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CA Professional Responsibility > Conflicts of Interests > Flashcards

Conflicts of Interests Flashcards

1
Q

Conflicts of Interest: When can it arise?

A

A conflict of interest may arise between

1) the lawyer and the client
2) current clients
3) current and prospective clients
4) current and former clients, or
5) between current clients and third parties.

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2
Q

COI: Attorney Client Conflict

[ABA] [CALIFORNIA]

A

An attorney may not represent a client if the lawyer has any personal interest that could result in a significant risk that the representation of the client will be materially limited.

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3
Q

When can an attorney still represent a client if a COI arises from the attorney’s personal interest?

[ABA] [CALIFORNIA]

A

(i) the lawyer reasonably believes that she will be able to provide competent and diligent representation to each affected client;

(ii) the representation is not prohibited by law;

(iii) 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

(iv) each affected client gives informed consent, confirmed in writing [ABA] OR informed written consent [CALIFORNIA]

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4
Q

Attorney COI: Conflict with Opposing Counsel

[ABA] [CALIFORNIA]

A

ABA: Conflict arises when opposing counsel is a parent, child, sibling, or spouse. Requires client’s informed consent.

CALIFORNIA: Includes the above, as well as anyone who lives with lawyer, is client of lawyer, or has intimate personal relationship. Requires written disclosure. Even if no substantial risk!

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5
Q

Attorney COI: Conflict with Opposing Party/Witness

[CALIFORNIA]

A

Occurs when lawyer (or lawyer in their firm) has a legal, business, personal, financial or professional relationship to an opposing party. Even if no substantial risk!

EXCEPTION:

1) L reasonably believes can provide competent/diligent representation

2) Provides C written disclosure

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6
Q

Attorney COI: Sexual Relations with Client

[ABA][CALIFORNIA]

A

An attorney is prohibited from starting a sexual relationship with a client.

EXCEPTION:

1) Relationship was ongoing, consensual, and predates the representation

2) [CA only]: Does not apply to L’s spouse or domestic partner.

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7
Q

Attorney COI: Lawyer as Client’s Witness

[ABA][CALIFORNIA]

A

An attorney may not act as a necessary witness to a client’s case.

EXCEPTIONS:

1) Relates to an uncontested issue

2) Relates to nature/value of services performed

3) [ABA only] Disqualification would result in substantial hardship to client

4) [CA only] Clients gives informed written consent

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8
Q

Attorney COI: Lawyer’s Proprietary Interest

A

May not acquire a proprietary interest in any action involving clients case.

EXCEPTION:

1) Based on a valid contingency fee

2) Acquires a lien to secure payment from client

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9
Q

Attorney COI: Financial Assistance to Client

[ABA]

A

ABA: May not give financial assistance to client if it was made in connection with ongoing representation.

EXCEPTION:

1) May advance court costs and litigation fees that client is still liable to pay for

2) May help indigent client with modest and necessary living expenses

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10
Q

Attorney COI: Financial Assistance to Client

[CALIFORNIA]

A

Can never provide any sort of financial, personal, or business expense to a client.

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11
Q

Attorney COI: Business Transactions with Client

A

May not knowingly enter into a business transaction with a Client OR obtain an adverse ownership/financial interest to the Client.

EXCEPTIONS:

1) Agreement in writing

2) Terms are fair and reasonable

3) Advised in writing and given reasonable opportunity to seek outside counsel

4) Client provides informed written consent

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12
Q

Is there an Attorney COI when an attorney and a client conduct a standard/public business transaction?

A

No.

EX: If a client is a shop owner, a COI is not formed if the lawyer buys from the client’s shop.

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13
Q

Attorney COI: Literary or Media Rights

[ABA][CALIFORNIA]

A

ABA: An attorney is not permitted to obtain or negotiate a client’s literary/media rights in regards to their representation.

CA: Conduct under the Business Transaction COI analysis.

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14
Q

Attorney COI: Lawyer as Beneficiary of Will

[ABA][CALIFORNIA]

A

Generally, a lawyer may not solicit gifts or draft a testamentary instrument that gives a substantial gift to the lawyer or any relatives.

EXCEPTIONS:

1) Client is related by blood/affinity to Lawyer

2) [CA only]: Client is advised by independent counsel

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15
Q

Attorney COI: Malpractice Waiver

[ABA][CALIFORNIA]

A

ABA: May not make an agreement with a client to limit malpractice recovery UNLESS client is represented by independent counsel.

CA: Can never waive malpractice!

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16
Q

Under California, does a relationship with the opposing counsel or opposing party/witness need to constitute a significant risk of material limitation?

A

No.

