Duty of Loyalty and Conflicts of Interest (Lawyer's Former Work and Special Roles)

Question 1

2 General Rules on Conflicts with Former Clients

Answer 1

1) CAN”T USE INFO AGAINST EM: Can’t use confidential info to former client’s disadvantage without consent or confidentiality exception. It would violate both.

2) TO SUE EM, GET CONSENT: If you have a new client who wants to sue a former client, you would need that former client’s consent.

Question 2

Can’t Oppose Former Client in Substantially Related Matter

Answer 2

Can’t represent new client adverse to former client in same or substantially related matter.

Matter is SUBSTANTIALLY RELATED if:
- Same TRANSACTION or dispute OR
- SUBSTANTIAL RISK that info likely obtained in prior representation would MATERIALLY ADVANCE new client’s position

Example 1: repping a new client in divorce against one of your firm’s partners’ former clients might be substantially related if your firm partner learned a bunch of info about that former client that could help your new client.

Example 2: What if your partner only represented a real estate venture where Kim was a limited partner? That’s ok. As a limited partner you would know very little about her so there is little risk.

This might create conflicts with current client too.

Question 3

Opposing Client of Former Firm in Substantially Related Matter

Answer 3

General Rule: Opposing the client of a former firm in a substantially related matter is prohibited IF the lawyer actually acquired material confidential information at former firm.

Exception: informed consent confirmed in writing

This means if you actually acquired confidential info material to a matter while you were working at old firm, you must not later represent a new client adverse to your former firm’s client in the same or a substantially related matter without informed consent of the former firm’s client confirmed in writing.

Question 4

Effect of Incoming Lawyer’s Conflict on Firm

Answer 4

If lawyer’s conflict comes from association with former firm, others at new firm won’t be disqualified if:
- Disqualified lawyer SCREENED
- Disqualified lawyer NOT SHARING FEE
- Former client given NOTICE
- CA: above steps won’t work if disqualified lawyer SUBSTANTIALLY PARTICIPATED in the matter. The new colleagues face disqualification by imputation!

Question 5

Firm Opposing Client of Departed Lawyer

Answer 5

If you leave a firm and take a client with you, old firm’s lawyers CAN OPPOSE former client UNLESS:
1) Same or substantially related matter, AND
2) At least one remaining lawyer has MATERIAL CONFIDENTIAL INFO

Question 6

Conflicts with Prospective Clients

Answer 6

Basic Rule: You can’t rep a new client against the prospective client in matters that are:
1) same or SUBSTANTIALLY RELATED and
2) You gained CONFIDENTIAL info from prospective client and
3) that info could SIGNIFICANTLY HARM the prospective client

CA: any material info creates conflict - disclaimers don’t really work

Prospective Client = person who consults lawyer in good faith about possibility of relationship

If you’re gonna oppose a prospective client in a substantially related matter, look out for conflicts.

Question 7

Conflicts with Prospective Clients - Imputation and Screening

Answer 7

Others at firm not disqualified if:
1) Disqualified lawyer AVOIDED EXPOSURE to UNNECESSARY INFO in deciding whether to represent the prospective client

and SCREENING TRIFECTA exists:
1) Disqualified lawyer SCREENED
2) NOT SHARING fee
3) Written NOTICE given to prospective client