4. Conflicts of interest (12-18%)

Question 1

How is a conflict waived?

Answer 1

• Lawyer reasonably believes that he can represent the affected client competently and diligently
• Lawyer gets informed consent (full explains risks)
• Consent is in writing of some sort (electronic, etc)

Question 2

Which conflict can never be waived?

Answer 2

Representing parties on both sides of the same litigation

Question 3

What is a former client conflict?

Answer 3

Lawyer may not represent a client with adverse interests to a former client in the same or substantially related litigation without the former client’s consent

Question 4

When are matters “substantially related”?

Answer 4

If confidential info learned in the former representation would materially advance the new client’s position

Question 5

What is a prospective client conflict?

Answer 5

Lawyer who obtains info from a prospective client must not represent a client adverse to the PC if the info received would be significantly harmful to the PC

Question 6

How is a prospective client conflict waived?

Answer 6

Informed consent of initial PC and current client

Question 7

What is the former gov employee conflict?

Answer 7

Lawyer who previously worked for the government must not later represent a client in connection with a matter in which the lawyer participated PERSONALLY and SUBSTANTIALLY

Question 8

How is the former gov employee conflict waived?

Answer 8

The government consents

Question 9

Is the former gov employee conflict imputed to the lawyer’s firm?

Answer 9

No, if:

• Lawyer is screened from the matter
• Lawyer does not share in the fees
• Gov is notified in writing

Question 10

For the purposes of the former gov employee conflict, what constitutes a “matter”?

Answer 10

Specific facts with specific parties such that a “client” is identified; not general work

Question 11

What are the two exceptions to the rule that a lawyer may not acquire a proprietary interest in a cause of action?

Answer 11

1. Lien authorised by law to secure fees

2. Reasonable contingent fee

Question 12

What are the four requirements for entering into a business transaction with a client?

Answer 12

1. Deal is reasonable and fair to the client
2. Terms full disclosed to client in understandable writing
3. Client advised in writing that he should seek independent counsel and given opportunity to do so
4. Client consents in a SIGNED writing to the essential terms and an overview of the lawyer’s role

Question 13

What are the two areas where the conflict waiver must be SIGNED by the client?

Answer 13

1. Business transactions with clients

2. Aggregate settlements

Question 14

What two types of financial assistance from lawyer to client is okay?

Answer 14

1. Lawyer advances court costs and expenses of litigation

2. Lawyer representing indigent client may pay court costs and expenses of litigation outright

Question 15

What is the only instance in which a lawyer can draft a document for another which gives them something of value?

Answer 15

When the lawyer is related to the client

Question 16

What are the three requirements for a third party to pay a lawyer’s fee?

Answer 16

1. Client gives informed consent
2. TP doesn’t interfere with the lawyer-client relationship
3. Confidential information is not revealed to the TP

Question 17

Where a lawyer representing an organisation learns of harmful internal conduct, what are their two courses of action?

Answer 17

1. A lawyer MUST report the violation to a higher internal authority
2. If the higher authority fails to act, the lawyer MAY report the violation to a relevant external authority

Question 18

Where an organisation’s lawyer reports externally following a failure of internal authority to act, what is the scope of their ability?

Answer 18

Only to the extent the lawyer reasonably believes reporting is necessary to prevent substantial injury to the organisation