to have contaminated each other with their knowledge. Thus, when a lawyer leaves a firm, the question is whether he took all of the contaminant with him, or whether other law- yers are actually contaminated with the departing lawyer’s knowledge.
As an exception to imputed disqualification, a If a lawyer is prohibited from representing a client based on his own personal interest, other lawyers in the firm will not be precluded from representing the client if:
hint risk
the prohibited lawyer’s disqualification does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
If the lawyer is prohibited from representing a client based on both his duties to a former client and association with a prior firm, other lawyers in the firm will not be precluded from representing
client if:
3 conditions
Note: any of the mentioned imputed disqualifications the disqualification can be waived and the representation rendered ethically permissible if the lawyer obtains, from each affected client, informed written consent.
If a his the
(1) (2) (3) (4)
lawyer is prohibited from representing a client based on both his duties to a former client and association with a prior firm, other lawyers in the firm will not be precluded from representing
client if:
the disqualified lawyer is timely screened from any participation in the matter; the disqualified lawyer is not apportioned any part of the fee;
written notice is promptly given to any affected former client; and
certifications of compliance with these Rules and with the screening procedures are provided to any affected former client upon the former client’s written request and upon termination of the screen procedures.
NOTE
not be precluded from representing the
client if:
1. the disqualified lawyer is timely screened from any participation in the matter;
2.the disqualified lawyer is not apportioned any part of the fee;
written notice is promptly given to any affected former client; and
3.certifications of compliance with these Rules and with the screening procedures are provided to any affected former client upon the former client’s written request and upon termination of the screen procedures.
Except for ___________, a lawyer may not obtain a proprietary interest in the client’s cause of action or subject matter of litigation.
a lien (authorized by law) to secure his fee or a reasonable contingency fee (in a civil case)
A lawyer must not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms are fair and reasonable to the client;
(2) the terms are fully disclosed in writing in a manner reasonably understandable by the client;
(3) the client is advised in writing of the desirability of seeking advice of an independent lawyer;
(4) the client is given a reasonable opportunity to seek the advice of an independent lawyer; and
(5) the client gives informed consent in writing of the essential terms of the transaction and the lawyer’s role in the transaction.
A lawyer is prohibited from representing a client if the representation might be materially limited because of the lawyer’s responsibilities to a third person, unless:
4 conditions
(1) the lawyer reasonably believes that he will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
A conflict of interest can occur when a third party pays the lawyer to represent a client. A third party may pay for a client’s representation only if:
(1) the client gives informed consent;
(2) there is no interference with the lawyer’s independent professional judgment or with the client- lawyer relationship; and
(3) confidentiality is preserved.
In a business context, such a conflict can arise in insurance liability cases, where the company pays for defense of the client. If a conflict arises between the interest of the company and the interest of the client because a claim is made for damages over the policy limits or because one theory for liability is not covered by the policy, the company must
advise the insured to obtain independent counsel.
In the family context, a parent often pays for the representation of a minor child accused of a crime. The lawyer must independently represent the child and not defer to the parent. Likewise, unless the client consents, the lawyer cannot cannot reveal to the parents protected information involved in the representation.
T of F A former government lawyer cannot join a firm that has clients with direct conflicts with the government agency, and about which the attorney possesses protected information.
False they can
A former government lawyer who enters private practice is prohibited from representing a client in connection with a matter in which the lawyer has personally and substantially participated as a public officer or employee, unless
the government agency gives informed written consent.
Does Personal involvement include general supervisory authority over the matter? Give an example
NO Personal involvement does not include general supervisory authority over the matter;
example: for example, a district attorney who supervises an office of 50 lawyers would be disqualified only with respect to those cases the district attorney handled personally.
T of F A lawyer who had such personal involvement will be disqualified even if the new representation is not adverse to the government.
True
Other lawyers in the former government lawyer’s new firm may handle matters the former government lawyer participated in while in public service. The only restrictions are that:
(1) the former government lawyer must be effectively screened from any participation in the matter;
(2) the former government lawyer must not be apportioned any part of the fee; and
(3) written notice must be promptly given to the appropriate government agency to enable it to ascertain compliance with the provision of this Rule.
If the lawyer is switching from one government agency to another government agency, the new agency is treated like a
client
A lawyer currently serving as a government attorney may not participate in a matter in which he was personally and substantially involved in while in the private sector. Nor can the lawyer negotiate
for private employment with anyone in whose matter he is presently personally and substantially involved, except that
a law clerk to a judge, other adjudicative officer, or arbitrator may negotiate for private employment, but only after notifying the judge or other adjudicative officer.
