7 MC Flashcards
(30 cards)
An attorney worked at Big Firm for five years, and she specialized in real estate. During the last three years, the attorney has worked mostly on Conglomerate Corporation’s properties and disputes that arose related to them. Shortly before leaving Big Firm, the attorney handled a matter for Conglomerate Corporation related to the construction of a new apartment complex. The attorney now works at Boutique Firm, and a prospective client explains during an initial consultation that she needs to sue Conglomerate Corporation over a disputed right of way through the very property that holds the new apartment complex—one of the last matters that she handled for Conglomerate. Would it be proper for the attorney to represent the prospective client in this matter against Conglomerate Corporation?
The attorney may represent the new prospective client only if Conglomerate Corporation consents to this in writing. .
An attorney began her career as a prosecutor at the District Attorney’s Office. During her tenure as a prosecutor, she brought charges against an individual suspected of sending ricin, a deadly toxin, in an envelope to a prominent politician, apparently in an unsuccessful attempt to assassinate the public official. The jury found the evidence too attenuated, and it acquitted the defendant. Shortly thereafter, another person, who was a member of a terrorist organization, confessed to sending the ricin and provided extensive evidence of his plot to kill the politician to make a political statement. The attorney resigned from the District Attorney’s Office, partly out of humiliation over this case, and went into private practice. Eighteen months later, the accused individual decides to sue the government over wrongful arrest, slander, libel, and wrongful prosecution over the case in which he obtained an acquittal. The attorney feels that her superiors at the D.A.’s Office had pressured her to press charges in order to satisfy the public uproar over the ricin letters, despite having scanty evidence that the accused individual was actually guilty. The attorney offers to represent the accused individual in his lawsuit against the government, partly to make amends or atone for her role in what she now views as an abuse of government power and a great injustice. Would it be proper for the attorney to handle this case, given her good intentions?
No, a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction.
An attorney represented a man twenty years ago in a divorce with the client’s first wife. The client was a well-known local celebrity, a retired professional athlete who became a semi-successful actor and an outspoken advocate of a radical political cause. Recently, former client’s third wife approached the same attorney seeking representation in obtaining a divorce from the former client. There are no children from the marriage—their children from previous marriages are now adults—and the distribution of assets will follow the terms of a carefully drafted prenuptial agreement between the former client and his third wife. The former client (that is, the husband) long ago provided written informed consent for future conflicts of interest if the attorney represented another party with adverse interests. The attorney does not believe that any confidential information learned from representing the husband twenty years ago in his first divorce will be relevant to the pending third divorce. On the other hand, there is regular media coverage of the husband’s trysts and on-and-off sexual relationships with various actresses and female socialites in the area, and marital infidelity could trigger certain exception clauses in the prenuptial agreement. Would it be proper for the attorney to use the information about husband’s recent indiscretions in representing the third wife?
Yes, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client. his question involves the use of the husband’s recent indiscretion against him. Remember, the rule states that a lawyer may not use an ex-client’s confidential information against the client. So the issue is whether the husband’s recent indiscretion is considered confidential. B is the correct answer because it recognizes that Husband’s recent indiscretion is not confidential. The information is public information that is regularly disseminated in the media. Since it is public, the attorney does not need the husband’s written informed consent to use the husband’s recent indiscretion against him.
Three sisters sustained injuries in a car accident last year. Because they did not have enough money to get separate attorneys, they decided to consent to using the same attorney. Before trial, the opposing party made a settlement offer. One of the sisters had sustained severe injuries, but the other two had only superficial scrapes and bruises. Their attorney believed that the settlement offer was reasonable, and that it would be in the clients’ best interest to accept it to avoid the costs of trial. Even so, the attorney expected the sister with the more serious injuries to be resistant to a settlement offer, because she might obtain a larger judgment if she presented her case in front of a jury. If the attorney obtains consent from the other two sisters to accept the defendant’s settlement offer will he be subject to discipline if he accepts the offer without discussing it the third sister, who had the worst injuries?
Yes, because an attorney must inform and obtain written consent from each client about all the material terms of the settlement before accepting any settlement offer on behalf of multiple clients.
A wealthy heiress hired an attorney to represent her and her family in a complex federal case involving the family business and charges of securities fraud and racketeering. Early in the representation, the attorney and the client start dating and become sexually involved, to the consternation of the rest of the family. The client and her attorney rationalize the relationship by saying that they each have “needs” that their new romantic partner meets, and they have even discussed marriage as an eventuality. Is the attorney subject to discipline for this relationship?
Yes, unless the sexual relationship predates the beginning of legal representation, the lawyer absolutely cannot represent a client with whom he has such a relationship.
