Conflicts with Former Clients / Conflicts and Government Employees / Imputation / Conflicts and Corporations

Question 1

Rule 1.9(a) – Conflicts with Former Clients

Answer 1

• A lawyer who has formerly represented a client in a matter
• shall not thereafter represent another person in the same or substantially related matter
• in which that person’s interests are materially adverse to the interests of the former client
• unless the former client gives informed consent, confirmed in writing

Question 2

Rule 1.9(a) Analysis:

Answer 2

• Step One: Is the matter against (materially adverse to) a former client? [If yes, to go Step Two. If no, there is no conflict.]
• Step Two: Is it the same matter as the former client’s matter or a substantially related matter? [If yes, go to Step Three. If no, there is no conflict.]
• Step Three: In order to proceed with the representation, the former client’s informed consent, confirmed in writing, is needed.

Question 3

Substantial Relations Test

Answer 3

• Is there a reasonable probability that confidences were disclosed which could be used against the former client? (Are there facts gained in the prior matter that could be used against the former client in the current matter)?
• If so, the matters are similar enough that a substantial relationship is presumed.
• The test is met if the facts of the two matters are similar whether or not the lawyer received confidential information from the former client.

Question 4

Rule 1.9(b) – Application of the Rule to Law

Answer 4

• This rule addresses the situation of lawyers who depart a law firm
• A lawyer who leaves a firm may not represent someon against a client of the former firm in the “same or substantially related matter” absent the former client’s informed consent, confirmed in writing.
• NOTE: The rule applies only where actual knowledge of protected information is demonstrated.

Question 5

Rule 1.9(c) – Prohibition Against Use / Revelation of Former Client Information

Answer 5

• A lawyer who has formerly represented a client in a matter shall not thereafter:
  
  1. use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known; or,
  2. reveal information relating to the representation except as these rules would permit or require with respect to a client.

Question 6

Rule 1.10(a) – The General Rule

Answer 6

• While associated in a firm no member of the firm shall knowingly represent a client when any one member practicing alone would be prohibited from doing so under 1.7 or 1.9.
• Unless:
  
  1. the prohibition is based on a personal interest and it doesn’t present a significant risk of materially limiting the representation of the client by someone else in the firm; or
  2. the conflict arises from the lawyer’s association with a prior firm. In this case, the new firm can still represent the client as long as the disqualified lawyer is:
     
     1. timely screened;
     2. takes no part of the fee; and
     3. written notice is promptly given to any affected former client to ascertain compliance with the screen which shall include:
        
        • a description of the screening procedures employed;
        • a statement that review before a tribunal is available; and,
        • certification of screen compliance is given upon request.

Question 7

Definition of “Firm”:

Answer 7

• Law partnership, professional corporation, sole proprietorship or other association authorized to practice law
• including legal services organizations and legal departments of corporations and other organizations

Question 8

Rule 1.10(b) – Imputation with Respect to the Departing Lawyer

Answer 8

• Prevents a former firm from taking cases against clients that left with a departing lawyer if:
  
  1. It is the same or substantially related matter; and,
  2. The firm has confidences of the former client that are material to the matter.

Question 9

Rule 1.10(c) – Waiver

Answer 9

• A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7
• E.G. A waiver is permissible as long as the conflict is not so direct and intense that the representation is per se impermissible.

Question 10

Rule 1.10(d) – Government Lawyers

Answer 10

• This rule sets forth that
• the disqualification of lawyers associated in a firm with former or current government lawyers
• is governed by the “screening” provisions in Rule 1.11

Question 11

Rule 1.11 – Special Conflict Provisions for Government Lawyers

Answer 11

• Rule 1.11(a) – a former government attorney is subject to Rule 1.9(c) (can not use/reveal former client info) and can not, in private practice,
• represent a client in a matter in which the lawyer participated personally and substantially unless the government agency consents in writing.

Question 12

Rule 1.11(b) – Imputation

Answer 12

• Allows a former government attorney to be “screened off” (no access, no communication, no sharing in the fee)
• to avoid the lawyer’s new firm from being disqualified from cases involving the former government lawyer’s former employer.
• In the case of a “screen,” written notice must be immediately given to the appropriate government agency to enable it to ascertain compliance with this Rule.

Question 13

Rule 1.11(c) – Use of Government Information

Answer 13

• Except as law may otherwise expressly permit, a lawyer in knowing possession of confidential government information about a person,
• gained when the lawyer was a government / public officer or employee,
• may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.

