Current Clients part two: 1.7 and 1.8 Flashcards
Direct adverse examples
Suing your client in a different unrelated matter
Repping your client’s opponent in a different unrelated matter
Cross examining a client (when the testimony could harm other client)
Materially limited examples
The sanford case – materially limited by co-client rep and ultimately NON CONSENTABLE CONFLICTS
When you have a co-client in litigation, there is a presumption of
conflict between them
Directly adverse vs only economically adverse comment 6
simultaneous representation in unrelated matters of clients whose interests are only ECONOMICALLY ADVERSE, such as rep of competing economic enterprises in unrelated litigation DOES NOT ORDINARILY constitute a conflict of interest and thus may not require consent of the respective clients
Positional conflicts
arguing a position on behalf of one client that is adverse to a position that the lawyer, or her firm, is arguing on behalf of another current
Positional conflicts
See comment 24 to 1.7
The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest.
A conflict of interests EXISTS, however, if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case.
Positional conflicts
Section 128 of the Restatement
it lists out the factors to consider
what does informed consent for 1.7(b)(4) require
Any informed consent must be in writing
This could be a tangible/electronic record, signed by the client OR
ORAL CONSENT that is promptly memorialized and sent to the client
ORAL CONSENT that is promptly memorialized and sent to the client
See comment 20
Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent
1.7 comment 18 via informed consent
and also joint rep
C must be aware of the relevant circumstances and of the material and reasonably foreseeable potential adverse effects
For joint rep, must include the possible effects on loyalty, confidentiality and the acp and the advantages and risks involved
1.7 Comments 30 effects on acp and confidentiality
30
With regard to the acp, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation evenatures between the clients, the privilege will not protect any such communications, and the clients should be so advised
1.7 Comments 31
effects on acp and confidentiality
As to the duty of confidentiality, continued common rep will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common rep
Each client has the right to be informed of anything bearing on on the rep that might affect that clients interests
Advise each client that info will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the rep should be kept from the other.
1.7 comm 19
1.6 might prevent ability to obtain informed consent
Ex: conflict between client one and potential client 2. Need to disclose 1.6 info about client one to provide potential client 2 with informed consent. If client one does not consent to disclosure, cannot rep client.
does The requirement of writing supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages of rep
heck no
why does the informed consent need to be in writing
The writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make
can a client revoke their informed consent
A client who given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer’s representation at any time
“I [d’s name’], hereby declare that, notwithstanding the existence of any possible conflicts of interest, I knowingly and voluntarily consent to the continued representation by [counsel for the VCUPD d] in this matter. This informed consent is made after consultation with my attorney”
this was the consent form in the sanford case
would this be suffienct informed consent under the model rules?
There just isn’t enough info in the lang for it to be INFORMED consent
Ie no facts that might give rise to conflict, or give alternatives to rep
Future Waivers
Providing informed consent in advance of the conflict
The future waiver effectiveness depends on (see comment 22)
Comprehensiveness of explanation of future material risk, adverse consequences
experience/sophistication of client and whether they have independent counsel
Breadth of waiver (only unrelated matters ect)
Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to
the test of 1.7(b)
Its determined by the extent to which the client reasonably understands the material risks the waiver entails
what happens if the consent is general and open ended
then the consent will ordinarily be ineffective
If the client is an experienced user of the legal services involved and is reasonably informed regarding the risk, such consent is more likely to be effective
Sheppard Mullin
Sheppard, Mullin, Richter & Hampton, LLP (Sheppard) represented J-M Manufacturing Company (J-M) in a lawsuit about pipe quality while also representing South Tahoe Utility District (South Tahoe) in unrelated matters.
Sheppard did not disclose this conflict to either party.
After South Tahoe discovered the conflict, Sheppard was disqualified and sued J-M for unpaid fees.
However, there was a conflict waiver
“by consenting to this arrangement, J-M is waiving our obligation of loyalty to it so long as we maintain confidentiality and adhere to the foregoing limitations”
Whether the waiver constituted effective consent to SM’s concurrent rep of adverse interests
The conflict waiver was inadequate
- at the time SM agreed to rep JM in the action the law firm also reped a client with conflicting interests
- because SM knew of that conflicting interest and failed to tell JM of it, JM’s consent was not informed within the meaning to the rules
- SM’s uncontested to conflict of interest affected the whole of its engagement agreement with JM rendering it unenforceable in its entirety
1.8 special issues in current client conflicts
Still talking about current clients
But just special conflicts
1.8 and consent provsions
Pay attention to consent provisions
Some require consent to be in writing and signed by the client
Ie 1.8(a)(3)
Some are the same as rule 1.7
1.8(f)(1)
Some are non consentable
1.8(j)
1.8(a): business transactions with clients
A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless (a)(1)-(3) are all met
1.8(a): business transactions with clients
There are some exceptions to the rule; but you need to meet three things via 1.8(a)(1)-(3)
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing
(2) client is advised to seek independent legal counsel
; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.
what is not encompassed under the prohibition of 1.8(a): business transactions with clients
Standard commercial transactions
Regular fee agreements (comment one)
1.8(b) info related to rep of client to their disadvantage
A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
1.8(c) solicitation substantial gifts from clients
A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client.
1.8 (D): LITERARY AND MEDIA RIGHTS
Attorney cant acquire media or literary rights to a portrayal based on the rep before the rep is over
Beets –1.8 (D): LITERARY AND MEDIA RIGHTS
Betty Lou Beets was charged with capital murder after her fifth husband, Jimmy Don Beets, was found buried in her yard.
Her lawyer, E. Ray Andrews, agreed to represent her in exchange for all literary and media rights to her case.
A contract granting trial counsel media rights to a client’s case as payment of fees violates the ethical rules and creates a serious potential conflict of interest.
1.8(e) financial assistance to client
You can’t provide financial assistance to a client in connection with pending or completed litigation
1.8(e) financial assistance to client
exceptions
Advancement of court costs and expenses of litigation
Repping an indigent client you can pay court costs and expenses
Pro bono can provide modest gifts to the client for food, rent transportation, medicine and other basic living expenses, however in relation to this exception :
Cant promise that the availability of the gifts before retention or as inducement to continue
Cant seek or accept reimbursement from teh client, a relative of the client or anyone affiliated with the client and
Cant advertise a willingness to provide gifts to prospective clients
rationale/downsides to 1.8(e) financial assistance to client
Dual role of attorney as lender and attorney
Creates bad incentives for clients ie bidding wars
But also creates an access to justice problem
1.8(f) accepting compensation from someone other than the client
need three things to do this
A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
1.8(g) requirements for accepting aggregate settlements (or pleas) for 2+ clients
A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client.
1.8(h) requirements for prospectively limiting malpractice liability and for settling such claims.
A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
1.8(i) propriety interests
A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
1.8(j) sexual relationships with clients
Blanket ban, but allows for pre-existing, consensual relationship
1.8(j) sexual relationships with clients
rationale> see comment 20
Fiduciary relationship
Power imbalance, exploitation
Impair judgment
Confidentiality problems
1.8(k)
imputation to whole firm rule
While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them
