Loyalty to the Client Flashcards
Loyalty to Client
Attorneys owe an undivided duty to each and every client
Interference
Attorneys must avoid interference with professional judgment
Concurrent conflict of interest: defn
-Representation directly adverse to another client (CA: written consent + written disclosure)
OR
-Significant risk of material limitation on representation because of L’s responsibilities to
1. another client; or
2. former client; or
3. third person; or
4. L’s personal interests
***CA: if L’s connection to party/witness substantially affects L, then L must disclose in writing
Concurrent conflict of interest: duty
L shall not represent if that representation involves a concurrent conflict of interest, UNLESS:
- reasonable belief will be diligent and competent to both (not required in CA); AND
- does not involve claim by one client against another in same litigation; AND
- each gives informed consent confirmed in writing (see CA distinction); AND
- not prohibited by law
Sources of Conflict: Another Client: Aggregate Settlements
Must inform all AND get written consent from each
Sources of Conflict: Another Client: Prospective Client
Prospective Client = person who discusses possibility of forming L/C relationship
-L shall not use/reveal info obtained from prospective client, except when info has become generally known
Prospective Client: Disqualification
- L shall not represent C with interests materially adverse to those of prospective C in same or related manner if received info from prospective client that could be significantly harmful to him/her
- Disqualification is imputed to entire firm unless informed consent of both, in writing OR screening + prompt written notice to prospective C
Sources of Conflict: Former Client
Rule: L shall not represent client if matter SUBSTANTIALLY RELATED & interest MATERIALLY ADVERSE to former client unless informed consent confirmed in writing
***CA: applies only where L obtained material confidential info - then requires written disclosure + written consent
Former Client: Imputed to firm where
- interests materially adverse to former client; &
- L had acquired confidential information
-unless informed consent, confirmed in writing
Sources of Conflict: Third Person
Third party payers: no third party payer unless
- informed consent; &
- no interference with L’s independent professional judgment; &
- information protected by confidentiality
Sources of Conflict: L’s own personal interests: Business transactions with a client
Shall not unless
- terms fair and reasonable; &
- fully disclosed in writing; &
- C advised in writing about opportunity for independent counsel; &
- written informed consent signed by C
L’s own personal interests: Sexual relations with client
Shall not have sexual relations with client unless such relationship existed prior to L/C relationship
-no undue influence
***CA: cannot affect judgment
L’s own personal interests: Payment of personal/business expenses for client
ABA does not allow; may advance only costs
CA: contra
- may, with consent of client, pay expenses to third persons from funds collected or to be collected for the client as a result of representation
- may, after employment, lend money to client upon client’s promise in writing to repay
- may advance litigation costs to client
- may NOT offer to pay expenses for prospective clients (so may troll for business by offering to pay for things)
L’s own personal interests: wills
No prep if L or family gets something, unless L is related to C (including by marriage)
L’s own personal interests: literary publication
Shall not, prior to conclusion of legal matter
***CA: tolerates if only way to obtain representation, with informed consent
