Conflict of Interests

Question 1

What is informed consent?

Answer 1

means that the client agrees to a proposed course of conduct after the lawyer has sufficiently explained the material risks and reasonable alternatives.

The client must be given sufficient information by the lawyer and not simply rely on the advice of the lawyer. There is no requirement that the client must consult with a second, independent lawyer to provide informed consent

Question 2

A lawyer must promptly inform a client of any

Answer 2

decision or circumstance that requires the client’s informed consent.

Question 3

A conflict of interest arises when there is a

Answer 3

Significant risk that the lawyer’s representation of the client will be materially and adversely affected by the lawyer’s own interests or the lawyer’s duties to another current client, a former client, or a third person

Question 4

The standard used to determine whether a conflict of interest is present is not

Answer 4

reasonable risk but rather substantial risk.

Question 5

A conflict may arise from a lawyer’s duties not just to

Answer 5

current and former clients but also to third persons, such as fiduciary duties arising from a lawyer’s service as a trustee.

Question 6

If an attorney mishandles a client conflict, she may be subject to

Answer 6

Disqualification as counsel, professional discipline, civil liability for legal malpractice.

criminal liability for legal malpractice not included

Question 7

Generally, when a lawyer is barred from taking on a matter due to a conflict of interest, the other lawyers in her firm

Answer 7

are also barred from taking on the matter, unless the conflict is uniquely personal to that lawyer.

Question 8

conflict is uniquely personal to that lawyer means?

Answer 8

or example, if the lawyer’s conflict of interest arose because of an improper personal relationship with the client, other lawyers in the firm would not have the conflict of interest imputed to them.

Question 9

Despite a concurrent conflict of interest, a lawyer may represent a client as long as the representation is not prohibited by law and

Answer 9

1) Each affected client gives informed consent,
2) the representation does not involve asserting a claim by one client against the other in the same litigation, AND
3) the lawyer believes he can competently and diligently represent both clients despite the conflict.

Question 10

a lawyer should not represent criminal co-defendants because

Answer 10

their interests are likely to be divergent, thus negatively affecting their Sixth Amendment right to effective assistance of counsel. This may be true even if the co-defendants agree to the representation. However, the Rules of Professional Conduct do NOT expressly prohibit the representation of co-defendants in a criminal case. Generally, co-defendants’ interests are divergent, not similar.

Question 11

IS there a conflict of interset? Sarah is an attorney who represents Defendant Daryl in a personal injury case. Daryl is also a named class member in a class action suit against John, and John is also Sarah’s client

Answer 11

Yes, because the person is “named”

Question 12

IS there a conflict of interset? Sarah is an attorney who represents both Daryl and John. In Daryl’s case, she is arguing that ABC Act is unconstitutional. In John’s case in a different circuit, she is arguing that ABC Act is constitutional

Answer 12

No conflict. Permissible.

Question 13

IS there a conflict of interset? Sarah is an attorney who represents Defendant Daryl in a wrongful death case. Daryl is also an unnamed class member in a class action suit against John, and John is also Sarah’s client

Answer 13

No conflict, because party is unnamed.

Question 14

If two clients in a litigation or nonlitigation matter are represented by the same lawyer, and a potential conflict between the two ripens into a present conflict, their lawyer is required to:

Answer 14

(i) analyze the facts to determine if she can effectively represent both clients,
(ii) disclose the potential conflict to both clients,
(iii) invite them to give her informed consent, and
(iv) consider whether a reasonable lawyer would advise these clients to consent.

The same rules for handling this type of conflict apply to both litigation and nonlitigation matters

Question 15

Note that the lawyer must withdraw from the joint representation if

Answer 15

a reasonable lawyer would have to advise either of the two clients not to consent. .

Question 16

The lawyer may continue to represent one consenting client, but only if the client who is dropped gives

Answer 16

informed consent to the continuation, confirmed in writing.

