Conflicts of interest

Question 1

Rule 1.7(a): Conflicts of Interest: Current Clients

Answer 1

(a) General Rule: Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly
adverse to another client; OR

   (2) there is a significant risk that the representation 
   of one or more clients will be materially limited by 
   the lawyer's responsibilities to another client, a 
   former client or a third person or by a personal 
  interest of the lawyer.

Question 2

Rule 1.7(b): Conflicts of Interest: Current Clients

Answer 2

(b) the exception: notwithstanding the existence of a concurrent conflict of interest under (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer 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

Question 3

Rule 1.8(a): Current Client Conflicts

Answer 3

(a) A lawyer shall 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 on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Question 4

Rule 1.8(b): Current Client Conflicts

Answer 4

(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these

Question 5

Rule 1.8(c): Current Client Conflicts

Answer 5

(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client
- For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.

Question 6

Rule 1.8(d): Current Client Conflicts

Answer 6

(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

Question 7

Rule 1.8(e): Current Client Conflicts

Answer 7

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter;
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; and

(3) humanitarian exception: a lawyer representing an indigent client pro bono, a lawyer representing an indigent client pro bono through a nonprofit legal services or public interest organization and a lawyer representing an indigent client pro bono through a law school clinical or pro bono program may provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses. The lawyer:
• (i) may not promise, assure or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention;
• (ii) may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client; and
• (iii) may not publicize or advertise a willingness to provide such gifts to prospective clients.
Financial assistance under this Rule may be provided even if the representation is eligible for fees under a fee-shifting statute.

Question 8

Rule 1.8(f): Current Client Conflicts

Answer 8

(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.

Question 9

Rule 1.8(g): Current Client Conflicts

Answer 9

o(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client.

• The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

Question 10

Rule 1.8(h): Current Client Conflicts

Answer 10

(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

Question 11

Rule 1.8(i): Current Client Conflicts

Answer 11

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.

Question 12

Rule 1.8(j): Current Client Conflicts

Answer 12

(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Question 13

Rule 1.8(k): Current Client Conflicts

Answer 13

(k) imputation: While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them. (all but (j) are imputed)

Question 14

Rule 1.13(a): Organizational Clients

Answer 14

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

Question 15

Rule 1.13(b): Organizational Clients

Answer 15

(b) Fiduciary duty
If a lawyer for an organization

• knows that an officer, employee or other person associated with the organization
• is engaged in action, intends to act or refuses to act in a matter related to the representation
• that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization,
• and that is likely to result in substantial injury to the organization
• then the lawyer shall proceed as is reasonably necessary in the best interest of the organization
• Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law

Question 16

Rule 1.13(c): Organizational Clients

Answer 16

(c) Disclosure
Except as provided in paragraph (d), if

(1) despite the lawyer’s efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization
- then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.

Question 17

Rule 1.13(d): Organizational Clients

Answer 17

(d) Paragraph (c) shall not apply with respect to information relating to a lawyer’s representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.

Question 18

Rule 1.13(e): Organizational Clients

Answer 18

(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer’s actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the

Question 19

Rule 1.13(f): Organizational Clients

Answer 19

(f) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.

Question 20

Rule 1.13(g): Organizational Clients

Answer 20

(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents (subject to the provisions of Rule 1.7.)
- If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

Question 21

Rule 1.18(c): Duties to Prospective Clients

Answer 21

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially 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 as provided in paragraph (d)
- If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter (except as provided in paragraph (d))

Question 22

Rule 1.18(d): Duties to Prospective Clients

Answer 22

(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, OR:

(2) 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
• (i) the disqualified lawyer is timely screened from the matter and its fees, and
• (ii) written notice is promptly given to the prospective client.

Question 23

Rule 1.9(a): Former Client Conflicts

Answer 23

(a) attorney as former rep: A lawyer who has formerly represented a client in a matter shall 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 the former client gives informed consent, confirmed in writing

Question 24

Rule 1.9(b): Former Client Conflicts

Answer 24

(b) firm as a former rep: A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

Question 25

Rule 1.9(c): Former Client Conflicts

Answer 25

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Question 26

Rule 1.10(a): Imputation of Conflicts (private sector)

Answer 26

(a) general rule: While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless
(1) personal interest exception: the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or

(2) current firm exception: the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, and
• (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom
• (ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule,
- which shall include a description of the screening procedures employed; a statement of the firm’s and of the screened lawyer’s compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and
• (iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client’s written request and upon termination of the screening procedures.

Question 27

Rule 1.10(b): Imputation of Conflicts (private sector)

Answer 27

(b) former firm exception: When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.

Question 28

Rule 1.10(c): Imputation of Conflicts (private sector)

Answer 28

(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.

Question 29

Rule 1.10(d): Imputation of Conflicts (private sector)

Answer 29

(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11

Question 30

Rule 1.11(a): Special Conflict Rules for Former and Current Government Employees

Answer 30

(a) former gov attorney: Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.

Question 31

Rule 1.11(b): Special Conflict Rules for Former and Current Government Employees

Answer 31

(b) imputation: When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

Question 32

Rule 1.11(c): Special Conflict Rules for Former and Current Government Employees

Answer 32

(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.
- As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public.
- A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom

Question 33

Rule 1.11(d): Special Conflict Rules for Former and Current Government Employees

Answer 33

(d) current gov attorney: Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and

(2) shall not:
• (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or
• (ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions in that rule

Question 34

Rule 1.11(e): Special Conflict Rules for Former and Current Government Employees

Answer 34

(e) As used in this Rule, the term “matter” includes (super broad):
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.