Question 14

Rule 1.11(d) – Application of Rules 1.7 and 1.9 to Government Lawyers

Answer 14

• Government lawyers are subject to Rules 1.7 and 1.9; and,
• shall not participate in a matter in which the lawyer participated personally and substantially while in private practice or non-government employment,
• unless the appropriate government agency gives informed consent, confirmed in writing.
• Nor shall a lawyer, handling a case for the government, negotiate for employment with a party or a party’s counsel while the case is pending.
• Exception: A lawyer serving as a law clerk to a judge or other adjudicative officer or arbitrator, may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions of that rule.

*Must be with the court’s knowledge and approval.

Question 15

Rule 1.11(e) – Definition of “Matter”

Answer 15

• As used in this Rule, “matter” includes
• any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties
• and any other matter covered by the COI rules of the appropriate government agency

Question 16

Rule 1.12(a)

Answer 16

• Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter
• in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such person or as an arbitrator, mediator or other third party neutral,
• unless all parties give informed consent, confirmed in writing.
• E.G., Lawyer that sat as a juror (adjudicator) can not thereafter serve as counsel for one of the parties on appeal absent consent.

Question 17

Rule 1.12(b)

Answer 17

• A judge (or adjudicative officer, arbitrator, mediator or 3^rd party neutral)
• shall not negotiate for employment with any person who is involved as a party or as a lawyer for a party
• in a matter in which the judge is presiding over.
• A law clerk may negotiate for employment with a party or lawyer for a party in a matter in which the clerk is participating in but only after notifying the judge or other adjudicative officer

Question 18

Rule 1.12(c) – Imputation

Answer 18

• If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter, unless:
  
  1. The disqualified lawyer is timely screened from any part in the matter and receives no part of the fee there from; and
  2. Written notice is promptly given to the parties and the appropriate tribunal to enable them to ascertain compliance with this rule

Question 19

Rule 1.12(d)

Answer 19

• An arbitrator selected as a partisan of a party in a multi-member arbitration panel
• is not prohibited from subsequently representing that party.

Question 20

Rule 1.13 – Organizations as Clients

Rule 1.13(a):

Answer 20

• A lawyer employed or retained by an organization
• represents the organization
• acting through its duly authorized constituents

Question 21

Rule 1.13(b) – The General Premise:

Answer 21

• If a lawyer for an organization knows that an officer, employee or other person associated with the organization
• is engaged in action, intends to act, or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization
• and is likely to result in substantial injury to the organization,
• the lawyer shall proceed as is reasonably necessary in the best interest of the organization

Question 22

Rule 1.13(b) – Exhaustion of Internal Remedies Scheme:

Answer 22

• In a 1.13(a) situation, a lawyer shall take remedial measures including, if necessary:
  
  1. Asking for reconsideration of the matter (remonstrate with the offender);
  2. Advising that a separate legal opinion be obtained; and,
  3. Referring the matter to a higher authority in the organization including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.
• Any measures taken must be designed to minimize disruption in the organization and the risk of revealing confidential information to person outside the organization

Question 23

Rule 1.13(c) – Last Resort:

Answer 23

• If, despite the lawyer’s efforts in accordance with paragraph (b),
• the highest authority that can act insists upon an action or a refusal to act, that is clearly a violation and the lawyer is reasonably certain the conduct will result in substantial injury to the organization,
• the lawyer may reveal information related to the representation whether or not protected by Rule 1.6 but only to the extent necessary to prevent the substantial harm / injury

Question 24

Rule 1.13(d) – Exception to Paragraph (c):

Answer 24

• Paragraph (c) does not apply with respect to information relating to a lawyer’s representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.
• Policy Reason for Exception: To enable organization clients to enjoy the full benefits of legal counsel in conducting an investigation or defending against a claim

Question 25

Rule 1.13(e):

Answer 25

• A lawyer who reasonably believes he’s been discharged because of the lawyer’s actions under paragraphs (b) and (c),
• or who withdraws under circumstances that require or permit such withdrawal under (b) or (c),
• shall proceed as the lawyer reasonably believes necessary to assure that the organization’s highest authority is informed of the lawyer’s discharge or withdrawal.

Question 26

Rule 1.13(f)

Answer 26

• In dealing with an organization’s directors, officers, employees, members, shareholders, or other constituents,
• a lawyer shall explain the identify of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.
• Rationale: A problem arises when constituents are of the impression that you are representing them as individuals in addition to the business enterprise.
• E.G. The case of closely-held (such as family owned) corporations

Question 27

Rule 1.13(g)

Answer 27

• A lawyer representing an organization may also repreent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of Rule 1.7
• If the organization’s consent to the dual representation is required by Rule 1.7,
• the consent shall be given by an appropriate official of the organization
• other than the individual who is to be represented or it may be given by the shareholders