Independent Professional Judgment - Conflict of Interests Flashcards
General Rule when Lawyer’s Personal Interests are involved
L must not represent C if there is a significant risk that representation may be materially limited by L’s own interests unless (i) L reasonable believes he can provide competent/diligent representation to the affected C, (ii) the representation is not prohibited by law, and (iii) the affected C gives informed consent confirmed in writing
Rule when Lawers are related
ABA = related L’s (parent, child, sibling, spouse) cannot represent Cs in the same matter unless C gives informed consent
CA = even when there is not a significant risk that L’s representation of C will be materially limited, L cannot represent C in a matter in which L knows or should know that another party’s L (i) is a spouse, parent, child or sibling of L, (ii) lives with L, (iii) is a C of L, or (iv) has an intimate personal relationship with L, unless L first informs C in writing of the relationship
Rule regarding sexual relationships with Cs
Generally not allowed unless it is a consensual sexual relationship which predates the L-C relationship (cannot be waived through informed consent)
in CA - exception for sexual relations with C who is L’s spouse or registered domestic partner
Rule regarding relationship or responsibility to a party or a witness - CA only
even when there is not a significant risk that L’s representation of C will be materially limited, L is not permitted to represent C in a matter in which L has, or knows that another L in L’s firm has, a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same matter, unless L first informs C in writing of the relationship
When may a lawyer serve as a witness?
ABA - L is not permitted to represent C if L is likely to be a necessary witness unless the testimony relates to an uncontested issue, the value of the legal services, or disqualification would be a substantial hardship to C
in CA - L is not permitted to represent C unless the testimony relates to an uncontested matter, the value of legal services, or L obtains C’s written informed consent
May a lawyer acquire a proprietary interest in the cause of action?
ABA - not permitted except (i) when L acquires a lien to secure fee payment or (ii) contingent fees
When may a lawyer provide financial assistance to a client?
ABA - prohibited with respect to pending litigation except L is permitted to advance litigation costs to C
CA - not permitted to directly/indirectly pay for personal/business expenses of a prospective or existing C (but can be paid to 3rd party with C’s consent), but L is permitted to advance reasonable litigation costs to C
May a lawyer enter into business transactions with a client?
Not permitted unless the terms are fully disclosed (and understood by C) in writing, and fair/reasonable to C, and C is given an opportunity to seek independent counsel
When may a lawyer obtain literary/media rights?
Not until the conclusion of litigation
May a lawyer solicit a gift from a client?
No - L cannot solicit a gift or prepare an instrument giving a substantial gift to L, unless C and L are related
CA - follows ABA rule and adds that L may also prepare such an instrument if C has been advised by an independent L, even if C is not related to the L who prepares the instrument
Unsolicited gifts are generally ok if they meet general standards of fairness
May a lawyer prospectively limit malpractice recovery?
ABA - permitted if C is represented by another independent L in making the agreement
CA - no, not permitted
May a lawyer settle with a client over a legal malpractice claim?
Yes, if C is given a reasonable opportunity to seek independent counsel regarding the agreement
Conflict of Interest - Current Clients
General Rule - L cannot represent Cs with directly adverse interests or represent C if there is a significant risk that representation of C will be materially limited by L’s responsibilities to a current client, unless
- L reasonably believes (subjectively and objectively) that he can provide competent/diligent representation,
- The representation is not prohibited by law,
- C is not asserting a claim against another C in the same litigation, and
- Cs both give informed consent, confirmed in writing (ABA) or informed written consent (CA)
Conflict of Interest - Former Clients
L cannot represent a new C in the same or substantially related matter (same transaction or substantial risk that confidential information obtained from former C could materially advance new C’s position) as a former C if new C’s interests are materially adverse to the former C’s interests (unless former C gives informed consent, confirmed in writing/informed written consent)
Rules regarding CoI when Lawyer switches private law firms
Limitations on the new firm - L cannot accept employment materially adverse to C from a former law firm when L has obtained confidential information material to the new matter without former C’s informed written consent
Imputation of the Conflict of Interest to the New Law Firm
ABA - Conflict will not be imputed if the disqualified L is timely screened off and doesn’t share the fee, and written notice and certification of compliance with ethical rules are given to the former C
CA - follows ABA rule, but adds: the prohibited L must not have substantially participated in the same or a substantially related matter at the prior firm
Imputation of Conflicts - Former Government Lawyers
Ls are prohibited from representing a C in a matter (need not be adverse) in which L participated personally and substantially as a government Lawyer without informed written consent of the government agency
Conflict of Interests - Prospective Clients
L cannot represent Cs with materially adverse interests in he same or a substantially related matter if L received information from the prospective C that could be significantly harmful to the Current C (ABA) or “material to the matter” (CA) UNLESS the prospective and current C both give informed written consent or there is limited exposure, timely screening, no fee sharing, and notice to the prospective C
May a Lawyer accept payment on behalf of a client by a 3rd party?
ABA - not permitted unless C gives informed consent, there is no interference with L’s professional judgment, and L-C confidentiality is preserved
CA - same as ABA except C must give informed WRITTEN consent
What duties does a Lawyer owe to an organizational client?
Generally, L owes the same duties of loyalty/confidentiality to the organization
L may represent the organization and its employees as long as no other conflict exists. L must explain C’s identity to constituents when the organization’s interests are or may become adverse to those of the constituents
What are Lawyer’s responsibilities related to rectifying misconduct of an employee to an organizational client?
L must proceed as is reasonably necessary in the best interest of the organization when he learns of action by an employee that is likely to cause substantial injury to the organization
What are Lawyer’s responsibilities to reporting organizational misconduct?
Within the organization
- ABA - L must report misconduct to a higher authority in the organization if L reasonably believes it is in the best interest of the organization.
CA - L, in taking any action, must not reveal any information protected by the duty of confidentiality
Outside the Organization
- ABA - if a higher authority fails to act in a timely or appropriate manner, and it is a clear violation of the law and will result in substantial injury to the organization, then L can report to an outside authority
- CA - if the higher authority insists upon action or fails to act in a manner that is a violation of a legal obligation or a violation of the law that will likely cause substantial injury to the organization, L must proceed as is reasonably necessary in the best interest of the organization (includes L’s right and, when appropriate, duty to resign or withdraw)
Imputed Disqualification
The law firm is disqualified unless the prohibition is based on a personal interest of L and there is no significant risk of materially limiting representation of C
May a client waive an imputed disqualification?
Yes, if L reasonably believes he can provide competent/diligent representation, the representation is not prohibited by law, L is not representing two Cs with claims against each other in the same litigation, and C gives informed consent, confirmed in writing/informed written consent
