Week 4 Flashcards
Generally, should a lawyer represent a client if it involves a concurrent conflict of interest?
No
What is a concurrent conflict of interest?
1) representing one client will be DIRECTLY adverse to another; AND
2) significant risk exists that representation will be materially limited by the responsibilities to
- another client
- FORMER client
- a THIRD PERSON
- the lawyer’s personal interests
IF the lawyer meets the four elements to the conflicts exception, it (MAY/MUST) represent the other client
May.
Four elements for the conflicts of interest exception
1) lawyer reasonably believes he can provide competent and diligent representation to each client
2) representation not prohibited by law
3) representation doesn’t involve one client asserting a claim against the other client in the same proceeding
4) each affected client gives INFORMED consent, IN WRITING
Can a client revoke its’ informed consent to a conflict of interest?
Yes, at any time
What’s informed consent re: a conflict?
make them aware of relevant circumstances, the advantages and risks of waiving it, and explain the issues re: loyalty, confidentiality, etc.
If you’re talking with both clients together, does A-C privilege exist?
NO. Because the other is present, these communications are no longer confidential.
Common conflicts re: corporations
attorney represents entire Org. and individuals (CEO), whose interests may conflict, especially if individual is charged
corporation may try to pay a blanket fee to represent both
Why is representing multiple co-defendants risky?
one might be more culpable than the other
they may have inconsistent trial strategies
their defenses are rarely consistent
both may try to claim the other did it
What’s the purpose behind the conflicts rule?
ensuring that each party gets the most zealous representation possible
we don’t want that being tempered by obligations to another party
Generally, are lawyers prohibited from engaging in business transactions with clients? Why (not)?
Yes.
worries over self-dealing
When is the only time a lawyer can engage in business transaction with client?
If it’s fair, transmitted in writing, client is told to get advice of other counsel, and gives informed consent in writing
(but you really shouldn’t. Just stop being their attorney)
Except where required, should a lawyer use information re: representation to the disadvantage of the client?
NO, unless the client gives informed consent
TRUE/FALSE
A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client.
True
When is the appropriate time to acquire the story rights of a represented client?
After representation of the client has concluded
Can a lawyer provide financial assistance to a client beyond legal costs?
No. Can pay for litigation costs for indigent clients, or advance those costs, but limit it to legal-related expenses
Can a third party pay the legal fees of a represented person?
Yes, so long as the client gives informed consent, information remains confidential, and there’s no interference by the payor
What must be true for an attorney to negotiate an aggregate settlement?
each must give informed consent, signed, in writing
must disclose all aspects of the settlement, of anyone involved (who’s getting what, etc.)
When can an attorney make an agreement that prospectively limits his malpractice liability?
when the client is independently represented in that negotiation
Can a lawyer settle a (potential) claim for malpractice with an unrepresented client or former client?
Yes, but must advise them to seek independent counsel and give them a chance/time to do so
Can a lawyer have a sexual relationship with the client if it predates the representation?
Yes, but it MUST predate
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless….
the client gives informed consent, confirmed in writing
If at a previous firm, a lawyer had acquired confidential information from a former client that is material to his current representation, can he continue to represent the new client?
only if the former client gives informed consent, in writing
if defense counsel raises an issue of multiple representation, and the court doesn’t inquire, is automatic reversal required? (Holloway)
Yes (Holloway)
if no objection is raised re: multiple representation, and the court doesn’t inquire, is automatic reversal required? (Cuyler)
If not, what must the defendant show re: CoI?
NO! where no objection has been made to a multiple representation situation, automatic reversal not required
Defendant must demonstrate that the conflict of interest adversely affected defense counsel’s performance (Cuyler, Mickens)
what is Strickland’s requirement for an ineffective assistance of counsel claim?
Defendant must show that counsel was objectively deficient and that but for that performance, the outcome would’ve been different
(active conflict = outcome affected, defendant not required to show effect)
Did Mickens hold that Holloway’s automatic-reversal remedy is only appropriate where the trial court ignored an objection to multiple representation?
Yes
How much discretion to courts have to accept/deny waivers of a conflict of interest? (Wheat)
“substantial latitude” - courts don’t trust attorneys
