Duty of Loyalty and Conflicts of Interest--Lawyer's Former Work Flashcards
May a lawyer oppose a client against a former client where the issues in the 2 matters are essentially the same?
RULE–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 both the current and former client consent after consultation
How is a lawyer prohibited from using confidential information to former client’s disadvantage?
A lawyer must not reveal a former client’s confidential information or use such information to the former client’s disadvantage without consent
* Unless it has become generally known or an exception to duty of confidentiality applies)
* True regardless of whether the matters are substantially related
When is a lawyer prohibited from representing a new client against a client of a former firm?
Where the lawyer actually acquired confidential information about the client, the lawyer must not subsequently represent a new client in the same or substantially related matter adverse to the former firm’s client if confidential information is material to the matter
* Waivable where both new and firm’s former client consent after consultation
* Remember conflicts imputed, so others at disqualified new firm also disqualified (VA DOES NOT HAVE SCREENING FOR THIS)
Is a firm prohibited from representing a client adverse to a former client that left with a lawyer?
NO, 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
Who is a “prospective client?”
A person who consults with a lawyer in good faith about the possibility of forming a lawyer-client relationship with respect to the matter
* NOT where one unilaterally communicates information to lawyer with no reasonable expectation lawyer is willing to discuss possibility of representation
May a lawyer who obtains confidential information during consultation with prospective client later reprsent client adverse to prospective client?
NO–can’t represent in the same or substantially related matter if the information could be significantly harmful to the prospective client in the matter
* Waivable if both the current client and prospective client provide informed consent, CONFIRMED IN WRITING
* Can screen–lawyer must: (1) take reasonable measures to avoid exposure ot more confidential than necessary to determine whether to represent prospective client; (2) be screened; and (3) give written notice to client of subject matter of consultation and screening measures
When is a lawyer who leaves government service conflicted out from a case?
In a matter in which the lawyer personally and substantially participated while in government service
* Matter means specific set of facts involving specific party or parties (e.g., judicial proceeding, but NOT drafting legislation)
* Can waive if private client AND government agency consent after consultation
Where else may a lawyer who leaves the government be conflicted out?
Where the lawyer received confidential government information about a person, they cannot 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
* Can be screened out, and must not share in the fee
When is a lawyer who leaves private sector to work for government conflicted out?
Can’t participate in a matter in which they participated personally and substantially while in private practice unless either
1. Government employer and private client both consent after consultation OR
2. Under applicable law, no one else can act in the lawyer’s place in the matter
NOTE this is not imputed to others at disqualified lawyer’s government agency
What is the rule if the lawyer was previously involved as a judge, law clerk, or third-party neutral?
Must not represent private client in matter in which lawyer earlier participated personally and substantially, unless all parties to the proceedings consent after consultation
* Cured if: (1) screened and (2) written notice given to parties and appropriate tribunal
