Week 4

Question 1

Generally, should a lawyer represent a client if it involves a concurrent conflict of interest?

Answer 1

No

Question 2

What is a concurrent conflict of interest?

Answer 2

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

Question 3

IF the lawyer meets the four elements to the conflicts exception, it (MAY/MUST) represent the other client

Answer 3

May.

Question 4

Four elements for the conflicts of interest exception

Answer 4

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

Question 5

Can a client revoke its’ informed consent to a conflict of interest?

Answer 5

Yes, at any time

Question 6

What’s informed consent re: a conflict?

Answer 6

make them aware of relevant circumstances, the advantages and risks of waiving it, and explain the issues re: loyalty, confidentiality, etc.

Question 7

If you’re talking with both clients together, does A-C privilege exist?

Answer 7

NO. Because the other is present, these communications are no longer confidential.

Question 8

Common conflicts re: corporations

Answer 8

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

Question 9

Why is representing multiple co-defendants risky?

Answer 9

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

Question 10

What’s the purpose behind the conflicts rule?

Answer 10

ensuring that each party gets the most zealous representation possible

we don’t want that being tempered by obligations to another party

Question 11

Generally, are lawyers prohibited from engaging in business transactions with clients? Why (not)?

Answer 11

Yes.

worries over self-dealing

Question 12

When is the only time a lawyer can engage in business transaction with client?

Answer 12

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)

Question 13

Except where required, should a lawyer use information re: representation to the disadvantage of the client?

Answer 13

NO, unless the client gives informed consent

Question 14

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.

Answer 14

True

Question 15

When is the appropriate time to acquire the story rights of a represented client?

Answer 15

After representation of the client has concluded

Question 16

Can a lawyer provide financial assistance to a client beyond legal costs?

Answer 16

No. Can pay for litigation costs for indigent clients, or advance those costs, but limit it to legal-related expenses

Question 17

Can a third party pay the legal fees of a represented person?

Answer 17

Yes, so long as the client gives informed consent, information remains confidential, and there’s no interference by the payor

Question 18

What must be true for an attorney to negotiate an aggregate settlement?

Answer 18

each must give informed consent, signed, in writing

must disclose all aspects of the settlement, of anyone involved (who’s getting what, etc.)

Question 19

When can an attorney make an agreement that prospectively limits his malpractice liability?

Answer 19

when the client is independently represented in that negotiation

Question 20

Can a lawyer settle a (potential) claim for malpractice with an unrepresented client or former client?

Answer 20

Yes, but must advise them to seek independent counsel and give them a chance/time to do so

Question 21

Can a lawyer have a sexual relationship with the client if it predates the representation?

Answer 21

Yes, but it MUST predate

Question 22

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….

Answer 22

the client gives informed consent, confirmed in writing

Question 23

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?

Answer 23

only if the former client gives informed consent, in writing

Question 24

if defense counsel raises an issue of multiple representation, and the court doesn’t inquire, is automatic reversal required? (Holloway)

Answer 24

Yes (Holloway)

Question 25

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?

Answer 25

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)

Question 26

what is Strickland’s requirement for an ineffective assistance of counsel claim?

Answer 26

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)

Question 27

Did Mickens hold that Holloway’s automatic-reversal remedy is only appropriate where the trial court ignored an objection to multiple representation?

Answer 27

Yes

Question 28

How much discretion to courts have to accept/deny waivers of a conflict of interest? (Wheat)

Answer 28

“substantial latitude” - courts don’t trust attorneys