Introduction to Concurrent Conflicts of Interest - June 16 Flashcards
What is a concurrent conflict of interest? (Q)
A concurrent conflict of interest is a conflict that exists if:
the representation of one client will be directly adverse to another client; or
there is a significant risk that the representation of a client will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person, or by the lawyer’s personal interest.
The second of these two types of concurrent conflicts of interest is sometimes called a material-limitation conflict.
In general, may a lawyer represent a client if that representation would cause a concurrent conflict of interest? (Q)
No. In general, and subject to exceptions, a lawyer may not represent a client if that representation would cause a concurrent conflict of interest. In this situation, a lawyer is said to be disqualified from the representation. If the conflict is known before the lawyer begins to represent a client, then the lawyer generally must decline the representation. If the conflict arises during the representation, then the lawyer generally must withdraw from the representation.
If the conflict of interest involves multiple clients, and the lawyer wishes to continue to represent any of those clients, the lawyer must evaluate whether he can continue the representation consistent with his obligations to the clients he will no longer be representing, such as the continuing obligation of confidentiality.
Under what circumstances may a lawyer represent a client notwithstanding a concurrent conflict of interest? (Q)
A lawyer may represent a client notwithstanding a concurrent conflict of interest if:
the lawyer reasonably believes that she will be able to represent each affected client competently and diligently,
the representation is not prohibited by law,
the representation does not involve one client asserting a claim against another client represented by the lawyer in the same litigation or other proceeding, and
each affected client gives written informed consent.
To obtain informed consent, the attorney must make each affected client aware of the relevant circumstances and the material, reasonably foreseeable ways in which the conflict of interest could adversely affect the client’s interests. A conflict of interest that can be waived by a client’s informed consent is said to be consentable.
May a client revoke the client’s informed consent to a lawyer’s conflict of interest? (Q)
Yes. A client who has given informed consent to a conflict of interest may revoke that consent at any time. The client may also terminate the lawyer’s services at any time, notwithstanding that the client previously consented to the conflict.
In general, does a concurrent conflict of interest arise if lawyers representing potentially adverse clients are related to one another by blood or by marriage? (Q)
Yes. In general, a blood or marital relationship between lawyers who represent potentially adverse clients is considered to be a concurrent conflict of interest that requires each client’s informed consent to the representation. Such a close relationship between lawyers increases the risk of revealing confidential information and may compromise each lawyer’s loyalty to the client and independent professional judgment.
In general, may a lawyer properly ask a client to waive potential future conflicts of interest? (Q)
Yes. In general, a lawyer may properly ask a client to waive potential future conflicts of interest. However, whether a waiver is effective will depend largely on the extent of the client’s understanding of the potential consequences of the prospective waiver. Broadly speaking, a waiver by a sophisticated client is more likely to be deemed effective than a waiver by an unsophisticated client or a waiver by a client who has little experience with legal services. Similarly, a specific, detailed waiver is more likely to be deemed effective than a vague and open-ended waiver.
In general, is a lawyer permitted to solicit a substantial gift from a client or to prepare on the client’s behalf any document giving a substantial gift to the lawyer? (Q)
No. In general, a lawyer may not:
solicit a substantial gift from a client or
prepare on the client’s behalf any document giving a substantial gift to the lawyer or any person related to the lawyer, unless the lawyer or recipient of the gift is related to the client.
For purposes of this rule, a relation is a spouse, child, grandchild, parent, grandparent, or other person with whom the lawyer or client has a close and familial relationship. This rule applies both to an individual lawyer and to all lawyers in that lawyer’s firm.
This rule does not prohibit simple or insubstantial gifts so long as the situation is generally fair to the client. Nor does this rule prohibit a lawyer from seeking appointment as an executor of the client’s estate or other paying fiduciary position, subject to the general rules regarding conflicts of interest.
A lawyer had represented a client for 20 years, and the client was genuinely grateful for the lawyer’s loyalty and wise counsel. The client instructed the lawyer to revise the client’s will to provide for the lawyer to receive $100,000 from the client’s estate upon the client’s death. The lawyer tried to turn down the testamentary gift, but the client insisted. The lawyer and the client were not related to one another.
May the lawyer prepare the will as instructed by the client? (Q)
No. The lawyer may not prepare the will as instructed by the client. A lawyer is prohibited from preparing on a client’s behalf an instrument that gives the lawyer any substantial gift, unless the lawyer is related to the client (e.g., if the lawyer is a spouse, child, grandchild, parent, or grandparent of the client).
Here, the lawyer was not related to the client, and the proposed gift of $100,000 was substantial by any definition of the term. Thus, the lawyer was prohibited from preparing the will. If the client wants to make the gift to the lawyer, a different lawyer will need to prepare the will.
