Week 7 Lecture

Question 1

(1) or (2) representation occurs when an attorney represents two clients whose interests are adverse to one another. Two potential problems are (3) and (4), but this conflict can be circumvented with a (5).

Answer 1

1. simultaneous 2. concurrent 3. confidentiality 4. favortism 5. waiver from each client

Question 2

7 things a court may consider when deciding whether to honor a client’s consent to representation by an atty with a conflict of interest

Answer 2

1. whether conflict is “consentable”–lawyer can provide adequate representation 2. extent of disclosure/discussions with client 3. whether consent was truly voluntary (no pressure from attorney or others) 4. when the attorney raised the issue with the client (should be at initial meeting!) 5. capacity of client 6. whether independent counsel was consulted 7. whether consent is written and signed (imperative)

Question 3

2 things an attorney should do for a client who wishes to waive conflict of interest rights

Answer 3

1. try to dissuade 2. advise to seek another attorney

Question 4

An issue conflict occurs when an attorney argues (1) of a (2), the result of which may be that one client’s interests are harmed.

Answer 4

1. opposing sides 2. legal issue

Question 5

Another type of conflict is successive representation, which involves a (1) and a (2) whose interests conflict. The remedy is to (3).

Answer 5

1. current matter 2. former client 3. disclose all cases worked on

Question 6

Regarding publication interests, apply the confidentiality rules–obtain (1), or obtain (2) if the client is dead. Permission to a write a book is NOT the same as (3)!

Answer 6

1. consent from client 2. consent from state 3. waiver of attorney-client privilege

Question 7

8 types of alternative conflicts of interest (besides successive, issue or simultanous)

Answer 7

1. business transactions 2. publication, literary and media rights 3. financial assistance to clients 4. a lawyer’s interest in litigation (bonus, financial gain other than fees) 5. gifts from clients 6. agreements with clients not to sue for malpractice 7. relatives of lawyers 8. sexual relationships with clients

Question 8

Business transactions with clients should be (1). You should not do (2) and being business partners does not create an (3). The agreement to this end should be (4)

Answer 8

1. separate 2. both 3. obligation to represent the company 4. in writing

Question 9

Gifts should be (1) only, or they may create (2).

Answer 9

1. nominal 2. expectations

Question 10

If a third party is paying for litigation, he should be informed that (1).

Answer 10

1. no information can be given just because he is paying (and the situation should generally be avoided)

Question 11

(1) or (2) disqualification means the entire firm is disqualified and fees are (3),

Answer 11

1. imputed 2. vicarious 3. disgorged

Question 12

A (1) or (2) isolates a disqualified person by setting up procedures to prevent the person from involvement with or communication about the matter. Examples are (3).

Answer 12

1. screen 2. ethical wall 3. passwords

Question 13

8 procedures for screens

Answer 13

1. memo to all in firm informing of conflict and screen, and admonishing them not to discuss matter with person 2. indications on files and docs to indicate the limitations on access 3. firm and dept. emails and voicemails concerning matter in questions not communicated to lawyer or PL 4. wall must be erected in a timely manner 5. physical separation 6. agreement signed by person vowing not to disclose info about matter or discuss with anyone at firm 7. no shared fees generated by matter (accting procedures to back up policy) 8. announcements of screen republished periodically as a reminder

Question 14

3 times a conflict check ought to be performed

Answer 14

1. hiring a new employee 2. representing a new client 3. undertaking a new matter