17
Q

COI: Concurrent Clients

[ABA] [CALIFORNIA]

A

A lawyer must not represent a client if doing so would be:

1) directly adverse to the interests of another current client or
2) if there is a significant risk that the representation of the client will be materially limited by the lawyer’s responsibilities to the current client

18
Q

When can an attorney still represent concurrent clients when a COI is present?

[ABA] [CALIFORNIA]

A

(i) the lawyer reasonably believes that she will be able to provide competent and diligent representation to each affected client;

(ii) the representation is not prohibited by law;

(iii) 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

(iv) each affected client gives informed consent, confirmed in writing [ABA] OR informed written consent [CALIFORNIA]

19
Q

ESSAY TIP: When both clients are criminal defendants in the same case, what are ways a concurrent COI could form?

A

1) One of the clients may be offered a plea deal by the prosecution and, in exchange for a lighter sentence, be required to provide information about, or testify against, the other client,

2) Cases may require different tactical strategies that may not be conducive to each client’s defense (i.e. claiming one client was under the duress of the other)

20
Q

COI: Current and Former Clients

[ABA] [CALIFORNIA]

A

A lawyer who has previously represented a client in a matter must not subsequently 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

21
Q

When can an attorney still represent a current client when a COI with a former client is present?

[ABA] [CALIFORNIA]

A

Former client gives informed consent, confirmed in writing [ABA] OR informed written consent [CALIFORNIA]

NO NEED FOR CURRENT CLIENT CONSENT

22
Q

COI: Current and Prospective Clients

[ABA][CALIFORNIA]

A

ABA: Prohibited if L acquires information that is significantly harmful to the prospective client.

CA: Prohibited if L acquired materially confidential information from prospective client.

23
Q

When may an attorney carry out a representation despite a current/prospective client COI?

A

Either ABA consent or CA consent.

24
Q

COI: Imputation

A

Certain COIs will be “imputed” onto a lawyer’s firm, which could result in the entire firm being required to withdrawal from representation.

25
Q

What COIs will generally not lead to imputation?

A

Generally, personal attorney conflicts will not be imputed onto the attorney’s firm.

26
Q

Can conflicts arise when a lawyer switches firms?

A

Yes; a lawyer may not represent their new firm’s client in the same or substantially related matter if:

1) New clients interest is materially adverse to former client’s AND

2) Lawyer acquired material and confidential information on former client.

27
Q

Can an attorney still represent a client if there is a conflict re: switching firms

A

Yes, if:

1) Consent under ABA or California

2) If no consent, apply screening procedures!

28
Q

Screening Procedures

[ABA]

A

Any COI that arises from a lawyer’s old firm will not be imputed to the new firm if:

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee,

(ii) written notice is given to any affected former client to enable the former client to ascertain compliance with ethical rules, and

(iii) certification of compliance with ethical rules and with screening procedures is 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.

29
Q

Screening Procedures

[CALIFORNIA]

A

Any COI that arises from a lawyer’s old firm will not be imputed to the new firm if:

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee, and

(ii) written notice is given to any affected former client to enable the former client to ascertain compliance with the ethics rules.

(iii) the prohibited lawyer did not substantially participate in the same or a substantially related matter

[Harder to do in California because if (iii)!]

30
Q

COI: Former Government Attorney

[ABA][CALIFORNIA]

A

A former government attorney may not represent a client in a government matter that the attorney personally and substantially participated in.

EXCEPTION:

1) Former government agency gives ABA or CA consent.

31
Q

Does a former government attorney COI still exist when the client’s interest is not directly adverse to the government?

A

Yes.

32
Q

COI: Payment from a Third Party

A

A lawyer may not accept payment for representation from someone other than the client, unless:

(i) the client gives informed consent;

(ii) there is no interference with the lawyer’s professional judgment; and

(iii) lawyer-client confidentiality is preserved.

33
Q

COI: Forming a Law Firm/Partnership

A

Under the ABA, a law firm/partnership may be formed by one or multiple lawyers who work together as a legal service organization to practice law.

CA has no adjacent rule. Whether two or more practitioners formally constitute as a law firm depends on specific facts.

For example, if two lawyers who practice different fields of law simply share an office space and occasionally assist one another, this does not rise to the level of a partnership.

However, if the same lawyers promote themselves as a firm or promote their work together, then this could rise to the level of a partnership.

34
Q

ESSAY TIP

Why is it relevant to determine whether a law firm or partnership exists?

A

A partnership means that each practitioner runs the risk of being imputed following conflicts of interests, and have to take reasonable efforts to ensure the entire firm acts in accordance with ethical rules.

CA Professional Responsibility (10 decks)

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