Conflicts of Interest: Current, Prospective and Former Clients Flashcards
1.9- Duties to Former Clients
(a) Prohibits representation of a new client (absent consent in writing) if the new representation would involve a substantially related (same transaction or legal dispute) matter and material adversity.
(b) 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. (when lawyer moves from one firm to another)
1- whose interests are materially adverse
2- about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c)
Unless former client gives written consent
(c) A lawyer who has formely represented a client in a matter or whose present or former firm has formely represented a client in a matter shall not thereafter.
1- use information relating to the representation to the disadvantage of the former client unless the information became generally known.
2- reveal information relating to the representation
Rule 1.7: Conflict of Interest/Former clients
(a) a lawyer shall not represent a client if the representation involves concurrent conflict of interest.
1. Directly adverse interests
- —Comment 6: Direct adversity: loyallty to a current client prohbiits undertaking representation directly adverse to that client without the client’s informed consent. Direct adversity exists when a L acts as an advocate in one matter against a person the L represents in some other matter even when the matters are unrelated.
2. Significant risk that representation will be materially limited by the lawyer’s responsibilites to another client, a former client or a third party or by a personal interst of the lawyer
(b) a lawyer may represent a client if:
1. L reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client
2. representation is not prohibited by law
3. representation does not involve the assertion of a claim by one client against another represented by the lawyer in the same litigation or other proceeding
4. each affected cleint gives informed consent, in writing.
Situation: Lawyer knows or might have had access to information from a former client that could be used adversely to the former client
Possible interest harmed: Breach of commitment to keep confidences of former client.
Waivable: Yes, by informed consent of former cleint
Rule: 1.9
New cleint wants lawyer to sue lawyer’s former client, whom lawyer represented for years on a variety of matters
Possible interest harmed: Lawyer’s advocacy on behalf of new client might be compromised by relationship to former client.
Waivable: Yes, by informed consent of present and former clients, unless the conflict is so severe that the lawyer could not REASONABLY BELIEVE that he could provide competent and diligent representation to new client
Rule: 1.9, 1.7
When is there a substantial relationship b/w one matter and another?
If the involve the same transaction or legal dispute OR if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would MATERIALLY advance the client’s position in the subsequent matter
Substantially related analysis
- Do the matters involve the same transaction or legal dispute?
- Is there a substantial risk that a lawyer representing a client in a mtter like the one handled for the former client would NORMALLY HAVE LEARNED CONFIDENTIAL INFORMATION IN THE FIRST MATTER THAT COULD BE SUED TO MATERIALLY ADVANCE THE NEW CLIENT’S POSITION IN THE SECOND MATTER?
- What types of information would a lawyer handling a matter like the first one normally acquire?
- Would that information (if revealed) provide the second client with a material advantage? - If both these questions are a yes, two matters are substantially related
- If substantially related, the lawyer may not represent the new cleint unless the former client gives informed consent.
Substantially related analysis
- Do the matters involve the same transaction or legal dispute?
- Is there a substantial risk that a lawyer representing a client in a mtter like the one handled for the former client would NORMALLY HAVE LEARNED CONFIDENTIAL INFORMATION IN THE FIRST MATTER THAT COULD BE SUED TO MATERIALLY ADVANCE THE NEW CLIENT’S POSITION IN THE SECOND MATTER?
- What types of information would a lawyer handling a matter like the first one normally acquire?
- Would that information (if revealed) provide the second client with a material advantage? - If both these questions are a yes, two matters are substantially related
- If substantially related, the lawyer may not represent the new client unless the former client gives informed consent.
Materially Adversity
Synonomous with direct adversity
Rule 1.18: Duties to Prospective Clients
a) . A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
b) . Even when no relationship ensues, if L has learned information, information SHALL not be used or revealed, except as 1.9 would permit.
c) . L subject to (b) shall not represent client with interests MATERIALLY ADVERSE to those of a prospective client in the same sub. related matter if L received info from p. client that could be signficantly harmful to that person in the matter. If L disqualified from representing, no L in firm associated with L may KNOWINGLY undertake or continue representation
d) . Representation if PERMISSIBLE, despite receiving disqualifying info if:
1. Both the affected cleint and the prospective client have given informed consent, CONFIRMED in writing; or
2. zthe L who received the info took reaosnable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
i. the disqualified L is timely screened form any participation in the matter and is apportioned no part of the fee therefrom; and
ii. written notice is promtly given to the prospective client
Prospective client advances waivers
Comment 5: Can condition consultation on agreement that no disclosure during the consultation will prevent the lawyer from representing another client in the matter
Comment 5: Prospective client can also consent to the future use of confidential information
Rule 1.13: Representing Organiations
A L employed or retained by an organization represents the organization acting through its duly authorized consitutents.
Representing Organizations: Confidentality
- Usually no duty to keep employee’s communications confidential
- Upjohn warnings: Subject matter test: Any employee or agent of the corporation with information on the subject matter of the litigation or investigation is considered the client for the purposes of the attorney-client privilege.
Upjohn Warnings
Before speaking with employees, the L for a corp must explain:
- The L is the L for the organization and not for any constiuents
- The conversation is privileged but the privilege belongs to the organziation not the witness
- Info may be shared with others in the company and the company may choose to waive, disclosing to 3rd parties including government
- The employee should keep conversation confidential
Rule 1.10(a): Imputation
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 and 1.9 unless the conflict is based on a personal interest of the lawyer…
- If i have a conflict of interest by which I HAVE TO WITHDRAW that means that all my partners and all my associates have that too and cannot represent them, unless it is based on a personal interest (e.g. I can’t represent a client in suing corp because I have an interest in the corp. Partner could represent that client)
- If one lawyer in the firm has a conflict of interest, then you as well has a conflict of interest (unless its personal)
- —Even if the L represented them from a prior firm
- – Prospective clients apply
Representing Economic Competitors
Suppose there are two major pharmceutical companies in a particular location. A law firm represents both of them unrelated cases against third parties. Is this a problem?
Ordinarily it would not be. MR 1.7, Cmt 6. BUT if a L does extensive work for a client, it might become difficult to represent an economic competitor without using or revealing confidential info. If so, cannot represent both.
MR. 1.7 Positional Conflicts, Cmt 24
Factors in determining whether there is a positional conflict:
o Trial or appellate court
o Substantive or procedural issue
o Temporal relationship between matters
o Practical significance to the immediate and long run interests of the client
Case top Gun (city hires law firm to do pro bono case on banning guns. Paying pharma company calls and says if this case is won it could be precedent for charging pharma company with overdose deaths.)