An attorney, who often serves as a court-appointed mediator, was appointed to mediate the divorce case between a husband and wife. The case settled in mediation and the divorce was finalized soon after. A year later, the husband sought to retain the attorney to represent him in a modification suit against his wife. The attorney accepted the case and sent a letter to the wife advising her that the attorney had been retained by the former husband to represent him in a modification suit. Are the attorney’s actions proper?
No, an attorney who previously served as a third-party neutral is required to obtain informed consent, confirmed in writing, from all parties to the proceeding prior to representing a party in a suit connected to the previous matter.
An attorney was a state hearing officer for the Workers Compensation Board. The attorney left that position and opened his own law firm, primarily representing parties before the state Workers Compensation Board. One of the cases is the final rehearing of a case in which the attorney had presided as hearing officer at an initial preliminary hearing and ruled on preliminary matters, but the attorney left the Board without issuing any final decision in the case and the Board transferred the matter to another hearing officer. The attorney represents the injured worker, the client. All the parties involved give informed consent, confirmed in writing, for the attorney to represent the client. Is the attorney subject to discipline for representing the client in this matter?
No, because all the parties involved provided informed written consent to the representation, despite the obvious conflicts of interest at stake.
An attorney spent several years working on the state intermediate appellate court as one of its nine justices in a state in which such judges run for election in the general elections every four years. When the attorney ran for re-election, she lost, and needed to return to private practice. The client wants the attorney to represent her in her appeal of a state trial verdict. The case previously came up on appeal before the state intermediate appellate court, but the attorney was not on the panel that decided the case. The state Supreme Court subsequently reversed the decisions of both the appellate court and the trial court and remanded the case for a new trial. The new trial resulted in an unfavorable verdict for the client, so she wants to appeal the case again. Would it be proper for the attorney to represent her in this matter?
Yes, because a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. A judge who is part of a multimember court and later leaves to practice law may represent the clients with pending matters in the court so long as the judge did not personally and substantially participate in the matter. Although the client’s case was heard before the attorney’s court, the attorney was not on the panel that decided the case. Therefore, the attorney did not participate in the client’s case personally or substantially and may undertake representation of the client.
An attorney was a judge for several years. Near the end of her tenure as a judge, she functioned in the role of the chief administrative judge in that court, assigning cases to the other judges and supervising their work, and had only a limited docket of her own trials. The attorney then left the bench and opened her own law practice. The attorney agrees to represent the client in a matter in the same courthouse where the attorney formerly served as a judge. The attorney even remembers the case, but only the names of the parties and the nature of the action, because she assigned it to the trial judge who currently has the case on his docket, but the attorney had no other involvement in the matter. The client’s previous lawyer in the matter was subject to disqualification at the motion of the opposing party due to a conflict of interest. Is it proper for the attorney to represent the client in this matter?
yes, the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. Comment 1 to Rule 1.12 explains that a former third-party neutral will not be considered as having personally and substantially participated in a matter if his involvement did not affect the merits of the case. Remote or incidental administrative responsibilities or actions on a matter will not prevent a former judge from representing a client on that matter.
An attorney was a judge but has left that job and joined Big Firm. Another lawyer at Big Firm represents the client in a case on the docket at the same court where the attorney worked as a judge. In fact, as a judge, the attorney ruled on some of the pretrial motions in the case, mostly evidentiary motions. The firm has screening measures in place to screen the attorney from any participation in the matter. The attorney will receive no part of the fee from the matter, and timely notice went to the parties about the screening measures in place. The other parties, however, did not provide informed written consent to Big Firm’s representation of the client. Is it proper for the other lawyer at Big Firm to continue representing the client in this matter?
Yes, so long as Big Firm also provides timely notice to the appropriate tribunal as well, so that the tribunal may ascertain compliance with screening measures.
An attorney works for a firm. She also describes herself as an outspoken advocate for the rights of unborn children, that is, she passionately favors legal restrictions on abortion. A local abortion clinic asks the firm to represent it in litigation over recent zoning measures that would significantly limit its hours of operation and therefore the number of clients the clinic could accept. The firm agrees to the representation. The attorney firmly refuses to have any part in the representation, and though no formal screening measures are in place, everyone else in the firm avoids discussing the case with her or around her because they are afraid of receiving another lecture about the wrongfulness of abortion. Early in the litigation, the judge considers disqualifying the firm because it employs the attorney, who has a reputation in the community for her advocacy against legalized abortion. Neither the clinic nor the opposing party (the municipal zoning authority) provided written consent to a conflict of interest. Should the firm be subject to disqualification in this case?
No, the firm should not be disqualified where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm.
