L/C Relationship - Duty of Loyalty Flashcards
Duty of Loyalty
Duty of loyalty requires that a lawyer put his client’s interests above his own and avoid conflicts.
Duty of Loyalty - Concurrent clients
Concurrent clients – If there are concurrent clients with potential conflicts, the lawyer must advise them to seek independent legal counsel.
In the ABA, the lawyer will encourage in writing to seek independent counsel, the lawyer must disclose the potential conflicts, and the client needs to waive them if the lawyer believes he can reasonably represent them.
In CA, the client must give disclosure and consent.
Duty of Loyalty - Former Clients
Former Clients
Unless a former client gives informed consent, a lawyer cannot thereafter represent another person in the same or a substantially related matter when the person’s interest are materially adverse to the interests of the former client.
Duty of Loyalty - Concurrent Conflicts
Concurrent Conflicts
A concurrent conflict exists when there is a significant risk that the representation will materially limit the lawyer’s responsibilities to the client, himself, or third party.
EXCEPTION: A lawyer may represent the clients if
* (1) it is not prohibited by law,
* (2) the client’s are not on the opposite side of the litigation,
* (3) the lawyer reasonably believes that he can competently represent the clients, AND
* (4) informed written consent.
In CA, upon discovering a conflict of interest, the lawyer must withdraw. Both disclosure and consent must be in writing.
Duty of Loyalty - Potential Conflicts of Interest
Potential Conflicts of Interest
Occurs when the lawyer suspects a conflict however representation is not materially limited.
The ABA does not require informed written consent, however, CA rules do.
Duty of Loyalty
Special Clients
Insurance
Insurance
In the ABA, no such rule exists for insurance. However, in CA, the lawyer may represent both the insured and the insurer.
Duty of Loyalty
Special Clients
Organization/Corporation
Organization/Corporation
The lawyer represents the organization and not its constituents.
When a lawyer finds out that the corporation violated a law, he may report to the highest authority in the corporation.
In the ABA, a lawyer may report outside if it’s necessary to prevent substantial injury to the organization.
In the CA, a lawyer may not report outside unless there is (1) substantial risk of bodily injury, or (2) certain death. A lawyer must withdraw otherwise.
Duty of Loyalty
Special Clients
Former Government Employee
Former Government Employee
A former government employee who has worked personally and substantially on a matter cannot work on the same matter at his new firm unless the government consents in writing.
A former government lawyer’s conflict will not be imputed to the firm if** (1) the lawyer is properly screened off and does not get a portion of the fee**, and (2) gives prompt written notice to the former government agency.
Duty of Loyalty
Special Clients
Lawyer Imputed Firm Disqualification
Lawyer Imputed Firm Disqualification
A lawyer’s conflict of interest will not be imputed to the firm if it arises out of a purely personal interest and does not materially limit the lawyer’s representation
or
* (1) if the lawyer is properly screened off and does not get a portion of the fee,
* (2) the conflict arises out of association with the lawyer’s previous firm,
* (3) written notice to former client, AND
* (4) in CA, the lawyer did not substantially participate in the matter at the prior firm.
Duty of Loyalty
Special Clients
Lawyer Terminates Firm
Lawyer Terminates Firm
When a lawyer terminates the firm, that firm may represent clients with interests materially adverse to that of a client represented by the firm association unless
- (1) the matter is substantially the same, AND
- (2) any remaining lawyer has confidential information that is material to the matter.
Duty of Loyalty
Duty of Loyalty - Third Party Conflicts
Third Party Conflicts
A third party may pay for legal representation as long as everything remains confidential, the client consents in writing, and the third party does not try to take control of the litigation.
In CA, the consent must be signed in writing.
Lawyer Client Personal Interests
Lawyer Client Personal Interests
Personal Beliefs
Personal Beliefs
A lawyer may represent a client despite personal beliefs with full disclosure and informed written consent.
Lawyer Client Personal Interests
Lawyer Client Personal Interests
Sexual Relationship
Sexual Relationship
In the ABA, A lawyer shall not have sexual relations with a client unless a consensual relationship existed prior to the lawyer client relationship being commenced.
In CA, the rule does not apply to sexual relations with the lawyer’s spouse or domestic registered partner.
Lawyer Client Personal Interests
Lawyer Client Personal Interests
Business Transactions
Business Transactions
A business transaction between a lawyer and current client is only permitted if
* (1) all terms are fair and reasonable to the client,
* (2) the terms are fully disclosed in writing,
* (3) the client is advised to consult with outside counsel and is given reasonable time to do so, AND
* (4) the client consents in writing.
Lawyer Client Personal Interests
Lawyer Client Personal Interests
Gifts Proprietary Interests
Gifts/Pro Proprietary Interests
A lawyer shall not solicit a substantial gift for a client, especially a testamentary gift, or prepare an instrument giving him or a person related to him a substantial gift unless the client is family.
