Pg 7

Question 1

What is the attorney work product doctrine?

Answer 1

Protects an attorney’s work and mental impressions prepared in anticipation of litigation from compelled disclosure/discovery. Only applies to materials (docs/tangible things). I.e.: notes from witness interviews, attorney memos, trial strategy materials, etc.

Question 2

What is the purpose of the attorney work product doctrine?

Answer 2

Allows for preparation and development of legal theories and strategies to be free from unnecessary intrusion

Question 3

What is the discretion of the court in relation to the attorney work product doctrine?

Answer 3

It has discretion to decide whether to allow disclosure

Question 4

What is the exception to the attorney work product doctrine?

Answer 4

If the party seeking documents can show a substantial need for the materials to prepare for trial, and can’t without undue hardship get a substantial equivalent, then the attorney work product doctrine protection can be overcome

Question 5

Attorney interviews an important witness, takes notes, then the witness dies before the other side can interview him. Would the exception to the attorney work product doctrine apply here?

Answer 5

Yes, the opposite side might be able to get the attorney’s notes if they can show a substantial need for them because no substantial equivalent is available

Question 6

Conflict of interest falls under what category of duty?

Answer 6

Duty of loyalty to the client

Question 7

What is the MR 1.7 rule about conflicts of interest?

Answer 7

Attorneys shall not represent a client if it involves:
– the representation of one client being directly adverse to another client
– a significant risk that representation of one or more clients will be materially limited by the attorney’s responsibility to another client/former client/3rd person/personal interest of the attorney

Question 8

What are times that you can still represent a client despite a conflict of interest?

Answer 8

– if it’s not illegal/prohibited by law
– if the attorney has a reasonable belief he can provide competent representation to each affected client
– if the parties are not adverse, so the representation doesn’t involve claims by one client against another client in the same litigation
– each client gives informed written consent

Question 9

Is it always possible to get informed consent from multiple parties in order for an attorney to avoid a conflict of interest?

Answer 9

No, some conflicts are non-consentable. Ie: Some states say the same attorney cannot represent more than one defendant in a capital case

Question 10

How does a court determine whether a party can give informed consent to allow an attorney to represent multiple parties?

Answer 10

Looks like the whether the interests of the client will be adequately protected if the client is allowed to give informed consent

Question 11

Is it possible for attorneys to represent multiple adverse parties in a mediation context?

Answer 11

Yes, this is not a tribunal

Question 12

What is informed consent?

Answer 12

When each affected client is aware of the relevant circumstances and material/reasonably foreseeable ways a conflict could adversely affect their interests

Question 13

Once an attorney has the informed consent of a client, how long does it last?

Answer 13

Until the client revokes it, which could happen at any time

Question 14

What is the test to determine the effectiveness of informed consent?

Answer 14

The extent the client reasonably understood the material risks, how comprehensive the explanation of the adverse consequences was, and how familiar the client was with the situation

Question 15

Is it possible for an attorney to represent multiple parties that have interests that are fundamentally antagonistic to each other?

Answer 15

No, but common representation is allowed when the clients are generally aligned in interest

Question 16

What are the steps that an attorney needs to take to resolve a conflict of interest?

Answer 16

Identify the clients, determine if a conflict of interest exists, decide if representation can be done despite the conflict, counsel with both clients, get informed consent in writing

Question 17

If a conflict of interest exists before representation begins, what must the attorney do?

Answer 17

He must decline to represent the other party unless informed consent is given. He must also use reasonable procedures to discover the conflict of interest

Question 18

If a conflict of interest is discovered after representation begins, what must the attorney do?

Answer 18

He should withdraw unless he can get informed consent

Question 19

What are the three types of conflicts of interest?

Answer 19

1. When a third-party tries to interfere in attorney-client relationship
2. When an attorney’s personal interest is in conflict with interests of the client
3. When there are conflicts between two clients

Question 20

If a third-party tries to interfere in an attorney client relationship, who does the attorney owe loyalty to?

Answer 20

Only to the client, not to a third-party

Question 21

If a third-party pays for an attorney to represent someone else, who does the attorney owe a duty to?

Answer 21

Only to the client, not to the third-party.

Question 22

Examples of third parties that might try to interfere in an attorney client relationship?

Answer 22

Insurer, employer, friend, spouse

Question 23

Under the model rule 1.8 an attorney cannot accept compensation for representing a client from someone besides the client unless what?

Answer 23

The client gives informed consent, there is no interference with the attorney’s independent professional judgement or the attorney client relationship, and information related to the representation is protected by confidentiality

Question 24

If a third-party pays for the legal fees for an attorney to represent someone, what must the attorney make sure of?

Answer 24

That the third-party cannot direct or regulate the attorney’s professional judgement in giving legal services, and the attorney must make the nature of the relationship clear to all parties

Question 25

What is involved in the conflict of interest when an attorney’s personal interests are in conflict with the interests of the client?

Answer 25

Model rule 1.8 says that the attorney must guard against anything that will negatively affect the client’s interests because of the attorney’s own financial or personal interests

Question 26

What are some examples of when an attorney’s personal interests can be in conflict with the interests of the client?

Answer 26

Financial, business, professional, or personal interests

Question 27

What are the two different ways that a conflict between two clients can come up?

Answer 27

– when you’re representing one client whose interests are directly adverse to the interests of another client
- if there’s a significant risk that representing one client will be materially limited by the interest of another client

Question 28

Is it ok to have different attorneys from the same firm working on opposite sides of a suit?

Answer 28

No, that is a conflict of interest that is not waivable by the clients

Question 29

All attorneys in a firm must be treated as what?

Answer 29

A single unit, so if one attorney is barred from taking a case because of a conflict of interest, then no other attorney in the firm can take that case either with a few exceptions

Question 30

When is a conflict of interest considered to be personal and not imputed to the entire law firm?

Answer 30

When trial counsel is a witness and the conflict of interest is due to family relationships between attorneys

Question 31

If a divorcing couple wants one attorney to represent both of them, is that OK?

Answer 31

Only if the attorney gets informed consent that is confirmed in writing