Conflicts of Interest Questions I - Barbri Flashcards
William wants Lena to represent him in the sale of his home to Peter. Lena represents Peter in an unrelated matter. Lena reasonably believes that she can competently and diligently represent them both in their respective matters.
What must Lena do before undertaking the representation of William? (B)
Get informed consent, confirmed in writing, from both William and Peter.
Direct adversity exists when a lawyer represents one client in a matter adverse to another current client, even where the lawyer represents the clients in unrelated matters. This is true in both litigation and transactional matters. Thus, Lena must address the conflict by obtaining informed consent, confirmed in writing, from both Peter and William.
A lender and a borrower want Ashley to represent them in a loan transaction and have already agreed on the major terms. Ashley reasonably believes that she can competently and diligently represent them both. She obtains each client’s informed consent on the telephone, and then promptly sends a confirmatory e-mail. She then proceeds with the representation.
Is Ashley subject to discipline? (B)
No, because she properly handled the conflict.
A conflict exists because Ashley will be representing two directly adverse clients in the same matter. A lawyer must never be on opposite sides of the same litigation (or other proceeding pending before a tribunal), but this is a transactional matter, so (B) is wrong. If there is a conflict between current clients, a lawyer may undertake the representation if she reasonably believes that she can competently and diligently represent each affected client despite the conflict, and each client gives informed consent, confirmed in writing. The clients’ signatures are not required. Therefore, (C) is correct and (A) is wrong.
Even with client consent, a lawyer litigating a matter for a client must not assert a claim against another client whom the lawyer represents: (B)
In the same litigation.
Even with client consent, a lawyer must not assert a claim on behalf of one client against another client represented by that lawyer in the same litigation (or other proceeding before a tribunal). In contrast, if the lawyer represents the second client in unrelated matters only, the conflict may be waivable.
Caitlin and Rico are partners in a law firm. A plaintiff hires Caitlin to file a lawsuit against his neighbor. When the neighbor receives the complaint, she calls Rico and asks him to represent her in the lawsuit. Caitlin and Rico both believe they can competently and diligently represent their clients despite the conflict. They notify the clients of the situation and obtain their informed consent, confirmed in writing.
Can Caitlin and Rico proceed with representing their clients in the lawsuit? (B)
No.
Either Caitlin or Rico has to get out of the case. Even with client consent, a lawyer must not represent a client if it would involve asserting a claim against another client represented by that lawyer in the same litigation (or other proceeding before a tribunal). In other words, the lawyer can’t be on both sides of the same proceeding. Lawyers within a firm are treated as a single unit for conflicts purposes. Therefore, Caitlin and Rico can’t be on opposite sides of the same litigation.
Taylor and Scott are partners in different offices of the same firm. Taylor represents Books-R-Us in real estate matters. Knowing this, Scott accepts a representation of The Book-Bin, a direct competitor of Books-R-Us, in a copyright matter. None of Taylor’s matters for Books-R-Us involve The Book-Bin, and Scott’s matter for The Book-Bin does not involve Books-R-Us. Neither Scott nor Taylor obtain informed consent from their client.
Are Scott and Taylor likely subject to discipline? (B)
No, because the clients not legally adverse.
The two clients are head-to-head adversaries in an economic sense, but their interests are not adverse in any legal sense—Taylor is not representing Books-R-Us against The Book-Bin, and Scott is not representing The Book-Bin against Books-R-Us. If Taylor and Scott can disclose the situation to their respective clients without revealing confidential information, they may do so for the sake of client goodwill, but they wouldn’t be subject to discipline for failing to do so. Therefore, (B) is correct and (C) is wrong. (A) is wrong. If a lawyer does have a conflict, it is generally imputed to everyone in the firm, even to lawyers in different offices.
Maria is working on a class action lawsuit against a pharmaceutical company.
Which members of the class could Maria sue on behalf of another client in an unrelated matter without obtaining any type of consent? (B)
Unnamed class members only.
In class action litigation, the unnamed members of a class ordinarily are not regarded as clients for purposes of the “direct adversity” conflicts rule. Therefore, Maria can sue an unnamed class member in an unrelated matter without obtaining their consent.
Lyle represents Rebecca and BigCorp in separate lawsuits. Rebecca wants Lyle to take a certain position on a legal issue in her case, and BigCorp wants Lyle to take the opposite position in their case.
Which statement is most accurate regarding whether there is a conflict of interest? (B)
A) Taking inconsistent legal positions in separate cases always poses a conflict that must be addressed by getting informed consent, confirmed in writing, from each client
B) Taking inconsistent legal positions in separate cases poses a conflict in certain circumstances, such as when a decision favoring one client will create a precedent that will seriously weaken the other client’s position - correct
C) A lawyer must never take inconsistent legal positions in separate cases, even if the clients consent
Generally, a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients, and that on its own doesn’t create a conflict of interest. However, a conflict exists if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s representation of another client in a different case: for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.
The requirements for business transactions with clients (e.g., must be fair and reasonable to client; must obtain informed consent in a signed writing) have to be met in all of the following situations, EXCEPT: (B)
A A lawyer accepts non-monetary property as a legal feeA lawyer accepts non-monetary property as a legal fee - no response given
B A lawyer who owns a separate title insurance business sells title insurance to the clientA lawyer who owns a separate title insurance business sells title insurance to the client - no response given
C A lawyer who represents a bank takes out a standard home loan from that bankA lawyer who represents a bank takes out a standard home loan from that bank - correct
D A lawyer buys a client’s boatA lawyer buys a client’s boat - no response given
E A lawyer leases their second home to a client
