Pg 8 Flashcards
Should attorneys represent multiple defendants in a criminal case?
No, because there is so much potential for conflict of interest. Attorneys should decline to represent more than one codefendant
Is it ok for an attorney to simultaneously represent clients whose interests are just economically adverse in unrelated matters? Such as representing competing economic enterprises in unrelated litigation
That is fine
If an attorney has a class action suit that has unnamed members, are those members considered clients of the attorney for conflict of interest purposes?
No, so the attorney would not need consent of them before representing a client that is suing them
What are other arenas besides litigation where a conflict of interest can come up?
Transactional matters, estate planning, administration
Does the attorney client privilege apply to commonly represented clients?
No. If litigation results between clients, privilege doesn’t stop communication
What happens if an attorney is commonly representing clients and one client asks the attorney not to disclose to the other client information that is relevant to the representation?
The attorney cannot continue to represent all parties. He has an equal duty to each client who has the right to be informed of anything that could affect his interests involved in the representation and to expect the attorney to use that information to his benefit. So all information must be shared with all clients
If an attorney‘s client shows signs that he is lacking the capacity to make adequately considered decisions regarding the representation, what must the attorney do?
He must maintain a normal client attorney relationship, but if he reasonably believes the client is at risk of substantial physical or financial harm unless protective action is taken, the attorney can consult with individuals or entities that have the ability to take action to protect the client or seek a guardian
What are some protection measures that an attorney can take if he feels his client has diminished capacity?
Consult with the family, seek an enduring power of attorney, consult with support groups.
What must an attorney always keep in mind if he feels like his client has diminished capacity?
The best interest of the client
What are the factors to determine if a client has diminished capacity?
– Client’s ability to articulate reasoning leading to decisions
– variability of his state of mind
– ability to appreciate consequences of the fairness of a decision
– consistency of the decision with the known values of the client
What is MR 2.1 about counsel and advising?
In representing a client, an attorney must use his independent professional judgement to give candid advice about the law and other things like moral, economic, social, and political factors that are relevant to the client. The client is entitled to the straightforward advice of the attorney’s honest assessment.
What is the rule for closely related attorneys representing opposing parties? Ie: spouses
Is it OK if there has been full disclosure of the relationship and its implications to both parties who each give informed consent
If there is a conflict of interest and the attorney just removes his name from a pleading, is that enough?
No, that does not erase the conflict of interest because the attorney is still general counsel for the party
Is it OK for legal partners to represent opposing parties?
If the attorneys decide they can still serve their clients effectively, and full disclosure is given to both clients, and both give written consent, it is OK
What is the rule about business transactions with clients?
Attorneys can not enter business transactions with clients or knowingly acquire an interest adverse to the client unless:
– transaction is fair or reasonable to the client
– fully disclosed
– transmitted in writing and reasonably understood
– client informed in writing to get counsel
– given reasonable opportunity to get counsel
– client gives informed written consent to the terms of the transaction
– transaction does not involve unreasonably high fees
