Duty of Loyalty Flashcards
Duty of Loyalty =
Conflicts of Interest
Approach on essays:
Flag and approach ACTUAL and POTENTIAL conflicts
(This is because CA requires consent for potential conflicts AND additional disclosure if it develops into actual conflict
Ignorance of Conflicts:
No excuse unless it is due to short representation (promotes pro bono work)
What’s it called when you can’t work because of co-workers conflict?
Imputed Disqualification
Imputed Disqualification exceptions:
If you can build an “ethical wall” there is no imputed disqualification
CA: Does not impute only personal conflicts to colleagues, only disqualifies that attorney but no discipline
Remedies:
Refuse to take case, withdraw, advise clients to get separate counsel
When are conflicts Maybe Okay, what is the analysis?
1) You reasonably believe you can represent EVERYONE EFFECTIVELY (CA does not require it be objectively reasonable)
2) You INFORM each client (If you can’t INFORM because of CONFIDENCES, test fails)
3) Client gives written consent (CA: Only personal conflicts requires only written consent)
Opposing Current Client in another matter:
If it is a different matter (like labor claim and you rep the other guy in a tax claim) just requires ALL PARTY CONSENT
CA: No conflict of client has insurance, insurance is only acting as indemnity
2 clients with inconsistent positions (argue for some statute, then another client hires you to argue against it later)
This is okay, two positions two clients is fine. If either client would be disadvantaged must obtain consent
Repping multiple clients in same matter (like a corporation and their execs)
Lots of potential conflict, requires disclosure and consent
Remedy for potential conflict developing into actual conflict
Withdraw from BOTH clients rep (because you have confidential info from both clients now)
New client in related case of old client
If there might be ANY crossover in information, must get consent because it could violate your duty of confidentiality and loyalty to other client.
CANNOT USE ANY NON-PUBLIC CONFIDENTIAL INFO AGAINST FORMER CLIENT
Former GOV. employee now in private
Can’t work on anything you had a ‘personal and substantial’ part in unless you get gov’ts consent.
Imputed Disqualification Elements for it to be okay:
1) Screened off from associates
2) do not share in any fees in the matter
3) Your former gov. employer is INFORMED (not consent)
What if you were a clerk of court
consent from ALL PARTIES.
prosecutors working for defense later
CA only explicitly disallows. Silent on civil cases but screening is fine.
Conflict b/w lawyer and client:
No Gifts from client can be solicited.
NO DRAFTING WILLS IF YOU (or close relative) ARE BENEFICIARY UNLESS YOU ARE BLOOD RELATED
Limiting liability of the attorney:
can’t limit his liability from professional misconduct report
Can’t limit malpractice liability UNLESS (ABA) they have independent counsel to sign the waiver. (CA DOES NOT ALLOW)
Settling malpractice claim
must have independent counsel read the settlement
Selling rights to a client’s story
ABA: Not until matter ends
CA: discourages, but fine if Judge is okay with it and client knows and consents
Loans to client
ABA forbids ALL financial assistance unless it’s a contingency basis OR an indigent client
Entering into business deals with client
"First Discuss Over Coffee" Deal is F-air to the client D-isclosed in understandable writing O-utside lawyer is ADVISED to consult C-onsent from client in writing
Serving on a company Board
Non-Profit legal service org. is fine.
Corporate CLIENT discouraged b/c often problems with duty of LOYALTY and CONFIDENTIALITY (Reason why is because you often will have a fiduciary duty to company)
Counsel as witness:
Cannot be witness in your trial UNLESS:
1)uncontested testimony; or
2) it’s about legal services rendered OR
3) your distinctive value to the case means withdrawal would impose substantial hardship on client.
CA: May testify in any bench trial, or civil trial if client consents
