Conflicts of Interest

Question 1

R1.7 current client conflicts main rule

Answer 1

o (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
o where a lawyer’s ability to advocate all possible positions that each client might take because of the lawyer’s duty of loyalty to other clients
• **the mere possibility of subsequent harm does not itself require disclosure and consent
• also applies to Xs with personal interests of the lawyer, such as fiduciary duties arising from a lawyer’s serving as a trustee/executor/corporate director (so not just A-C relationships)

Question 2

rule regarding repping clients where the lawyers are related/married

Answer 2

where lawyers repping different clients in the same or substantially related matter are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer’s relationship will interfere with both loyalty and independent professional judgment
 **thus, a lawyer related to another lawyer ordinarily may not rep a client in a matter where that lawyer is repping another party, unless each client gives informed consent
 **disqualification arising from close family relationships is ordinarily not imputed to members of the lawyer’s firm

Question 3

R1.7 exception (consentable conflicts) (4 parts)

Answer 3

o (b) the exception (consentable Xs): notwithstanding the existence of a concurrent conflict of interest under paragraph (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
• i.e. no repping opposing parties in litigation (for Xs between co-∆s or co-s, look to (a)(2))
 (4) each affected client gives informed consent, confirmed in writing

Question 4

rule regarding continuous rep of one of the clients after withdrawal from the other due to conflict

Answer 4

• where more than one client is involved, whether the lawyer make continue to rep any of the clients is determined both by the lawyer’s ability to comply w duties owed to the former client and by the lawyer’s ability to rep adequately the remaining client(s), given the lawyer’s duties to the former client
o **ordinarily, the lawyer will be forced to w/d from repping all clients if common representation fails (consider privilege and confidentiality ramifications)
o if you drop one client because of a X, R1.9 still prohibits rep of a client (the one you kept) and a former client (the one you dumped) unless you get consent

Question 5

rule for class actions (cmt 25)

Answer 5

• unnamed members of the class are ordinarily not considered to be clients of the lawyer for purposes of (a)(1)

Question 6

rule for org clients and their affiliates

Answer 6

• rule: a lawyer who reps a corp/organization does not, by virtue of that rep necessarily rep any affiliated organization
• thus, the lawyer is not barred from accepting rep adverse to an affiliate in an unrelated matter unless the circumstances are such that:
o the affiliate should also be considered a client
o there is an understanding between the lawyer and org that the lawyer will avoid such adverse rep, or
o the lawyer’s obligation to either client is likely to materially limit the rep of the other client

Question 7

R1.8 entering into business transaction w client

Answer 7

o (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
• **client need not actually be represented – just need fair opportunity to seek rep
 (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
 **note: these requirements must be met even when the transaction is not closely related to the representation
 **note: R1.7 may apply when the lawyer’s financial interest otherwise poses a significant risk that the lawyer’s rep will be materially limited by that interest

Question 8

R1.8 rule regarding literary rights

Answer 8

o (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
 **this rule does not prohibit a lawyer repping a client in a transaction concerning literary ppty from agreeing that the lawyer’s fee shall consist of a share in ownership of the ppty (so long as the arrangement conforms to the fairness standards of R1.5)

Question 9

R1.8 rules regarding limiting liability

Answer 9

o (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
• **see here, the client must be actually represented because this is an advanced waiver and the client likely doesn’t have sufficient foresight to decide for themselves
 (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
• **client need not actually be represented
 this paragraph does not:
• prohibit a lawyer from entering into a binding arbitration agreement (so long as the client is fully informed)
• limit a lawyers ability to practice in the form of a limited-liability entity
• prohibit the lawyer from generally narrowing the scope of rep under R1.2

Question 10

R1.8 rule regarding acquiring a ppty interest in the cause of action

Answer 10

o (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
 **both of these must also comply with R1.5(a) and be manifestly reasonable

Question 11

R1.13 lawyer fiduciary duty to org and exception (notice)

Answer 11

o (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 12

R1.13 lawyer fiduciary duty to org and exception (disclosure)

Answer 12

o (c) disclosure
 except as provided in paragraph (d), if
• (1) despite the lawyer’s efforts in accordance with paragraph (b) the highest authority 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 R1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization

o (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 13

R1.18 duty to prospective client (and exception)

Answer 13

o (c) a lawyer subject to paragraph (b) shall not represent a client w interests materially adverse to those of a prospective client in the same/substantially related matter IF the attny received info 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 rep under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue rep in such a matter (except as permitted by paragraph (d))
 if you received no potentially significantly harmful info – no prohibition on representation

o (d) when the attny has received disqualifying info as defined in paragraph (c), rep is permissible if:
 (1) both clients have given written informed consent, OR
 (2) attny who received the info took reasonable measures to avoid exposure to more disqualifying info than was reasonably necessary to determine whether to rep 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 14