A lawyer may not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, law clerk, or arbitrator, unless
all parties give informed consent, confirmed in writing.
However, an arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.
A lawyer may not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or as a law clerk to such a person, or as an arbitrator, mediator, or other third-party neutral, unless
all parties give informed consent, confirmed in writing.
No lawyer in a firm associated with a lawyer disqualified from a representation under this Rule can undertake or continue representation in the matter unless:
(1) the disqualified lawyer is screened from any participation in the matter and
(2) is apportioned no part of the fee; and
(3) written notice is promptly given to the parties and any appropriate tribunal so that it may ensure compliance with the provisions of this Rule.
A lawyer must not represent a client if the representation is directly adverse to another client or materially limited by the responsibilities to another client, a former client, a third party, or by the lawyer’s own interests, unless
4 conditions
- the lawyer reasonably believes he will be able to provide competent and dili- gent representation to each affected client;
a. Reasonably believes denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable
b. Reasonable when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. - the representation is not prohibited by law;
- the representation does not involve the assertion of a claim by one client against another client represented by the same lawyer in the same litigation or other proceeding before a tribunal; and
- each client gives informed consent in writing.
T or F A lawyer may ask a client to waive conflicts in advance if the client is an experienced user of the legal services involved and is reasonably informed of the risks
True
Common representation of persons having similar interests is proper if
if the lawyer reasonably believes that the risk of adverse effect is minimal, and all persons have given their informed consent to the multiple representations.
Where a lawyer represents two or more clients, the lawyer may not make an aggre- gate settlement of the claims of or against the clients or, in a criminal case, make an aggregated agreement as to guilty or pleas, unless
unless each client consents in writing after consultation [MR 1.8(g)].
A lawyer who has formerly represented a client in a matter may not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless
unless the former client consents in writing after consultation [MR 1.9(a)].
Hypothetical In 1991, Loretta represented Fran in an action for encroachment (intrusion to another’s rights) against Fran’s next-door neighbor, Paul. In 1993, Paul approached Loretta and asked her to sue Fran for trespass, because he still feels that the property she claims as her own actually belongs to him. Can Loretta take the case?
No unless the former client consents.
When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is _________.
prohibited
T or F a lawyer who recurrently handled a type of problem for a former client is precluded from later representing another client in a wholly distinct problem of that type when the subsequent representation involves a position adverse to the prior client
False, the lawyer is not precluded from representing a client in a wholly distinct problem even when the subsequent representation involves a position adverse to the prior client.
The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be
justly regarded as a changing of sides in the matter in question [Id.].
Even when no client-lawyer relationship ensues, a lawyer who has learned informa- tion from a prospective client may not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client [MR 1.18(b)].
a. Such an attorney may not represent a client with interests adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except if either of the following applies
both the affected client and the prospective client have given informed consent, confirmed in writing; or
the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client, and both of the following apply:
(a) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee; and
(b) written notice is promptly given to the prospective client.
In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether to undertake a new matter should?
should limit the initial consul- tation to only such information as reasonably appears necessary for that purpose
Even in the absence of an agreement between the attorney and the client that the attorney is not prohibited from representing a client whose interests are adverse to the prospective client, the lawyer is not prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter unless: hint info
unless the lawyer has received from the prospective client information that could be significantly harmful if used in the matter
Imputed disqualification does not apply if the lawyer is being disqualified because he is a necessary witness unless the
unless the testifying lawyer would also be disqualified from the representation due to a conflict of interest
A former government lawyer can join a firm that has clients with direct conflicts with the government agency, and about which the attorney possesses protected infor- mation. However, the lawyer is prohibited from representing a client in connection with a matter in which the lawyer?
which the lawyer has personally and substantially participated as
a public officer or employee unless the government agency gives written informed consent
T or F A lawyer who had such personal involvement with a government case will be disqualified even if the new representation is not adverse to the government.
True
Hypothetical: When Jonathan was an attorney with Hail & Farewell, he represented Tommy. Jonathan is now a district attorney and has been assigned to prosecute Tommy for bank fraud. Should Jonathan decline to prosecute Tommy?
yes
A lawyer may not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or as a law clerk to such a person, or as an arbitrator, mediator, or other third-party neutral, unless
all parties give informed consent, confirmed in writing
