Duty of Loyalty and Conflicts of Interest (Lawyer's Former Work and Special Roles) Flashcards
Conflicts with Former Clients
Can’t use confidential info to former client’s disadvantage without consent or confidentiality exception. It would violate both.
If you have a new client who wants to sue a former client, you would need that former client’s consent.
Opposing Client in Substantially Related Matter
Can’t represent new client adverse to former client in same or substantially related matter.
Matter is substantially related if:
- Same transaction or dispute
- Substantial risk that information 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.
Opposing Client of Former Firm in Substantially Related Matter
Prohibited without consent if lawyer actually acquired material confidential information at former firm.
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.
Effect of Incoming Lawyer’s Conflict on Firm
If lawyer’s conflict comes from association with former firm, others at new firm won’t be disqualified if:
- Disqualified lawyer screened
- Disqualified lawyer doesn’t share in 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!
Firm Opposing Client of Departed Lawyer
If you leave a firm and take a client with you, remaining lawyers can oppose former client unless:
- Same or substantially related matter, and
- At least one remaining lawyer has material confidential information
Conflicts with Prospective Clients
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.
If you gained confidential info during consultation with prospective client, you must not later represent a client against the prospective client in the same or substantially related matter if info could significantly harm the prospective client.
CA: any material info creates conflict - disclaimers don’t really work
Conflicts with Prospective Clients - Imputation and Screening
Others at firm not disqualified if:
- Disqualified lawyer avoided exposure to unnecessary info in deciding whether to represent the prospective client
- Disqualified lawyer screened and doesn’t share in fee
- Written notice given to prospective client
Revolving Door Conflicts
These are for gov employees and third party neutrals.
There’s a unique and narrow standard of “personal and substantial involvement” applying to these gov situations. Trying to apply the broader “substantial relation” rule to the gov as a client would be so broad that it would conflict lawyers out of a ton of private sector work. So it’s a policy decision to use narrow scope for gov conflicting.
Government Work to Private Sector
If you leave the gov, you must not rep a private client in a “matter” in which you participated personally and substantially while in gov service unless the gov agency gives informed consent confirmed in writing.
Apply in Hypo 5D: As EEOC lawyer, you litigated against Haliburton. May you rep Haliburton in that same case without EEOC’s consent? No.
But what if you wrote regs defining fair pay while at the EEOC: can you now litigate the meaning of those regs at the new firm? Yes. Because the regs are not a “matter” which involves “specific facts and parties”. Matter is narrow.
Government Work to Private Sector - Imputation and Screening
Others at new private firm are not disqualified if:
- Disqualified lawyer screened and doesn’t share in fee
- Notice given to gov agency
Conflict Based on Information Gained During Government Service
After obtaining confidential gov info about a person, can’t rep private client with interest adverse to that person if the confidential info could be used agains that person you got the info about while you worked at the gov. This is info you got under gov authority that isn’t publicly available.
Imputation of that conflict to others at your firm can be cured with proper screening.
Private Sector to Government Work
If you participated personally and substantially in a matter while in private practice, you cannot work on the same matter later for the gov without consent by your gov employer confirmed in writing.
New employer/government must approve. You will have duties to former client from private practice. Use regular private practice rules for that former client.
Prior Involvement as Judge, Law Clerk, or 3rd Party Neutral
Can’t rep any party as lawyer in same matter without consent of all parties
Imputed disqualification of your colleagues can be cured by screening you and giving written notice to all the parties and the appropriate tribunal (where you did gov work)
CA difference: Screening of prior MEDIATOR or SETTLEMENT JUDGE won’t work, those colleagues CANNOT be screened to avoid imputation
Gov Employee or 3rd Party Neutral Negotiating for Employment
Lawyer working on matter in these roles can’t negotiate for private employment with parties or attorneys.
Exception: law clerks
