Successive Conflicts of Interest

Question 1

Basic Requirements

Answer 1

must have a former client
former client is now adverse to the current litigation
only a substantially related matter between the former and current representation
where the confidential information is in some sense vulnerable

Question 2

Continuing duties

Answer 2

Confidentiality continues
Loyalty continues to some extent
- loyalty is important but if the issue is unrelated you can be adverse

Question 3

What is needed for an issue to arise

Answer 3

Confidential information must be at risk

Question 4

What must you need to prove

Answer 4

A conclusive irrebutable presumption that client confidentiality is in jeopardy.

• good faith of attorney is irrelevant
• you don’t have to show actual use of the confidential information, just that the attorney had it.

Question 5

Other important issues

Answer 5

Waiver: unlike concurrent clients; waivers are always available
Government: special rules for government - notion of the Chinese wall
Imputation
Courts focus on confidentiality, loyalty, and fiduciary duty

Question 6

Private Parties 2 Approaches to determining confidentiality of subsidiary relationship

Answer 6

Nature of the Information

Relatedness of Areas of Law

Question 7

Nature of the information analysis

Answer 7

Analytica - Posner - look at the information at stake. If the information is serious, this means that there is a substantial relationship

Question 8

Relatedness of areas of law

Answer 8

TC Theaters - look at the relatedness of the representation first. Under the TC theaters approach, as long as they are related in regard to the law, that is enough

Question 9

Which one do most people favor?

Answer 9

The Analytica approach.

Question 10

Things that can happen with a successive conflict

Answer 10

• Presumptive conclusion
• Imputation to the firm
• Screening
• Waiver
• Government lawyers
• Prospective clients

Question 11

Presumptive conclusion

Answer 11

don’t have to show that anyone is misusing information. The lawyer is conflicted out anyways - presumptive conlusion

Question 12

Imputation to the firm

Answer 12

Successive conflicts are imputed to the firm

But there is a rebuttable presumption that the entire firm is imputed. Some courts will let the firm prove that the firm is not affected.

Question 13

Screening

Answer 13

Chinese wall. The rules don’t necessarily like this approach but it works in some circumstances.

Question 14

Waiver

Answer 14

Even if you have a successive conflict, the client may still waive.

Question 15

Waiver under successive vs. concurrent

Answer 15

Compared to concurrent conflict, you have to ask yourself with it is constable. If successive you ask the client. Loyalty factor is not as strong in successive as it is in concurrent.

Question 16

Government lawyers

Answer 16

If you represented to government, you could never be adverse to government and would make them unhirable.

Question 17

Rule for government lawyers in successive conflicts

Answer 17

1.11 Screening is allowed to allow firms that have hired past government lawyers to be adverse to the government

Question 18

Prospective clients

Answer 18

??? P. 22

Question 19

Note about joint representation

Answer 19

What if you rep two people in a business can you still continue with the representation.

Lawyer will be able to argue that it was joint representation and because of this there should never have been an expectation of confidentiality

Question 20

Substantial relationship test

Answer 20

If the subject matter of a former representation and that of a subsequent adverse representation; the latter is prohibited. The former client does not need to show any more than that the matters are substantially related. Court will assume that during the course of the former representation, confidences were disclosed to the attorney bearing on the subject matter of the representation. It’s not the kind of advice that the lawyer rendered but the factual information that she learned that is important. If not substantially related then there is no conflict.

Question 21

Continuing duty of loyalty

Answer 21

There is no confidentiality when there is joint representation. If there is confidential information however, loyalty can come into play.

Rule 1.9. States that the notion that loyalty to a former client survives the termination of the relationship. The lawyer cannot produce a product for a client and then turn around and seek to destroy its legal usefulness.

Question 22

Defenses to disqualification

Answer 22

The client has the right to choose their lawyer
Do not have to dq lawyer because this is a strategic game
Delay trial
Courts have control over their own litigation agenda

Question 23

Liability

Answer 23

A firm acting adversely to a former client in violation of substantial relationship test subjects itself to liability for breach of fiduciary duty.

Question 24

Who is a former client

Answer 24

Any potential person or business who has provided information in a way so that they thought they were dealing with their lawyer.

If the person reasonably believes that they were your client, then there are a former client.

Question 25

Hot Potato problem

Answer 25

Cant drop one client to pick up another one. Cant turn client into former client and then sue them.

Sometimes advance consent could work but courts frown upon this.

Question 26

Strategic note on hot potato problem

Answer 26

A client who wishes to disqualify a lawyer would prefer to be a current client

A lawyer would prefer to say that the client is a former client, if a client at all

Question 27

Standards applied to hot potato

Answer 27

Former client - substantial similarity

Current client - reasonable belief that adverse affect is likely to occur in current or future representation

Question 28

Withdrawal

Answer 28

a law firm may withdraw from a current representation but it can only do so for reasons listed in rule 1.16

Question 29

Waiver Concurrent vs. Successive

Answer 29

Concurrent conflicts may sometimes be waived successive conflicts may always be waived.

Question 30

Exception to the above rule

Answer 30

Maritans: Competing economic interests do not equal adverse for conflicts.

Question 31

Maritrans exception

Answer 31

Client sues law firm for representing competitors

Wins fiduciary duty breach claim.

Even if there is a chinese wall, you need to watch out because there could still be trouble.

Question 32

Imputed disqualification and migratory workers

Answer 32

R 1.10 Imputation of conflict

After a lawyer leaves the government, the firm can still represent UNLESS

Matter is the same or substantially related to that in which the former lawyer represented AND

Any lawyer remaining in the firm has confidential information to that matter

Question 33

Can the client waive this imputed conflict

Answer 33

Yes

Question 34

Migratory lawyers pg 25

Answer 34

look