Big Law Firm represented Conglomerate Corporation, but the primary lawyer who handled Conglomerate’s matters left Big Law Firm, and Conglomerate Corporation followed the lawyer to his new firm for further representation on other matters. Some time later, Giant Company consulted with Big Law Firm about legal representation that would be materially adverse to Conglomerate Corporation. A partner at Big Law Firm accepts Giant’s Company’s new case. Would it be improper for the partner or other lawyers still working for Big Law Firm to provide representation to Giant Company in a lawsuit against Conglomerate Corporation, if the new matter has no substantial relationship to Conglomerate’s previous legal matters?
No, prior lawyers’ knowledge is not imputed unless the matter is the same or substantially related and another lawyer in the firm has information that is material to the matter. The issue here is whether a firm is prohibited from representing a potential client because the firm’s former employee represented the potential opposing party, who was formerly a client of the firm. Model Rule 1.10(b) states that a disqualified lawyer’s conflict of interest is not imputed onto his former firm, unless (1) the matter is “substantially or materially” related to the disqualified lawyer’s representation, and (2) any lawyer remaining at the firm has any protected confidential information.
An attorney works for a firm where another lawyer is representing the defendant in a personal injury lawsuit. The other lawyer has represented the defendant for a long time on unrelated, non-litigation matters, but the personal injury lawsuit is a new case. The victim, the plaintiff in the same personal injury lawsuit, was a college classmate of the attorney and he asks the attorney to represent him in the litigation. The attorney has not learned any confidential information yet about the defendant from his fellow associate at the firm, nor has the attorney learned any confidential information from the victim during their preliminary consultation. The firm decides to undertake the representation of the victim as well. The firm will carefully screen the attorney and lawyer from one another, forbidding them to discuss the case with each other or anyone else in the office, and ensuring that they do not have access to each other’s files for the case. In addition, neither lawyer will receive a bonus from the fees received for this litigation. Under the Rules of Professional Conduct, is it proper for the attorney to represent the victim, given these circumstances?
No, because the Rules of Professional Conduct impute the conflict of the other lawyer to the attorney, and screening procedures do not apply to conflicts between current clients. . Comment 2 for Rule 1.10 suggests that imputation of conflicts of interest should be considered as though a single lawyer in the firm owes a duty of loyalty to her client that vicariously binds the other lawyers in the firm. One lawyer who worked at the firm represented the defendant. Any other lawyers within the firm, including the attorney, would be subject to the duty of loyalty to the defendant.
An attorney is a partner in a law firm, and owns $100,000 worth of stock in Conglomerate Corporation, the named defendant in a new antitrust suit. The attorney’s total compensation from the firm is around $15 million per year, including bonuses, and his net worth is around $500 million. His home is worth about $7 million and the attorney inherited it, so the property is unencumbered by any mortgage or liens. The attorney works in a specialized area of law at the firm and does not have much interaction with the other lawyers, except at parties and occasional partners’ meetings. Another lawyer in the firm seeks to represent the plaintiffs in the antitrust action against Conglomerate Corporation, which is not a client of the firm. Would it be proper for the firm to represent the plaintiffs in litigation against Conglomerate Corporation?
Yes, so long as the attorney is not involved in the representation, there will be no imputation of the attorney’s conflict of interest to the other lawyers in the firm, because it is the attorney’s personal interest and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
A legal secretary in a law firm is married to the owner of an independent retail-clothing store. The firm undertakes representation of a clothing wholesaler, who is suing the same independent clothing store over nonpayment for shipments of merchandise. The legal secretary’s husband hires another firm to represent his store in the lawsuit, and his lawyer asks the court to disqualify the legal secretary’s firm because of her position there. Should the firm be subject to disqualification?
No, if the firm screens the legal secretary from any involvement in the case or from access to any confidential information about the case.
An attorney represented Small Business Associates while working at Big Firm, her first law firm after law school. When the attorney did not make partner at the firm, she ended her employment there and started her own new firm. The attorney took some of her clients with her, including Small Business Associates, whom she continues to represent. Big Firm no longer has Small Business Associates as a client. Big Firm then agrees to represent Conglomerate Corporation in a trademark infringement case against Small Business Associates, the first such case that the latter has ever faced. Can Big Firm represent Conglomerate in a case against its former client, Small Business Associates?
Yes, as long as the matter is not the same or substantially related to that in which the attorney formerly represented the client; and no lawyer remaining in the firm has confidential information about Small Business Associates from when the attorney represented them at that firm.
