Conflicts of Interest Part 2 Flashcards
What is a lawyer’s duty of confidentiality to former clients?
Even after representation ends, a lawyer has a continuing obligation not to reveal or use confidential information gained during the representation. [Rule 1.9(c)]
Example: A lawyer who retires and sells their law firm must get client consent before transferring files with confidential information.
When can a lawyer use information from a former client?
Only if:
1. The client gives informed written consent,
2. The info is generally known (publicly available), or
3. An exception to Rule 1.6 applies (e.g., to prevent death or serious harm).
Example: If a client’s drug addiction is reported in the news, the lawyer may use that info in unrelated litigation.
When is a lawyer barred from opposing a former client?
A lawyer may not oppose a former client if:
1. The new client’s interests are materially adverse,
2. The matter is substantially related to the prior one,
3. Unless the former client gives informed written consent. [Rule 1.9(a)]
What does “substantially related” mean in conflict analysis?
A matter is “substantially related” if:
* It involves the same transaction or dispute, or
* There is a substantial risk that confidential information from the former representation would materially help the new client.
Example: Drafting a hospital consent form, then challenging that form in a lawsuit later, creates a substantial relation.
Can a lawyer represent someone against a former client in a new, unrelated matter?
Yes, if the matters are factually distinct and no confidential info from the former client is relevant to the new case.
Do conflict rules extend to clients of a lawyer’s former firm?
Yes, if:
1. The lawyer actually acquired confidential info at the former firm,
2. The new matter is the same or substantially related, and
3. Interests are materially adverse. [Rule 1.9(b)]
Example: If the lawyer worked on a case at the old firm and received confidential info, they can’t switch sides in that case.
Can a lawyer’s new firm be disqualified from a case?
Yes, unless:
1. The lawyer is screened from the case, 2. The lawyer receives no part of the fee, and 3. The former client is given written notice and certification of compliance. [Rule 1.10(a)(2)]
Example: A lawyer cannot work on the case or discuss it, and must be walled off completely from the matter.
Can a lawyer’s former firm be disqualified after a lawyer leaves?
Yes, if:
1. The matter is substantially related to the prior matter, and 2. A remaining lawyer at the firm has material confidential info. [Rule 1.10(b)]
Example: If three associates who worked on a case stay at the firm, the firm is still disqualified—even if the main lawyer leaves.
What duties apply to prospective clients?
A lawyer must:
* Keep info shared by a prospective client confidential, and
* Not later represent a party in a substantially related matter if the info could significantly harm the prospective client. [Rule 1.18(b)-(c)]
Example: A lawyer who consults with a potential client about a business dispute can’t later help their adversary.
How can prospective client conflicts be avoided?
Either:
1. Get informed written consent from both the affected and prospective clients; or
- Show that:
* Minimal confidential info was received, * The lawyer is screened from the matter, * The lawyer does not share the fee, * Written notice is given to the prospective client. [Rule 1.18(d)]
What counts as a “matter” in a government conflict?
A specific issue involving specific parties (e.g., case, contract, investigation).
General rulemaking is not a “matter”
Example: Drafting environmental rules is not a “matter,” but zoning a specific tract of land is.
What conflict rules apply to former government lawyers?
They must not:
1. Represent a private client in a matter they were personally and substantially involved in as a government lawyer, 2. Use confidential government info to harm someone. [Rule 1.11(a), (c)]
Example: A lawyer who investigated a company as a government attorney can’t represent that company in related private litigation.
What does “personally and substantially” mean for government work?
It means direct, significant participation, not just supervision or administrative approval.
Example: A District Attorney who only signs off on paperwork is not disqualified; one who prosecutes the case is.
Can a government lawyer’s conflict be imputed to their firm?
Yes, unless:
- The lawyer is timely screened,
- The lawyer does not share fees, and
- Written notice is given to the government agency. [Rule 1.11(b), (c)]
What if a lawyer goes from private to government service?
Ordinary conflict rules (Rules 1.7, 1.9) apply.
- If the lawyer personally and substantially worked on a matter in private practice, they must not handle that same matter in government unless all parties consent in writing. [Rule 1.11(d)]
Can government lawyers negotiate for private employment?
No, if they are working personally and substantially on a matter involving the potential employer. [Rule 1.11(d)(2)(ii)]
* Exception: Law clerks may do so if they notify their judge first.
What rules apply to judges or arbitrators entering private practice?
They may not represent anyone in a matter they were personally and substantially involved in as a judge or third-party neutral—unless all parties give informed written consent. [Rule 1.12(a)]
Example: A judge who ruled on a case can’t later represent a party in that case.
Can a judge’s new firm avoid disqualification?
Yes, if:
1. The judge is screened, 2. They don’t share fees from the case, 3. Written notice is given to all parties and the tribunal. [Rule 1.12(c)]
What if a law clerk negotiates employment with a party in a case?
- They must notify the judge before doing so. [Rule 1.12(b)]
Example: A law clerk drafting opinions must alert the judge before interviewing with a firm appearing in the case.
