Current Clients part two: 1.7 and 1.8

Question 1

Direct adverse examples

Answer 1

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)

Question 2

Materially limited examples

Answer 2

The sanford case – materially limited by co-client rep and ultimately NON CONSENTABLE CONFLICTS

Question 3

When you have a co-client in litigation, there is a presumption of

Answer 3

conflict between them

Question 4

Directly adverse vs only economically adverse comment 6

Answer 4

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

Question 5

Positional conflicts

Answer 5

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

Question 6

Positional conflicts
See comment 24 to 1.7

Answer 6

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.

Question 7

Positional conflicts
Section 128 of the Restatement

Answer 7

it lists out the factors to consider

Question 8

what does informed consent for 1.7(b)(4) require

Answer 8

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

Question 9

ORAL CONSENT that is promptly memorialized and sent to the client
See comment 20

Answer 9

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

Question 10

1.7 comment 18 via informed consent

and also joint rep

Answer 10

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

Question 11

1.7 Comments 30 effects on acp and confidentiality

Answer 11

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

Question 12

1.7 Comments 31

effects on acp and confidentiality

Answer 12

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.

Question 13

1.7 comm 19

Answer 13

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.

Question 14

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

Answer 14

heck no

Question 15

why does the informed consent need to be in writing

Answer 15

The writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make

Question 16

can a client revoke their informed consent

Answer 16

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

Question 17

“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?

Answer 17

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

Question 18

Future Waivers

Answer 18

Providing informed consent in advance of the conflict

Question 19

The future waiver effectiveness depends on (see comment 22)

Answer 19

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)

Question 20

Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to

Answer 20

the test of 1.7(b)

Its determined by the extent to which the client reasonably understands the material risks the waiver entails

Question 21

what happens if the consent is general and open ended

Answer 21

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

Question 22

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

Answer 22

The conflict waiver was inadequate

1. at the time SM agreed to rep JM in the action the law firm also reped a client with conflicting interests
2. 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
3. SM’s uncontested to conflict of interest affected the whole of its engagement agreement with JM rendering it unenforceable in its entirety

Question 23

1.8 special issues in current client conflicts

Answer 23

Still talking about current clients
But just special conflicts

Question 24

1.8 and consent provsions

Answer 24

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)

Question 25

1.8(a): business transactions with clients

Answer 25

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

Question 26

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)

Answer 26

(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.

Question 27

what is not encompassed under the prohibition of 1.8(a): business transactions with clients

Answer 27

Standard commercial transactions
Regular fee agreements (comment one)

Question 28

1.8(b) info related to rep of client to their disadvantage

Answer 28

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.

Question 29

1.8(c) solicitation substantial gifts from clients

Answer 29

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.

Question 30

1.8 (D): LITERARY AND MEDIA RIGHTS

Answer 30

Attorney cant acquire media or literary rights to a portrayal based on the rep before the rep is over

Question 31

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.

Answer 31

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.

Question 32

1.8(e) financial assistance to client

Answer 32

You can’t provide financial assistance to a client in connection with pending or completed litigation

Question 33

1.8(e) financial assistance to client

exceptions

Answer 33

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

Question 34

rationale/downsides to 1.8(e) financial assistance to client

Answer 34

Dual role of attorney as lender and attorney
Creates bad incentives for clients ie bidding wars
But also creates an access to justice problem

Question 35

1.8(f) accepting compensation from someone other than the client

need three things to do this

Answer 35

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.

Question 36

1.8(g) requirements for accepting aggregate settlements (or pleas) for 2+ clients

Answer 36

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.

Question 37

1.8(h) requirements for prospectively limiting malpractice liability and for settling such claims.

Answer 37

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.

Question 38

1.8(i) propriety interests

Answer 38

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.

Question 39

1.8(j) sexual relationships with clients

Answer 39

Blanket ban, but allows for pre-existing, consensual relationship

Question 40

1.8(j) sexual relationships with clients

rationale> see comment 20

Answer 40

Fiduciary relationship
Power imbalance, exploitation
Impair judgment
Confidentiality problems

Question 41

1.8(k)

Answer 41

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