Years ago, as a law student, an attorney worked on a case for the client during a law firm internship. Now, the attorney’s firm is representing a defendant in a lawsuit in which the client is the plaintiff. The client’s new lawyer moves to disqualify the attorney’s firm from the representation when it learns that the attorney worked for another firm on behalf of the client when the attorney was still a law student. Is the attorney’s firm subject to disqualification in this case?
C. No, as long as the firm screens the attorney from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the non-lawyers and the firm have a legal duty to protect. When a law student performs work for a firm, he is a non- lawyer for purposes of the Model Rules. A firm may represent a client when a conflict of interest arises with a non-lawyer so long as the firm screens the non-lawyer from personal participation and confidential information. Though the attorney is now a lawyer, any conflict of interest that may arise from events that occurred while he was a law student was that of a non-lawyer.
An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left her government position. One of the attorney’s first assigned cases at Big Firm was a new action by the client against the same government agency for which the attorney had previously worked, challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, the attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in the client’s challenge, but instead worked exclusively on enforcement litigation matters. Is the attorney subject to disqualification in the client’s matter against the attorney’s former employer?
No, because the attorney did not participate personally and substantially in the matter as a public officer or employee.
An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left her government position. One of the attorney’s first assigned cases at Big Firm was a new action by the client against the same government agency for which the attorney had previously worked, defending against an enforcement action that the attorney had initiated while at the agency. The defense will involve challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, the attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in the client’s challenge, but instead worked exclusively on enforcement litigation matters. The government agency gives informed consent, confirmed in writing, to the representation. Is the attorney nevertheless subject to disqualification in the client’s matter against the attorney’s former employer?
No, because the appropriate government agency gave its informed consent, confirmed in writing, to the representation. Generally, a former public officer or employee of the government will not be able to represent future clients in matters in which the lawyer personally and substantially participated. Even so, there is an exception if the appropriate government agency gives written informed consent to the representation. Here, the attorney was able to obtain written informed consent from the government agency, and therefore will not be disqualified from the representation of the client.
An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left his government position. One of the attorney’s first assigned cases at Big Firm was a new action by the client against the same government agency for which the attorney had previously worked, defending against an enforcement action that the attorney had initiated while at the agency. The defense will involve challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, the attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in the client’s challenge, but instead worked exclusively on enforcement litigation matters. The government agency refuses to consent to the attorney representing the client, who is the adverse party to the agency, in this matter, and seeks to disqualify Big Firm from representing the client. Is Big Firm subject to disqualification in the client’s matter against the attorney’s former employer?
No, so long as Big Firm screens the attorney in time from any participation in the matter and provides the agency with prompt written notice about the screening measures in effect.
An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a much higher salary, and the attorney accepted the position and left her government position. One of the attorney’s first assigned cases at Big Firm was a new action by the client against Conglomerate Corporation. The attorney had worked on an enforcement against Conglomerate Corporation and learned confidential government information about the entity during the litigation. The government agency gives its informed consent, confirmed in writing, to the representation. Is the attorney nevertheless subject to disqualification in the client’s matter against the attorney’s former employer?
yes, the attorney has confidential government information about a person acquired while working for the government agency, and therefore may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.
An attorney worked for several years for a federal government agency in regulatory enforcement. The attorney was involved in several enforcement matters against Conglomerate Corporation. Big Firm has always represented Conglomerate Corporation in all its litigation and regulatory compliance matters. The attorney made a good impression on the Big Firm partners when serving as opposing counsel in the same litigation. At the end of a deposition of Conglomerate Corporation’s executives during the discovery phase of an enforcement proceeding, Big Firm partners approached the attorney privately and asked if the attorney would be interested in leaving the agency for a position at Big Firm. The attorney explained that they would have to match his current salary at the government agency for him to consider the proposal. Big Firm then scheduled an employment interview with the attorney, at the end of which they offered to double his salary if he left the agency and accepted a position at Big Firm. The attorney decided to postpone deciding until the pending agency enforcement matters against Big Firm’s client were complete, in order to avoid the appearance of a conflict of interest. The matters dragged on for another year, however, and Big Firm eventually withdrew its offer. Is the attorney subject to discipline?
Yes, because a lawyer currently serving as a public officer or employee shall not negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially.
An attorney spent several years working for the state Office of the Attorney General in its environmental litigation division. While there, the attorney began a case against a scrap metal facility for burying toxic materials on its grounds. The attorney then left government service and went to work for Big Firm. There, the attorney began representing a group of neighboring landowners in a lawsuit against the same scrap metal facility over the same burying of toxic material, as it had polluted the groundwater and had migrated to adjacent properties underground. Is it proper for the attorney to represent these plaintiffs?
No, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency.
Obtaining: RULE 1.7: Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