R1.9(a) attny as former rep

Answer 14

o (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 15

R1.9(b) firm as former rep

Answer 15

o (b) firm as 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
• **so this rule only operates to disqualify the lawyer when he has actual knowledge of info protected by R1.6 and 1.9(c) – thus, if a lawyer while with one firm acquired no knowledge or info relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from repping another client in the same/related matter even though the interests of the two clients conflict

 **this rule examines whether the lawyer brings the old firm’s conflicts with her (distinguish from R1.10(b))

Question 16

R1.10(a) general imputation rule

Answer 16

o (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
o 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
o if compliance cannot be certified, the certificate must describe the failure to comply
• **note: no informed consent required (unlike paragraph (c))
• **applies to former clients where the attorney has changed firms

Question 17

definition of screening and when it applies (5 scenarios)

Answer 17

o screening (R1.0(k)): isolation of a lawyer from any participation in a matter through the timely imposition (as soon as practicable) of procedures within a firm that are reasonably adequate under the circumstances to protect info that the isolated lawyer is obligated to protect under these Rules/other law

 screening is permitted in the following scenarios:
• where the X arises out of a lawyer’s association with a prior firm (R1.10)
• where the X involves work in which a lawyer was involved before that person became a lawyer (R1.10)
• where the X involves work done by a former govt lawyer while that person was in the govt and where the govt lawyer has joined a law firm that seeks to rep or is repping a client whose interests conflict with the govt lawyer’s prior work (R1.11)
• where one lawyer received confidential info from a prospective client who did not become an actual client, and the lawyer’s firm seeks to rep or is repping a client whose interests conflict with those of the prospective client (R1.18)
• where a lawyer is disqualified from working on a matter because the lawyer previously worked on the matter as a judge/law clerk/arbitrator/mediator/or similar role (R1.12)

Question 18

R1.10(b) former firm exception to imputation

Answer 18

o (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: (i.e. “X leaves the firm with the lawyer, 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
 (applies regardless of when the formerly associated lawyer repped the client)
 **this rule examines whether the old firm retains the conflicts created by the work of the moving lawyer (distinguish from R1.10)

Question 19

R1.11 former govt attny conflict rule

Answer 19

o (a) former govt attny: 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
 **former govt lawyers are guided by this rule instead of R1.9(a)
 **note that this rule requires no inquiry about the degree of adversity

Question 20

R1.11 former govt attny imputation rule

Answer 20

o (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
 **R1.10 is not applicable to the Xs addressed by this rule

Question 21

R1.11 former govt attny w confidential info

Answer 21

o (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

Question 22

R1.11 former private attny conflict rule

Answer 22

o (d) current govt attny: 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
o this paragraph considers govt consent, but the rule also includes a reference to R1.7 and R1.9 because you may also have to consider Xs with other parties
o **no screening option here!
• (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 of that rule
 **note that there is no imputation rule accompanying paragraph (d)

Question 23

key points distinguishing 1.11 from other conflict rules

Answer 23

• former govt lawyers are to evaluate the potential impact of conflicts on former govt clients under R1.11(a) through (c) instead of R1.9(a)
• present govt lawyers are subject to the restrictions of R1.9(a) in addition to those stated in R1.11
• both groups are subject to restrictions impose by R.1.7
• both groups are subject to R1.9(c)
• **the differences in the rules governing these two groups are in the standards used to evaluate other successive conflicts and who must consent
• **if the work would be adverse to a former client, the govt lawyer must ask whether it is both substantially related and involves material adversity – if so, the lawyer can’t do the work without the consent of the former client – even if the new work is not adverse to the interests of a former client but involves a matter on which the lawyer did a lot of work in private practice, the govt lawyer is precluded from working on it unless the current employing agency gives its consent

Question 24

R1.12 former adjudicator representation

Answer 24

o (a) except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing

Question 25

R1.12 current adjudicator employment

Answer 25

o (b) a lawyer shall not negotiate for 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 as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral
 a lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer
 **this paragraph is written in the present tense and appears not to prohibit the lawyer-adjudicator from employment negotiation after the adjudication has concluded

Question 26

R1.12 former adjudicator imputation

Answer 26

o (c) imputation: if a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the 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
• see R1.0(k) for screening procedure requirements
 (2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule