Lawyer Client Relationship

Question 1

Duty of a lawyer

Answer 1

A lawyer has a duty of loyalty to his client that requires the lawyer to put the interest of his client above all other interests and to avoid any conflicts of interest.

Question 2

Duty to avoid conflicts of interest

Answer 2

A lawyer must AVOID ALL conflicts of interests with his client. A lawyer must avoid ACTUAL (CURRENT) CONFLICTS of interest and POTENTIAL (FUTURE) CONFLICTS of interest.

Question 3

Duty to avoid conflicts of interests

Answer 3

A lawyer must avoid all conflicts of interest with a client–both actual/current and potential/future conflicts of interest.

Question 4

DIRECT ADVERSITY

Answer 4

Direct adversity
exists when a lawyer represents one client in a matter adverse to another current client, even where the lawyer represents the clients in unrelated matters. This is true in both litigation and transactional matters

Question 5

Loyalty–Conflict of interest Rule

Answer 5

Loyalty–Conflict of interest
Lawyer may not accept or continue representation of a client if
1) representation is DIRECTLY ADVERSE to another client’s interests (actual)
2) there is a SIGNIFICANT RISK that representation of the client will be MATERIALLY LIMITED by the lawyer’s responsibilities to another client or former client, or by personal interests (potential conflict of interest) or in CA
3) the LAWYER HAS LEGAL BUSINESS, financial, professional, or PERSONAL relationship with a party or witness in the same matter, UNLESS the lawyer obtains INFORMED WRITTEN CONSENT from each client and lawyer reasonably believes he can competently and diligently represent each Client.

Question 6

CONCURRENT Conflict of interest rule

Answer 6

Joint clients–a current conflict of interest exists where the clients are directly adverse or there is a significant risk that representation of the client will be materially limited by the lawyers responsibility to another client, a former client, or by personal interest UNLESS the lawyer REASONABLY BELIEVES he can COMPETENTLY and DILIGENTLY represent both clients and each affected client gives informed written consent.

Question 7

Imputed disqualifications

Answer 7

One lawyer’s conflict of interest disqualifies the entire firm UNLESS

1) due to lawyer’s personal interest,
2) lawyer is screened from participation in subject matter of former representation, given no fee and former client is notified in writing, OR
3) lawyer is leaving the firm.

Question 8

Imputed disqualifications

Answer 8

One lawyer’s conflict of interest disqualifies the entire firm UNLESS

1) due to lawyer’s personal interest,
2) lawyer is screened from participation in subject matter of former representation, given no fee and former client is notified in writing, OR
3) lawyer is leaving the firm.

Question 9

Gift from client

Answer 9

A lawyer cannot induce or solicit a substantial gift from a client and cannot prepare an instrument giving himself a gift unless related to the client.

Question 10

Conflicts of Interest Test Strategy approach

Answer 10

Analyze

1) Type of conflict
2) potential or actual conflict
3) ID CA or ABA rules

Question 11

CA no risk limitation for concurrent conflict of interest

Answer 11

Even if the significant risk that lawyer’s representation of the client will be materially limited is NOT present, a lawyer must still provide written disclosure of the relationship to the client and meet the exceptions if:

1) the lawyer has or knows that another lawyer in the lawyer’s firm has any kind of relationship to a party or witness, or
2) the lawyer knows or reasonably should know that another party’s lawyer is related to lawyer, lives with lawyer, is a client of the lawyer or one in his firm, or is in an intimate relationship with the lawyer.

Question 12

Types of Conflicts

Answer 12

Type of conflicts

1) two or more parties
2) client and third party
3) client and lawyer’s personal interest

Question 13

CA Written Informed Disclosure needed if

Answer 13

The lawyer is

1) in a relationship w/ a party/witness
2) related/lives w/ party/witness
3) intimate w/ party/witness

Question 14

Corporation/ Organization

Answer 14

A lawyer employed by an organization or corporation represents the organization/corporation and must act in the BEST INTEREST OF THE ORG/CORPS.

Question 15

Insurance (CA)

Answer 15

Lawyers are permitted to represent both INSURERES AND INSURED whereby the insurer has the contractual right to unilaterally select counsel for the insured, resulting in NO conflict of interest as per statute.

Question 16

No aggregate settlements or guilty pleas

Answer 16

A lawyer who represents TWO OR MORE clients shall not participate in making an aggregate settlement of the claims of or against the clients or, in a criminal case, an aggregate agreement as to guilt or pleas, unless each client gives INFORMED CONSENT.

Question 17

FORMER GOVERNMENT EMPLOYEE

Answer 17

A lawyer who has formerly served as a government employee (judges, adjudicative officers, law clerks, arbitrators, mediators, etc.) shall not represent a client in connection with a matter in which the lawyer participated personally and substantially as a government employee unless the governmental agency gives informed written consent.

Question 18

FORMER GOVERNMENT EMPLOYEE

Answer 18

A lawyer who has formerly served as a government employee (judges, adjudicative officers, law clerks, arbitrators, mediators, etc.) shall not represent a client in connection with a matter in which the lawyer participated personally and substantially as a government employee unless the governmental agency gives informed written consent.

OR

A lawyer may not represent privately if lawyer participated personally and substantially unless informed written consent.

Question 19

Imputed firm disqualification

Answer 19

One lawyer’s conflict of interest disqualifies the entire firm, unless it’s
1) due to lawyer’s personal interest
2) Lawyer is screened from participation in subject matter of former representation, given no fee, and former Client is notified in writing, OR
3) Lawyer is leaving the firm
CLIENT CAN WAIVE

or
Conflict for lawyer applies to entire firm unless
1)based on lawyer personal interest, or
2) former client and firm
3 Timely screened
4) written notice to former client/certify compliance
CLIENT CAN WAIVE

Question 20

Lawyer Leaves the firm

Answer 20

When a lawyer leaves a firm, the firm may represent a person with interests materially adverse to those of a client represented by the formerly associated lawyer UNLESS:

1) the matter is SUBSTANTIALLY THE SAME, AND
2) any remaining lawyer has CONFIDENTIAL INFORMATION that is material to the matter

OR

1) firm okay to represent client with interest adverse
2) to previous client of lawyer
unless matter substantially the same, and
any remaining firm lawyer has confidential information.

Question 21

Conflicts between third party–compensation

Answer 21

informed consent
no interference with lawyer and client
information remains confidential

OR

A conflict of interest exists if there is significant risk that representation of a client will be materially limited by the responsibility/loyalty to a third party or where the third party pays the lawyer’s fee.
There may be no interference with the lawyer’s independent professional judgement or with the lawyer-client relationship and information relating to the representation remains confidential.

Question 22

Client and Lawyer’s personal interest (7)

P, S, B, G, F, L, S

Answer 22

1) Personal beliefs
2) Sexual relationship
3) Business transactions
4) Gifts/proprietary interests
5) financial assistance to clients
6) limiting malpractice
7) settlement of claims