Conflicts of Interest - Individuals Flashcards
What is the first type of conflict of interest?
Concurrent Representation of Conflicting Interests [ABA Model Rule 1.7]
What’s the two-part test for a concurrent conflict of interest?
A concurrent conflict of interest exists if:
(1) Directly Adverse; or [ABA Model Rule 1.7(a)(1)
(2) Significant risk of material limitation. [ABA Model Rule 1.7(a)(2)]
What are the four requirements for a lawyer to continue representing a client despite a conflict?
(1) Reasonable belief that no harm result [ABA Model Rule 1.7(b)(1)]
(2) The representation will not violate any law [ABA Model Rule 1.7(b)(2)]
(3) No conflicting duties in the same proceeding [ABA Model Rule 1.7(b)(3)]
(4) All affected clients must give informed consent in writing [ABA Model Rule 1.7(b)(4)]
What is the second type of conflict of interest?
Successive Representation of Conflicting Interests [ABA Model Rule 1.9]
What are the primary elements of a successive conflict of interest?
(1) Same or substantially related matters; and [ABA Model Rule 1.9(a)]
(2) material adverseness of interests [ABA Model Rule 1.9(a)]
What is the third type of conflict of interest?
Private/Government [ABA Model Rule 1.11; ABA Model Rule 1.12]
Can a former government lawyer work for someone whose matters they were personally and substantially involved in dealing with without breaching the Private/Government Conflict?
A former government lawyer can’t work for someone whose matters they were personally and substantially involved in dealing with unless the government agency they used to work for gives informed consent in writing. [ABA Model Rule 1.11(a)(2)]*
*Example: A lot of former FDA officials switched to working for Purdue Pharma after OxyContin went big. This is to prevent that.
What type of conflict arises under the Government/Private conflict for judges or neutrals?
Can’t work for anyone whose matter you participated personally and substantially in the adjudication of unless all the parties to the proceeding give informed consent in writing.* [ABA Model Rule 1.12(a)]
*Includes Law Clerks
Can former judges or adjudicative officials negotiate for employment with a person who is involved as a party r as a lawyer for a party in a matter 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?
No. There is an exception for law clerks serving the actual judge or adjudicative officer, but even then, they must notify their judge or respective adjudicative officer. [ABA Model Rule 1.12(b)]
What is the fourth type of conflict of interest?
Personal Conflicts of Interest
What is the catch-all rule for Personal Conflicts of Interest?
ABA Model Rule 1.7(a)(2)
(2) there is 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.
What is the first ABA Model Rule 1.8 bright-line conflict of interest?
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory interest, 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.
What is the second ABA Model Rule 1.8 bright-line conflict of interest?
(b) A lawyer shall not use information relating to the representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
What is the third ABA Model Rule 1.8 bright-line conflict of interest?
(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 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.
What is the fifth ABA Model Rule 1.8 bright-line conflict of interest?
(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) 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.
