Conflicts of Interests with Current Clients Flashcards
Imputation
When a lawyer can’t take on a matter because of a conflict of interest, the other lawyers in the firm are also barred from taking on that matter. There are exceptions to this general rule.
Exceptions to imputed disqualification
- The conflict is uniquely personal to the disqualified lawyer and would not materially limit the representation of the client by the other lawyers in the firm
- The conflict is based on the disqualified lawyer’s prior work or employment, the lawyer is properly screened from the matter, and the affected persons are given notice
- An imputation can be waived by the affected client
When does a Conflict of Interest Exists?
A lawyer must not represent a client in either of the following situations:
- The client will be directly adverse to another client who is represented by the lawyer (whether in the same or a separate matter)
- There is a significant risk that the representation of the client will be materially limited by the lawyer’s own interest
How to Resolve a Current- Client Conflict
A lawyer can still undertake the representation if:
- They reasonably believes that they can competently and diligently represent the client despite the conflict (“reasonably prudent and competent lawyer” standard)
- The representation is not prohibited by law
- The lawyer is on both sides of the same litigation (always non-consentable)
- Each affected client gives informed consent, confirmed in writing
When is consent “informed”
The affected client must be aware of all of the relevant circumstances, reasonable alternatives, and foreseeable ways the conflict might harm them.
CA Distinction: “Informed written consent” meaning that both the disclosure to the client and the consent from the client must be in writing.
NOTE: This can be limited by duties to other clients if it prevents the lawyer from fully disclosing a conflict to the present client.
What are Direct Adversity Conflicts
There is a direct adversity conflict even if the lawyer represents the clients in totally unrelated matters.
NOTE: Economic adversity does not amount to direct adversity. A lawyer or firm can simultaneously represent 2 clients who are competitors.
CA: A lawyer who is retained by an insurance company to represent an insured also represents the insurance company for conflicts purposes. BUT no CoI when the insurer is only acting as an indemnity provider in another action.
Example: InsCo retains you to represent Driver 1 in tort case. May you now represent Driver 2 in a different case against Driver 3 and InsCo, Driver 3’s insurer? YES because InsCo is only acting as an indemnity provider.
Material Limitation Conflicts
Relevant in any situation where the lawyer’s ability to represent a client could be affected.
Where a lawyer is representing multiple parties on the same side of a matter and the parties have potentially conflicting interests
Examples:
- Spouses in preparing wills and trusts
- Former client conflict that could affect their representation of the current clients
CA Requirement for disclosing certain relationships even when there is no significant risk of material limitation
The following relationships always require written disclosure to the client even when a “significant risk” of material limitation is not present:
- The lawyer (or another lawyer in their firm) has a legal, business, financial, professional, or personal relationship with a party or witness in the client’s matter
- The lawyer (or another lawyer in their firm) has any of these relationships with another party’s attorney in the client’s matter:
- Immediate family member of another party’s attorney in the client’s matter
lives with, or is in an intimate personal relationship with, or is a client of the firm of, another party’s attorney in the client’s matter
If the relationship does create a significant risk of material limita- tion, the usual informed written consent from the client is required.
