Duty of Loyalty

Question 1

Concurrent conflict of interest

Answer 1

A lawyer must not represent a client if the representation creates a concurrent conflict of interest.

A conflict exists if there is a significant risk that the representation of the client will be materially limited by the lawyer’s personal interests or by the interests of another (current client, former client, or third person)

CA: low risk joint representation must be addressed

ABA: A lawyer may undertake representation despite the concurrent conflict if:

1. the lawyer reasonably believes that he can competently and diligently represent each affected client despite the conflict
2. Attorney informs each affected client
3. Attorney receives clients informed consent

CA: 1. no reasonable lawyer standard

2. applies to potential as well as actual conflicts
3. Only requires written disclosure to the clients where the conflict arises out of lawyer’s personal or prior relationships interests

Question 2

Former Conflict

Answer 2

Rule: a lawyer who formerly represented a client in a matter may not thereafter represent another person in the same or substantially related matter if that person’s interests are materially adverse to those of the former client

Exception: attorney gets former client’s informed, written consent

Think: duty of confidentiality

Question 3

General rule statement loyalty

Answer 3

RS: a lawyer owes a duty to avoid conflicts of interest.

Question 4

General rule statement concurrent

Answer 4

RS: a lawyer must not represent a client if the rep creates a concurrent conflict of interest

Def: A cci is present where the lawyer’s representation of a client is directly adverse to the other client OR there is a significant risk that the representation will be materially limited by the lawyer’s personal interest, or by the interests of another client, former client, or third person.

Question 5

Ownership or Financial Adverse Interest

Answer 5

RPC: a lawyer must not enter into a business transaction with a client or knowingly acquire an interest adverse to client UNLESS

1. the transaction and terms are fair and reasonable to the client
2. fully disclosed and transmitted in writing to the client so client can reasonably understand
3. advice of independent counsel
4. Client gives informed consent in writing to the terms (aba and lawyer’s role)

Question 6

literary media rights

Answer 6

ABA: not allowed at all
CA: no provision—but need to inquire a judge

Question 7

Financial Assistance

Answer 7

RPC: must not provide financial assistance in connection with litigation unless

1. lawyer may advance court costs and expenses, which may contingent on outcome of matter
2. Indigent client may pay court costs and expenses

CA:

1. applies in all contexts, not just litigation
2. prohibits a lawyer from buying a potential client with a promise to pay debts and
3. lend money allowed to client for any purpose after the lawyer is hired if the client gives her a written promise to repay the loan.

Question 8

Third party payment assistance

Answer 8

ABA: must not accept compensation unless

1. the client gives informed consent (written in CA)
2. there is no interference with the lawyer’s independent and professional judgment or with relationship
3. information is protected.

Question 9

Malpractice Liabilty

Answer 9

ABA: a lawyer may not make an agreement with client limiting his malpractice liability unless the client is independently represented by counsel.

CA: prohibits limitation under all circumstances.

Question 10

Imputed Conflicts

Answer 10

If a lawyer faces a conflict of interest, no lawyer in that firm may represent the client.

Resolve by:
1. giving informed written consent

Exceptions:

1. conflicts between former and current government lawyers
2. personal interest with no significant risk
3. close family relationship
4. sexual relationship and
5. conflicts arising out of the disqualified lawyer’s prior association with a law firm and the lawyer is timely screened

Screening:

1. timely screened
2. no part of the fee
3. written notice given to any affected former client
4. Certifications of compliance with the screening procedures given to former client

CA: CA lawyer not subject to discipline for an imputed conflict because they are silent. Vicarious disqualification of the law firm as a result of the lawyer is automatic where the tainted lawyer has actual confidential information from a representation and switches sides.