Duty of Loyalty/COI

Question 1

Define

Duty of Loyalty

Answer 1

Lawyers owe clients a basic duty of loyalty and independent professional judgement. When a lawyer’s independent judgement is compromised by a nonclient interest (i.e., a conflict of interest arises), the lawyer may be in breach of the DOL. A COI may arise between the lawyer and client, current clients, current and prospective clients, current and former clients, or between current clients and third parties.

Question 2

Rule

Current Clients COI

Answer 2

Lawyer must not represent a client if doing so would be directly adverse to the interests of another current client or if there is a significant risk that the representation of the client will be materially limited by the lawyer’s responsibilities to the current clien, unless:
1. lawyer reasonably believes she will be able to provide competent and diligent representation to each client
2. representation not prohibited by law
3. clients not asserting a claim against each other in the same litigation
4. each client gives informed consent confirmed in writing

Question 3

Rule

Former and Current Client COI

Answer 3

A lawyer who previously represented a client must not later represent another person in the same or substantially similar matter if that person’s interests are materially adverse to the former client’s interest unless:
i. [ABA]: the former client gives informed consent / [CA]: informed written consent

Same/substantially related:
i. Same transaction/dispute as prior client’s or
ii. Involve substantial risk that confidential factual info from prior representation will advance new client’s position

Question 4

Conflics with third party

Rule for accepting compensation from third party

Answer 4

Lawyer must not accept compensation from a third party represnting a client unless:
1. there is no interference with lawyer’s professional judgement
2. client confidentiality is protected
3. client gives informed consent (CA: informed written consent)