duty of loyalty / Conflict / representation despite conflict Flashcards
Duty of loyalty
A lawyer has a duty of loyalty to his client. The duty of loyalty includes the duty to refrain from conflicts of interest. Conflicts of interest can take several forms: conflicts personal to the lawyer, conflicts between current clients, and conflicts between current clients and former clients.
Conflict of Interest: current clients
A concurrent conflict of interest exists if: (a) the
representation is directly adverse to another client; OR (b)
there is a significant risk that the lawyer’s representation
will be materially limited due to his (i) personal interests or
(ii) responsibilities to another present/former client or thirdperson.
Representation despite conflict
However, a lawyer MAY represent a client whose interests
conflict if: (1) he reasonably believes that he will be able to
provide competent and diligent representation to the client;
(2) the representation is not prohibited by law; (3) he’s not
representing parties on opposite sides of the same
litigation; AND (4) each client affected by the conflict gives
informed consent (CA = informed written consent; ABA =
informed consent, confirmed in writing)
Dual representation Criminal Cases
A lawyer should normally decline to represent mutlptiple defendants in a criminal case because the potential for a conflict of interest is so grave.
Potential conflicts: CA written disclosure
In CA, a lawyer must provide written disclosure (even if there is no significant risk that the representation will be limited) when the lawyer: a) has a legal, business, financial or personal relationship to a party
