Duty of Loyalty

Question 1

Duty of Loyalty =

Answer 1

Conflicts of Interest

Question 2

Approach on essays:

Answer 2

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

Question 3

Ignorance of Conflicts:

Answer 3

No excuse unless it is due to short representation (promotes pro bono work)

Question 4

What’s it called when you can’t work because of co-workers conflict?

Answer 4

Imputed Disqualification

Question 5

Imputed Disqualification exceptions:

Answer 5

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

Question 6

Remedies:

Answer 6

Refuse to take case, withdraw, advise clients to get separate counsel

Question 7

When are conflicts Maybe Okay, what is the analysis?

Answer 7

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)

Question 8

Opposing Current Client in another matter:

Answer 8

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

Question 9

2 clients with inconsistent positions (argue for some statute, then another client hires you to argue against it later)

Answer 9

This is okay, two positions two clients is fine. If either client would be disadvantaged must obtain consent

Question 10

Repping multiple clients in same matter (like a corporation and their execs)

Answer 10

Lots of potential conflict, requires disclosure and consent

Question 11

Remedy for potential conflict developing into actual conflict

Answer 11

Withdraw from BOTH clients rep (because you have confidential info from both clients now)

Question 12

New client in related case of old client

Answer 12

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

Question 13

Former GOV. employee now in private

Answer 13

Can’t work on anything you had a ‘personal and substantial’ part in unless you get gov’ts consent.

Question 14

Imputed Disqualification Elements for it to be okay:

Answer 14

1) Screened off from associates
2) do not share in any fees in the matter
3) Your former gov. employer is INFORMED (not consent)

Question 15

What if you were a clerk of court

Answer 15

consent from ALL PARTIES.

Question 16

prosecutors working for defense later

Answer 16

CA only explicitly disallows. Silent on civil cases but screening is fine.

Question 17

Conflict b/w lawyer and client:

Answer 17

No Gifts from client can be solicited.

NO DRAFTING WILLS IF YOU (or close relative) ARE BENEFICIARY UNLESS YOU ARE BLOOD RELATED

Question 18

Limiting liability of the attorney:

Answer 18

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)

Question 19

Settling malpractice claim

Answer 19

must have independent counsel read the settlement

Question 20

Selling rights to a client’s story

Answer 20

ABA: Not until matter ends
CA: discourages, but fine if Judge is okay with it and client knows and consents

Question 21

Loans to client

Answer 21

ABA forbids ALL financial assistance unless it’s a contingency basis OR an indigent client

Question 22

Entering into business deals with client

Answer 22

"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

Question 23

Serving on a company Board

Answer 23

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)

Question 24

Counsel as witness:

Answer 24

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

Question 25

Close relationship with adversary:

Answer 25

IMMEDIATE FAMILY: must have client consent
CA says “other intimates” must have written consent and disclosure of any legal, business or personal relationship with any party or witness NOT imputed to colleagues

Question 26

Organization as a client (federal securities law rules)

Answer 26

Fiduciary duty is to the COMPANY not people.
If you discover an Officer taking advantage of company, FIRST:
1) report to CEO or Chief Legal Counsel;
2) If nothing, go to highest authority in co.; if you REASONABLY believe to prevent FRAUD, PERJURY, SUBSTANTIAL INJURY TO ORG OR INVESTORS:
3)disclose to SEC.
CA: preempted by securities laws so you have to follow these fed laws. ABA has similar ‘reporting up’.

Question 27

Conflict of interest: Difference between California Rules and ABA?

Answer 27

ABA requires that attorney reasonably believes he can still adequately represent all party’s interests and requires written disclosure/consent of parties.
California 1) NO reasonable lawyer standard, 2) requires disclosure/consent to potential conflict and ANOTHER for actual conflict 3) only “written disclosure” when conflict arises out of prior relationship/personal interest

Question 28

Concurrent Conflict of interest:

Answer 28

When there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests (the lawyer cares about one side too much).
He can avoid this conflict if he reasonably believes he can competently/diligently rep each affected client despite conflict, and each client gives informed/written consent

Question 29

Reporting corporation violations:

Answer 29

ABA: If you find illegal stuff going on in org, must report up the ladder to highest authority THEN to outside sources ONLY TO PROTECT THE ORGANIZATION ITSELF (that’s your client) UNLESS some fed law like securities law violations preempt this.
CA: Cannot disclose confidential info to outsider unless substantial death/bodily harm will occur unless fed law preempts