DUTY OF LOYALTY and CONFLICTS OF INTEREST Flashcards
USING CONFIDENTIAL INFORMATION TO FORMER CLIENT’S DISADVANTAGE
LAWYER’S FORMER WORK
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 the duty of confidentiality applies).
OPPOSING FORMER
CLIENT IN SAME OR
SUBSTANTIALLY
RELATED MATTER
(Conflict of Interest Regarding Former Client)
LAWYER’S FORMER WORK
A L who has FORMERLY represented a C in a matter must NOT thereafter represent another person in the SAME OR A SUBSTANTIALLY RELATED MATTER in which that person’s interests are MATERIALLY ADVERSE to the interests of the former client, UNLESS the former client gives informed consent, confirmed in writing.
L must not represent one C whose interests are MATERIALLY ADVERSE to those of a former C in a matter that is the SAME OR “SUBTANTIALLY RELATED” to the matter in which L rep’d the former C, ULESS the FC gives INFORMED CONSENT, Confirmed in writing.
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
OPPOSING CLIENT OF FORMER FIRM IN SAME OR SUBSTANTIALLY RELATED MATTER
If a L’s FORMER FIRM represented a C in a matter and the lawyer had acquired MATERIAL CONFIDENTIAL INFORMATION about the matter while working at the firm, the lawyer must NOT subsequently represent another person in the SAME OR A SUBSTANTIALLY SIMILAR matter adverse to the former firm’s client, UNLESS the former firm’s client gives informed consent, confirmed in writing.
EFFECT OF INCOMING LAWYER’S CONFLICT ON NEW FIRM
ABA: If a L who moves to a new firm is disqualified from representing a client because of a conflict with a former client, the new firm may be disqualified as well unless the lawyer is properly SCREENED (meaning, the disqualified lawyer does not work on the case, discuss it with those who do, or have access to case files), and
does not share fees from the matter, and
the former client is given notice to ensure compliance.
CA: screening and notice will ONLY cure the imputation if the disqualified lawyer did not SUBSTANTIALLY PARTICIPATE in the same or substantially related matter while at their prior firm.
FIRM OPPOSING CLIENT OF DEPARTED LAWYER
*[If L leaves a firm and take L’s clients with them]. *
A L’s former firm is generally not prohibited from representing a person with interests materially adverse to those of a C of the formerly associated lawyer that is not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) remaining lawyer(s) in the firm have protected confidential information that is material to the matter.
OPPOSING PROSPECTIVE CLIENT IN SAME OR SUBSTANTIALLY RELATED MATTER
ABA:
A lawyer who obtains confidential information during a consultation with a prospective client must not later represent a C 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 client and prospective client provide informed consent, confirmed in writing.
Imputation to others will be cured if the other lawyers at the firm:
(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) demonstrate that the disqualified lawyer is timely screened and will not share in the fee; and
(3) give written notice to the prospective client
CA: SAME, but a conflict exists if the L obtained information that is “material” to the current matter; it does not need to be “significantly harmful” to the prospective client.
PRIVATE WORK AFTER GOVERNMENT WORK ON SAME MATTER.
imputation?
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 government service, unless the government agency gives informed consent, confirmed in writing.
As used in this rule, “matter” means a specific set of facts involving some specific parties.
Imputation to others at the firm will be cured if the disqualified lawyer is screened and does not share in the fee, and the government agency is given written notice to ensure compliance.
CONFLICT BASED ON INFORMATION GAINED DURING GOVERNMENT SERVICE
A government lawyer who receives confidential government information about a person 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.
“Confidential government information” means information gained under government authority that the government is prohibited from revealing and that is not available to the public.
Imputation to others at the firm will be cured if the disqualified lawyer is screened and does not share in the fee.
GOVERNMENT WORK
FOLLOWING
PRIVATE WORK ON SAME MATTER
A current public employee must not participate in a matter in which they participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives informed consent, confirmed in writing.
Matter = specific set of facts involving specific parties.
PRIOR INVOLVEMENT IN MATTER AS JUDGE, LAW CLERK, OR THIRDPARTY NEUTRAL
ABA: A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as a judge or other adjudicative officer or as a law clerk to such person, or as an arbitrator, mediator, or other third-party neutral, unless ALL parties to the proceedings give informed consent, confirmed in writing.
IMPUTATION: Imputation to others at the firm will be cured if the disqualified lawyer is screened and does not share in the fee, and written notice is given to the parties and the appropriate tribunal.
CA: The CA rule provides that if the disqualified lawyer’s conflict is based on their prior service as a mediator or settlement judge, the imputation cannot be cured.
GOVERNMENT EMPLOYEE OR THIRDPARTY NEUTRAL NEGOTIATING FOR PRIVATE EMPLOYMENT
A lawyer who is a government 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 as long as the judge is notified).
CONFLICT WHEN LAWYER ACTS AS EVALUATOR (ABA ONLY)
Under the ABA Rules, 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 compatible with the lawyer’s other responsibilities to the client. 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 before making the evaluation.
There is no California counterpart to this rule.
MEMBERSHIP IN LEGAL SERVICES ORGANIZATIONS
A lawyer may serve as a director, officer, or member of a legal services organization (apart from the L’s regular employment) even though the organization serves persons whose interests are adverse to the lawyer’s regular clients.
However, the L must not knowingly participate in a decision or action of the organization IF:
* Doing so would be incompatible with the lawyer’s obligations to a client under the general conflict of interest rules; or
* Doing so would adversely affect the representation of one of the organization’s clients whose interests are adverse to those of a client of the lawyer.
LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS
ABA ONLY!
The ABA Rules provide that when a lawyer is working on a law reform project and is asked to participate in a decision that could materially benefit one of the lawyer’s clients, the lawyer must disclose that fact (but need not identify the client).
CA does not have a counterpart rule.
QUICK-ADVICE PROGRAMS
A lawyer may participate in a quick-advice program sponsored by a court or nonprofit organization.
The RPC generally apply to the lawyer-client relationship, but the conflicts of interest rules are relaxed.
Because a lawyer in this situation has no time to run a standard conflicts check, the conflicts rules relating to current and former clients do not apply unless the lawyer actually knows that giving the quick advice creates a conflict of interest.
