Conflicts of Interest Flashcards
MR 1.7 (a)
Conflict of Interest: Current Clients
A lawyer shall not represent client if representation involves concurrent conflict of interest:
–representation of one client will be directly adverse to another
– Significant risk that representation of one or more clients will be materially limited by responsibilities to another client, former client, third person, personal interest of lawyer
MR 1.8
Conflict of Interest: Current Clients: Specific Rules
Lawyer will not entering the business transaction with client/knowingly acquire ownership, possessory, security, or other pecuniary interest adverse to client unless:
– Transaction/terms are fair and reasonable to client and fully disclosed and transmitted in writing/ reasonably understood by client
– Client advised in writing, given reasonable opportunity to seek advice of independent legal counsel and
– Client gives informed consent, in writing, SIGNED by CLIENT, to the essential terms of transaction and lawyers role in transaction, including if lawyers representing client
Lawyer will not use info relating to representation a client to disadvantages client unless given informed consent, except as permitted/required by rules
Lawyer will not solicit any substantial gift from client, including testamentary, or prepare on behalf of client instrument to to giving gifts to lawyer(Does not apply to family members)
Lawyer will not provide financial assistance, except advancing court costs and expenses, and representing indigent clients
Lawyer will not accept compensation for representation from someone other than the client unless client gives informed consent, no interference with professional judgment/ relationship, and info protected
Aggregate settlement rule
Limitations on lawyer liability for malpractice/Claim settlement in representation agreement unless client independently represented
Shall not acquire a proprietary interest in cause of action/ subject matter of litigation conducting for client, except for legal lead to secure lawyers fees/expenses and contract with client for reasonable contingent fee
No sex with client
MR 1.9
Duties to Former Clients
(a) lawyer who has formerly represented to client in matter shall not thereafter represent another person in substantially related matter adversity interested former client, unless informed consent, confirmed in writing
(b) substantially related matter in which former firm previously represented + lawyer has acquired protected information material to matter, unless informed consent, confirmed in writing
(c) formerly represented to clients/ present or former firm formerly represented can’t use information to disadvantage a former client except as rules permit require, or info becomes generally known
Westinghouse: “Client”?
Broad definition for this purpose:
–each oil company entertained a reasonable belief that it was submitting confidential information regarding its involvement in the uranium industry to a law firm which had solicited info upon a representation that firm was acting and undivided interest of each
– No special invitation for large firms
Conflict of Interest: Joint Representation & Allowable Confidences
– Neither total open book nor total closed book is appropriate
– Keep secrets, but withdraw if those secrets are material
– Share info unless it’s material, and with drawl is instructed to keep important secrets
Advance Waivers
Purpose: stick with the favored client
Limits:
– Can risks adequately be described?
– Sophistication of the parties (See MR 1.7, comment 22)
Start-Up Problems
If presented with fact pattern involving two founders of nascent start up, MUST determine who of the founders is the client, if the business is the client, if it is joint representation of both the clients
Aggregate Settlement Rule
– Criminal and civil litigation
– Where one pleas/settlement affecting multiple clients
– Informed consent SIGNED BY CLIENT
– DOES NOT governed class actions/derivative claims (MR 1.8 (g))
“Substantially Related”
MR 1.9, comment 3
– Same transaction
– Same legal dispute
– Risk of harmful confidential info
Threshold Qs:
Deciding between MR 1.7 or MR 1.9
Lawyer represents client X at Firm 1.
Leaves Firm 1 for Firm 2.
Representing client adverse to X?
Firm 2 can represent party adverse to X in unrelated suit (No COI)
Firm 2 can represent party adverse to X in related suit if lawyer learned no material information about old suit (No COI)
Firm 2 can represent party adverse to X in related suit if lawyer DID learn material information about old suit, if there is consent from X. (Yes COI)
“Screening”
Screening = isolated from new suit
Per MR 1.10(a)(2), if lawyers properly screened, and there is no need for consent from the former client.
MR 1.10
IMPUTATION Of Conflicts of Interest: General Rule
(a) while lawyers are associated a firm, can’t represent the client when otherwise prohibited, unless:
– Would be prohibited based on personal interest disqualified disqualified lawyer and does not present significant risk of material limitation
–arises out of a former firm and disqualified lawyer timely screened, written notice given the former clients, certifications of compliance/ screening procedures provided to client as written request
(b) if a lawyer leaves firm, firm is not prohibited from representing a person materially adverse to client represented by former associate (not currently at firm)
Ineffective Assistance of Counsel:
CONFLICTED LAWYERS
Holloway:
Multiple representation of codefendants
D counsel claims conflict/court does nothing
–6th amendment violation without showing actual conflict
Cuyler v Sullivan: Multiple representation of codefendants No objections/no judicial inquiry Overturn conviction if: – Actual conflict adversely affected – Compare to Strickland > "reasonable probability, that but for counsel's unprofessional errors, the results of the proceeding would have been different"
MR 1.7(b)
Current clients: EXCEPTIONS
Even if concurrent conflict, may represent if:
– Lawyer reasonably believes will be able to provide competent and diligent representation
– Representation not prohibited by law
– Representation does not involve assertion of claim by one client against another insane litigation/other proceeding
– Each affected client give informed consent, confirmed in writing
Wheat v United States
– Waiver of conflict was disallowed
– Differ to District Court, re potential conflicts
