MRPC 1.8: CURRENT CLIENT COI SPECIFIC RULES Flashcards
Does Rule 1.7 interplay with 1.8?
YES!
Remember that Rule 1.7 always applies:
Do a 1.7 analysis, then go to 1.8, if anything applies
What does Rule 1.8(a) say? Is it mandatory?
Mandatory
(a) a lawyer shall not enter into a business transaction with a client that is adverse to a client, unless: (needs all three conditions
(1) The transaction is fair and reasonable to the client and the terms are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client
(2) Client is advised in writing of the desirability of seeking the advice of independent counsel and an is given a reasonable opportunity to get that advice; and
(3) Client gives informed consent
Under Rule 1.8(a) does it matter if a client knows a deal is unfair as long as they’ve provided consent?
It does not matter if the client gives informed consent if the deal is not fair:
+ It still violates 1.8(a)
+ Builds onto 1.7(b)(4)
Under Rule 1.8(a)(2), what is a reasonable opportunity to get advice?
You have to give an opportunity to ACTUALLY GO GET THE ADVICE
Ex: If the advice is given and the deal is signed within 30 minutes there was no opportunity
Under Rule 1.8(a)(3), what needs to be included in the informed consent?
+ Must be fully transmitted in writing and in plain English
+ Signed by client
+ Only needs essential terms: Lawyer does not need informed consent for nonessential terms
What does Rule 1.8(b) say?
Cannot use information relating to representation of a client to the disadvantage of the client unless they give informed consent:
[5] To the disadvantage to the client → an independent clause triggered over 1.7 and 1.9
What does Rule 1.8(c) say?
We are worried about lawyers giving advice that results in gifts to lawyers:
+ If the lawyer does not solicit the gift, that is fine
+ BUT if the client gives the lawyer a HUGE gift then we are concerned about 1.7(a)(2)
+ A substantial gift is okay if the lawyer or other recipient of the gift is related to the client
Can a lawyer negotiate an agreement giving them media rights based on a substantial part on info relating to representation?
No. Mandatory! Rule 1.8(d)
Ex: Cuomo’s lawyer wants to write a book about representation during sexual harassment cases. Violation of 1.8(a) if you go into business with client. It doesn’t matter if client gives consent at the start of the case. Trying to protect confidentiality. Presumed conflict. Also applies to former clients.
Are there any circumstances when a lawyer can provide financial assistance to a client in connection with pending or contemplated litigation?
Rule 1.8(e)
A lawyer shall not (mandatory) provide financial assistance to a client in connection with the pending or contemplated litigation, UNLESS:
(1) May advance court costs if the litigation is contingent, OR
(2) May pay court costs for indigent clients
What are the exceptions where a lawyer can accept compensation for someone other than a client regarding pending or contemplated litigation?
Rule 1.8(f)
A lawyer shall not accept compensation for representing a client from one other than the client, UNLESS:
(1) Client gives Informed consent
(2) No interference with the lawyer’s independence of professional judgment
(3) Information relating to representation of a client is protected as required by 1.6
Ex: parent paying for representation of child. When you represent the minor you rep the minor and NOT the paying parent.
Can a lawyer who accepts two or more clients participate in making aggregate settlement of the claims of or against the clients?
No. Rule 1.8(g)
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 crim. an agg. settlement as to guilty or no contest), *unless both give informed consent
What does Rule 1.8(h) say?
A lawyer shall not: MANDATORY
(1) Make an agreement limiting the lawyer’s liability to a client for malpractice UNLESS the client is independently represented in making the agreements OR
(2) Settle a claim for such liability with an unrepresented client UNLESS that person is advised in writing of the desirability of seeking and is given reasonable opportunity to seek the advice of independent legal counsel
Under Rule 1.8(h), does a client’s sophistication or relationship with the lawyer matter in terms of limiting liability for malpractice claims?
It does not matter how sophisticated the client is or the length of the relationship or that they have agreed to it in the past.
HOWEVER, a client may consent to a separate agreement limiting liability IF they have independent representation.
What are the exceptions to 1.8(i): A lawyer SHALL NOT acquire a proprietary interest in cause of action/subject of litigation?
(1) Acquiring a lien to secure fees and expenses
(2) Contract with a client gives a reasonable contingent fee in a civil case
Can a lawyer have a sexual relationship with a client?
Rule 1.8(j) No, unless the sexual relationship already existed before the lawyer-client relationship.