Conflicts revisited Flashcards
is there an excpetion for personal conflicts?
yes see 1.10(a)
No imputation if the conflict is personal and no risk of material limitation if reped by other attorneys in the firm
are most 1.8 conflict imputed to the firm?
yea! (a) - (k) are imputed to all attys in the firm
what are they ways that 1.18(c) conflicts with former prospective clients are resolved (two ways)
- informed consent of both the prospective client and affect client OR
- the lawyer avoided exposure to disqualifying info AND the lawyer is timely screened, gets no part of the fee and written notice is givne to the prospective client
what would happen if we didn’t allow screening (four reasons)
Prevents attorneys from switching firms. Restraint on their practice.
- Clients unable to select lawyers or require them to waive lots of conflicts *
DQ by imputation used to get an unfair advantage in litigation
- For gov attorneys, imputation will disincentivize public service (see also Rule 1.11).
how do the model rules define screening? what rule?
what doees comment 9 say?
what does comment 10 say about the timing of the screen?
under 1.0(k)
isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.
comment 9 : Disqualified l and the ls working on the matter must know their duties, notice provided to other firms employees, denying acces to the files
Comment 10
Timing of the screen
lassale national bank
Marc Seidler used to work for Lake County before he joined a law firm. That law firm then sued Lake County for a bank. Seidler said he didn’t share any secret information with his new firm, but the firm didn’t have any special rules to stop him from doing so until six months later. Because of this, the court said the whole firm couldn’t be involved in the case.
issue: The question is whether a lawyer’s past connection can affect their whole law firm if there aren’t special rules to stop them from sharing information.
Screen was not in place at the start of the case
A PROMISE IS NOT ENOUGH
Attorney should have been screened the moment the law firm took the case; not when disqualification case went through
what does the restatment say about screening ? what about 1.10(a)(2)? how does compliance with each impact you in a case?
restatement – screening may not resolve an imputed conflict depending on how significant information from former client is to current client
1.10(a)(2) says you can consider additional factors when determining whether new firm can rep client
Compliance via the MR means you wont get disbarred, compliance with restatement ensure you won’t be disqualified
the restatement says that screening may not resolve an imputed conflict depending on how significant information from former client is to current client
what are the factors that determine significance?
Value of info? Info mostly public or still secret? Info still important? Scope of prior rep and attorney involvement in prior rep?
what does the MR say about a perfect screen? what about the restatement?
The model rules says perfect screen= youre good
Restatement says even a perfect screen may not be enough
under the restatment addionatl facotors, whats the result?
L worked extensively on the prior case and prior case is very similar to new case, but information gained from the rep is no longer secret/relevant to new case.
Screening can resolve conflict.
L worked extensively on the prior case and prior case is very similar to new case;info is still secret; info is highly relevant to many issues in the current case
Screening L won’t solve the conflict. New firm cannot take case.
kassis
Henry Kassis and North River Insurance Company hired a law firm, Weg and Myers, to represent them in a property damage lawsuit. Charles Arnold, a young lawyer at the firm, helped with the case. Later, Arnold moved to the law firm that was representing the other side in the lawsuit. His new firm tried to keep him away from the case to avoid a conflict of interest. However, the original law firm asked the court to disqualify Arnold’s new firm from the case.
aka movment of the atty during the case
The question is whether a lawyer’s conflict of interest can apply to their whole firm, even if the firm tries to keep the lawyer separate from the case.
was the screen gonna solve anytibg? what should they have done?
will they be punished?
Too tainted to screen
Example of when a perfect screen will not clear the conflict
Waited till the case was over to hire the attorney
They complied with model rules so wont be punished/subject to dispcplie, just disqualified
what is the south carolina rule on screening?
South Carolina does not have 1.10 (a)(2);
but it does allow screening for PC under
1.18(d)