While a lawyer is still representing a client, may the lawyer negotiate an agreement giving the lawyer literary or media rights to a story based in substantial part on the representation? (Q)
No. While a lawyer is still representing a client, the lawyer may not make or negotiate an agreement giving the lawyer literary or media rights to a story based substantially on information relating to the representation. A lawyer’s acquisition of literary or media rights concerning the subject of the representation creates a risk that the lawyer’s professional judgment about what is best for the client will be compromised by the lawyer’s desire to make decisions that create a more salable story. A lawyer may not put herself in a situation where she is tempted to choose between those two concerns. However, this rule does not prevent a lawyer from accepting as a fee a share of literary property if the lawyer represents the client in a transaction involving that property.
This rule applies both to an individual lawyer and to all lawyers in that lawyer’s firm.
In general, may a lawyer have sexual relations with a client? (Q)
No. In general, a lawyer may not have sexual relations with a client unless a consensual sexual relationship with the client predated the client-lawyer relationship. However, a lawyer should consider whether a preexisting sexual relationship might materially interfere with the lawyer’s ability to represent the client, which would create a material-limitation conflict of interest.
In general, may a lawyer provide financial assistance to a client in connection with pending or contemplated litigation? (Q)
No. Generally, a lawyer is prohibited from providing financial assistance to a client in connection with pending or contemplated litigation, except in two circumstances:
a lawyer may advance court costs and litigation expenses and make repayment contingent on the outcome of the matter, and
a lawyer representing an indigent client may pay court costs and litigation expenses on the client’s behalf regardless of whether the funds will be repaid.
Allowing lawyers generally to subsidize their clients’ lawsuits or lend clients money for living expenses during litigation could encourage clients to pursue frivolous lawsuits and give lawyers too large a financial stake in the litigation. However, advancing court costs and litigation expenses subject to repayment does not present the same dangers, because these advances are similar to contingent-fee arrangements and help ensure access to the courts.
Must a lawyer obtain informed consent from a former client to later represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the former client’s interests? (Q)
Yes. A lawyer who has formerly represented a client in a matter must obtain written informed consent from the former client to later represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the former client’s interests.
For purposes of this rule, a matter may be considered substantially related to the earlier matter if (1) it involves the same transaction or legal dispute, or (2) there is a substantial risk that confidential information from the prior representation would materially advance the new client’s position in the matter.
If a lawyer’s prior firm represented a client in a matter, are there ethical restrictions on the lawyer’s ability to represent a person in the same or a substantially related matter after leaving the firm? (Q)
Yes. If a lawyer’s prior firm represented a client in a matter, the lawyer must not knowingly represent a person in the same or a substantially related matter if (1) the interests of the prior firm’s client are materially adverse to that person; and (2) the lawyer knows material, confidential information about the prior firm’s client. These restrictions may be waived if the prior firm’s client gives written, informed consent.
This rule disqualifies a lawyer only if she has actual knowledge of confidential information about the prior firm’s client. Thus, if a lawyer acquired no knowledge or information about a particular client, these restrictions do not apply.
Is a lawyer restricted from using information relating to the representation of a former client in the representation of a new client? (Q)
Yes. A lawyer is restricted from using information relating to the representation of a former client in the representation of a new client. Specifically, a lawyer who has formerly represented a client in a matter, or whose present or former firm has formerly represented a client in a matter, must not:
use information relating to that representation to the former client’s disadvantage, unless the rules of professional conduct permit or require it, or the information has become generally known or
reveal information relating to the representation, except as permitted or required by the rules of professional conduct.
The former client may waive these provisions by giving written, informed consent.
While serving as a state prosecutor, a lawyer prosecuted a man for driving while intoxicated (DWI). After the lawyer stopped working as a prosecutor, he opened a criminal-defense practice. The state subsequently charged the man with committing a robbery that was unrelated to the DWI charge. The man asked the lawyer to represent him.
May the lawyer represent the man in the robbery case? (Q)
Yes. The lawyer may represent the man. Generally, a lawyer who has represented a client in a matter is prohibited from later representing another person in the same or a substantially related matter in which the other person’s interests are materially adverse to the first client’s. A matter is substantially related if:
it involves the same transaction or legal dispute, or
there is a substantial risk that confidential factual information from the prior representation would materially advance the new client’s position.
Here, the robbery charge and the DWI are different legal disputes, and the unconnected charges present little or no risk that confidential information from the DWI prosecution would advance the man’s position in the robbery case. Thus, even though the lawyer already represented the opposing party (i.e., the state), the robbery is unrelated, and the lawyer may represent the man.
