Independent Professional Judgment- Conflict of Interest

Question 1

Can a lawyer represent a client if the representation may be materially limited by the lawyer’s own interest

Answer 1

No UNLESS
1. the lawyer reasonably believes he can provide competent and diligent rep to the affected client

2. the rep is not prohibited by law.
3. The affected client gives informed consent, confirmed in wiring.

Question 2

Under the Model Rules, may a lawyer related to another lawyer rep a client in a matter in which the other lawyer is rep another party.

Answer 2

No, unless each client gives informed consent.

Question 3

Under the Model Rules, may a lawyer related to another lawyer rep a client in a matter in which the other lawyer is rep another party.

Answer 3

A lawyer is not permitted to rep a client in a matter in which the lawyer knows or reasonably should know that the other party’s lawyer is a relative, lives with the lawyer, is a client of the lawyer, or has an intimate personal relationship with the lawyer, unless the lawyer first informs the client in writing of the relationship.

Question 4

May you have sexual relations with a client?

Answer 4

No, unless a consensual sexual relationship already existed when the attorney-client relationship began. The client cannot waive the conflict through informed consent.

Question 5

Can a lawyer be a witness?

Answer 5

No, not permitted as an advocate at a trial in which the lawyer is likely to be necessary witness unless:
- Testimony relates to an uncontested issue OR

• the testimony relates to the nature and value of legal services rendered in the case OR
• (MR) disqualification of the lawyer would work substantial hardship on the client OR
• (CA rule) The lawyer has obtained the client’s informed written consent

Question 6

Under the Model Rules, may a lawyer acquire an interest in litigation?

Answer 6

No, a lawyer must not obtain a proprietary interest in the cause of action or subject matter of the litigation in which he/she represents a client, unless:

1. lawyer acquires a lien by law to secure payment of a fee or
2. The lawyer contracts for a reasonable contingency fee, so long as the case is not criminal or domestic-relations matter.

Question 7

Under the Model Rule, can an attorney assist a client with financial assistance?

Answer 7

No, it’s propped with respect to pending or planned litigation, except that a lawyer is permitted to advance litigation cost( medical examination and the cost of obtaining and presenting evidence to the client

Limited in Context of litigation*

Question 8

Under the CA rule, can an attorney assist a client financially?

Answer 8

A lawyer is not permitted to directly or indirectly pay or agree to pay the personal or business expenses of a prospective or existing client.

Question 9

Under Ca rule, may an attorney pay expenses to third persons.

Answer 9

Yes, related to the representation.

Question 10

Under the CA rules may an attorney advance lit cost?

Answer 10

Yes, with repayment contingent on the outcome of the case.

Question 11

Can a lawyer enter into a business transaction with a client?

Answer 11

No, nor may an attorney knowingly acquire an adverse interest to the client, unless
- the terms are fully disclosed in writing

• fair and reasonable
• the client understand them and
• the client consents in writing

Question 12

Conflicting interest between Current Clients

Answer 12

a lawyer must nor represent a client if

1. doing so would be directly adverse to the interest of another current client OR
2. There is a Significant risk that the rep of the client will be materially limited by the lawyers rep UNLESS
   a. lawyer subjectively and objectively reasonably believes that she will be able to provide competent and diligent rep to each affected client
   b. the rep is not prohibited by law
   c. the rep does no involve the assertion of a claim by one client against another client rep by the lawyer in the same litigation or other proceeding before a tribunal and
   d. Each affect client gives informed consent, confirmed in writing

Question 13

Current and Former Clients

Answer 13

A lawyer who has previously rep a client must not later rep another person in the same or substantially similar matter if that person’s interest are materially adverse to the former client’s interest unless the former client gives informed consent in writing or informed written consent

Question 14

Same/ Substantially Related Matter

Answer 14

A substantially related matter will be found if the new client’s matter is the same transaction/dispute as the prior client’s. OR

Involves substantial risk that confidential factual information from the prior rep will advance the new client’s position.

Question 15

What is the scope of a substantially Related Matter?

Answer 15

1. if a lawyer was directly involved in a specific transaction, then subsequent rep of other clients with materially adverse interest in that transaction is clearly prohibited.
2. If the lawyer commonly handled a general type of problem for a former client, then the lawyer is not prohibited from later representing another client in a factually diff problem of the same typeover though the subs rep involves a position adverse to the prior client.

Question 16

Can a lawyer rep a client whose interest are materially adverse to those of his prospective client?

Answer 16

No, a lawyer can’t rep a client with interest materially adverse to those of a prospective client in the same or substantially related matter if the lawyer rec. information.

**

Question 17

What is the distinction between CA and the Model rules re prospective clients?

Answer 17

Ca requires material information from the prospective client that could be sig harmful. . CA does nor req the information to be sig harmful to the prospective clients unless both client give informed consent in writing.

Question 18

Under the Model Rules, , may an attorney accept payment from a third party.

Answer 18

No, a lawyer may not accept payment from a third party for rep unless the client gives informed consent

Question 19

May a lawyer have an Organization as a client?

Answer 19

A lawyer rep an org owes duties of loyalty and confidentiality to th org, not its individual constitution.

1. a lawyerly rep an org and its constitution, as long as there is no conflict.
2. when speaking with the org const, the attorney must make it clear who the attorney is rep when it is or becomes apparent that the orgs interest are/may become adverse to the constituent.

Question 20

Misconduct?

Answer 20

Upon learning of an action by a person associated with organization that will likely cause subs injury to the org, the lawyer must proceed as is reasonably necessary in the best interest of the org.

Question 21

Reporting with the Org?

Answer 21

A layer must report the matter to higher authority in the org. unless it is not in the best interest of the org to do so.

CA: in taking any action, the lawyer must not reveal any client confidentiality info.

Question 22

Reporting Outside of the Org? Under the Model Rules

Answer 22

If the lawyer reports to the highest authority and the authority refuses or fails to act in a timely manner, and it is a clear violation of law and the lawyer reasonably believes the violation is reasonably certain to use substantial injury to the org, THE LAWYER MAY reveal info to outside authorities to the extent necessary to prevent the injury.

Question 23

Reporting outside of the org? Under the CA Rules.

Answer 23

If the lawyer has reported to the highest authority that can act on behalf of the org and that authority insist upon action, or fails to act, in a manner that is a violation of a legal obligation or violation of the law that will likely cause substantial injury to the org, the lawyer must proceed as is reasonably necessary in the best interest of the org, which may include the right or duty to resign or withdraw.

Question 24

What is the Ca exception for Reporting outside of the org?

Answer 24

Ca rules allow but don’t require disclosure of reasonably believed necessary to prevent criminal act that the lawyer reasonably believes necessary to prevent a criminal act that the lawyer reasonably believes will result in death or substantial bodily har.