Independent Professional Judgment - Conflict of Interests

Question 1

General Rule when Lawyer’s Personal Interests are involved

Answer 1

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

Question 2

Rule when Lawers are related

Answer 2

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

Question 3

Rule regarding sexual relationships with Cs

Answer 3

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

Question 4

Rule regarding relationship or responsibility to a party or a witness - CA only

Answer 4

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

Question 5

When may a lawyer serve as a witness?

Answer 5

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

Question 6

May a lawyer acquire a proprietary interest in the cause of action?

Answer 6

ABA - not permitted except (i) when L acquires a lien to secure fee payment or (ii) contingent fees

Question 7

When may a lawyer provide financial assistance to a client?

Answer 7

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

Question 8

May a lawyer enter into business transactions with a client?

Answer 8

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

Question 9

When may a lawyer obtain literary/media rights?

Answer 9

Not until the conclusion of litigation

Question 10

May a lawyer solicit a gift from a client?

Answer 10

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

Question 11

May a lawyer prospectively limit malpractice recovery?

Answer 11

ABA - permitted if C is represented by another independent L in making the agreement

CA - no, not permitted

Question 12

May a lawyer settle with a client over a legal malpractice claim?

Answer 12

Yes, if C is given a reasonable opportunity to seek independent counsel regarding the agreement

Question 13

Conflict of Interest - Current Clients

Answer 13

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)

Question 14

Conflict of Interest - Former Clients

Answer 14

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)

Question 15

Rules regarding CoI when Lawyer switches private law firms

Answer 15

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

Question 16

Imputation of the Conflict of Interest to the New Law Firm

Answer 16

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

Question 17

Imputation of Conflicts - Former Government Lawyers

Answer 17

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

Question 18

Conflict of Interests - Prospective Clients

Answer 18

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

Question 19

May a Lawyer accept payment on behalf of a client by a 3rd party?

Answer 19

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

Question 20

What duties does a Lawyer owe to an organizational client?

Answer 20

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

Question 21

What are Lawyer’s responsibilities related to rectifying misconduct of an employee to an organizational client?

Answer 21

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

Question 22

What are Lawyer’s responsibilities to reporting organizational misconduct?

Answer 22

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)

Question 23

Imputed Disqualification

Answer 23

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

Question 24

May a client waive an imputed disqualification?

Answer 24

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

Question 25

May a lawyer represent a client when L previously served as an arbitrator, mediator, or judge for that client?

Answer 25

No, if L participated personally and substantially in the matter L cannot represent C unless all parties give informed written consent