Duty of Loyalty and Conflict with Former Clients Flashcards
Can a lawyer oppose a former client in a substantially related matter?
A lawyer must not represent one client whose interests are materially adverse to those of a former client in a matter that is the same or substantially related to a matter in which the lawyer represented the former client UNLESS the former client gives informed consent confirmed in writing.
What is the meaning of “substantially related matter”?
Two matters are “substantially related” if:
1. they involve the same transaction or legal dispute, or
2. there is a substantial risk that confidential, factual information that would have normally been obtained in the prior representation **would materially advance **the client’s position in the subsequent matter.
Actual information exchange is not required.
What are the applicable rules when a lawyer seeks to oppose a client from a former firm?
If the lawyer’s former firm represented a client in a matter and the lawyer actually **acquired confidential information that is material to the matter **while working at the former firm, the lawyer must not subsequently represent another person in the same or a substantially related matter adverse to the former firm’s client UNLESS the former firm’s client gives informed consent, confirmed in writing.
How can a new lawyer cure a former-client conflict when she arrives at a new firm?
Where a lawyer’s former-client conflict arises out of the lawyer’s association with a former firm, the imputation will be cured and other lawyers at the new firm will not be disqualified if:
1. the disqualified lawyer is properly screened from the matter (i.e., cannot work on the case, discuss it with those who do, or have access to case files) and does not share in the fee; and
2. the former client is given notice to ensure compliance
Is a firm prohibited from representing a client adverse to a former client who was poached by a departing attorney?
Not prohibited, unless:
1. the matter is the same or substantially related to that in which the formerly associated lawyer represented the former client; and
2. at least one remaining lawyer in the firm has confidential information that is material to the matter.
What duties are owed when a lawyer wants to oppose a prospective client in a substantially related matter?
California exception applies
A lawyer who obtains confidential infromation during a consultation must not later present a client adverse to the prospective client in the same or substantially related matter if the information could be significantly harmful to the prospective client UNLESS both the current client and prospective client provide informed consent, confirmed in writing.
In CA: a conflict exists if the lawyer obtained information that is “material” to the current matter; it does not need to be “significantly harmful” to the prospective client.
How can others at the same firm oppose a lawyer’s prospective client?
Others at the firm may still represent the current client against the prospective client without consent if they:
1. demonstrate that the disqualified lawyer took care to avoid exposure to more confidential information that was necessary to determine whether to represent the prospective client
2. can show disqualified lawyer was timely screened and will not share in the fee; and
3. give **written notice **to the prospective client
Private work following government work on the same matter
California exception applies
A lawyer who leaves government service and enters private practice must not represent a private client in a matter in which the lawyer participated personally and substantially while in governmnet service, UNLESS the governmnet agency gives informed consent, confirmed in writing.
“Matter” = specific set of facts involving specific parties
In CA: law prohibits a prosecutor from switching sides and representing or otherwise aiding the defense in the same case.
How to screen when a lawyer joins a private firm after govt. work?
Imputation to others at the firm will be cured if: (i) the disqualified lawyer is screened from the matter and does not share in the fee, and (ii) written notice is goven to the government agency to ensure compliance
What happens is a lawyer received confidential governmnet information about a person while in government service?
The lawyer must not later represent a private client whose interests are adverse to that person, when the information could be used to the material disadvantage of that person.
Imputation to others at the firm will be cured if the disqualified lawyer is screened from the matter and does not share in the fee.
Private sector to govt. work
A current government employee must not participate in a matter in which they participated personally and substantially while in private practice or nongovernmnetal employment, unless their government employer gives informed consent, confirmed in writing.
Prior involvement as a judge, law clerk, or third-party neutral
A lawyer must not represent a private client in a matter in whci hthe lawyer has earlier participated personally or susbtantially while serving as a judge or other adjudicative officer or as a law clerk to such a person, or as an arbitrator, mediator, or other third-party neutral, UNLESS all parties to the proceedings give informed consent, confirmed in writing.
Imputation can be cleared so long as the lawyer is properly screened and does not share in the fee, and written notice is given to the parties and the appropriate tribunal.
Government employee or third-party neutral negotiation for private employment
A lawyer who is a govt employee or acting as a third-party neutral must not negotiate for private employment with any party or lawyer in a matter in which the lawyer is participating personally and substantially.
There is an exception for law clerks to judges and arbitrators, because they are often newly admitted lawyers for whom a clerkship is only a tempirary first step in their legal career.
Can a lawyer evaluate a client’s affairs for the use of a third-party?
California exception applies
Yes, a lawyer may evaluate a client’s affairs for the use of a third person if the lawyer reasonably believes that making the evaluation is compatinle with the lawyer’s other responsibilities.
However, if the lawyer knows or should know that the evaluation will materially harm the client, the lawyer must obtain the client’s informed consent.
In CA: there is no counterpart to this rule.
Membership in legal services organization
A lawyer may serve as a director, officer, or member of a legal services organization even though the organization serves persons whose interest are adverse to the lawyer’s regular clients.
The lawyer must not knowingly particpate in a decision or action of the organization if doing so:
1. would be incompatible with the lawyer’s obligations to a client under the general conflict of interest rules; or
2. would adversely affect the representation of one of the organization’s clients whose interests are adverse to those of a client of the lawyer