Question 17

In litigation between two people who were formerly joint clients of a single lawyer, who can claim the attorney-client privilege for their communications with that lawyer?

Answer 17

Neither of them

Question 18

When a lawyer is taking on a new matter, if the lawyer’s interests are likely to Materially limit; her ability to represent a client effectively, she must

Answer 18

she must not take on the matter unless she obtains informed consent, confirmed in writing, from her client

Question 19

Direct adversity exists when a lawyer

Answer 19

represents one client in a matter adverse to another current client, even where the lawyer represents the clients in unrelated matters. This is true in both litigation and transactional matters.

Question 20

A lawyer must never be on opposite sides of the

Answer 20

same litigation (or other proceeding pending before a tribunal

Question 21

If there is a conflict between current clients, a lawyer may undertake the representation if

Answer 21

she reasonably believes that she can competently and diligently represent each affected client despite the conflict, and each client gives informed consent, confirmed in writing. The clients’ signatures are not required.

Question 22

Even with client consent, a lawyer must not

Answer 22

assert a claim on behalf of one client against another client represented by that lawyer in the same litigation (or other proceeding before a tribunal). In contrast, if the lawyer represents the second client in unrelated matters only, the conflict may be waivable.

In other words, the lawyer can’t be on both sides of the same proceeding

Question 23

Lawyers within a firm are treated as

Answer 23

a single unit for conflicts purposes.

Question 24

In class action litigation, the unnamed members of a class ordinarily are

Answer 24

not regarded as clients for purposes of the “direct adversity” conflicts rule. Therefore, a lawyer can sue an unnamed class member in an unrelated matter without obtaining their consent.

Question 25

Generally, a lawyer may take

Answer 25

inconsistent legal positions in different tribunals at different times on behalf of different clients, and that on its own doesn’t create a conflict of interest. However, a conflict exists if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s representation of another client in a different case: for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.

Question 26

The rule for business transactions and adverse financial interests does not apply to:

Answer 26

(i) an ordinary fee agreement between a lawyer and client, or (ii) standard commercial transactions in which the lawyer buys goods or services that the client routinely markets to the public.

Example: If a lawyer takes out a standard home loan from a bank that is also a client, it would be considered a standard commercial transaction. The lawyer would have no advantage in this situation, so the usual requirements for business transactions don’t need to be met. The other choices are subject to the normal requirements.

Question 27

A lawyer must not enter into a business transaction with a client unless:

Answer 27

(i) the transaction and terms under which the lawyer acquires the interest are fair and reasonable to the client;

(ii) the terms are fully disclosed and transmitted in writingto the client in a manner that can be reasonably understood by the client;

(iii) the client is** advised in writing** that they should seek the advice of independent legal counsel on the transaction (if they don’t already have counsel in the transaction), and is given a** reasonable opportunity to do so**; and

(iv) the client gives informed consent in a signed writing.

Note: It’s not required that the client actually seek advice from independent counsel.

(Note that the rules regarding business transactions with clients don’t apply to ordinary fee agreements, or to standard commercial transactions for products or services that the client routinely markets to others.)

Question 28

A lawyer must not take a

Answer 28

proprietary interest in a cause of action or in the subject matter of litigation the lawyer is conducting for a client.

A lawyer may accept property, such as stocks, in lieu of money as long as the requirements for a business transaction are met.

Question 29

A lawyer must not solicit a

Answer 29

substantial gift from a client or prepare an instrument giving the lawyer, or the lawyer’s relative, any substantial gift from a client except when the client is related to the donee

Question 30

The conflicts rule for gifts from clients doesn’t prohibit a lawyer from

Answer 30

seeking to have herself or her colleague named as executor of an estate or counsel to the executor or to some other fee-paying position.

There may be a general conflict, though, if the lawyer’s interest in obtaining the appointment will materially limit the lawyer’s judgment in advising the client concerning the choice of an executor or other fiduciary.

Question 31

A lawyer must not provide financial assistance to a client in connection

Answer 31

with pending or contemplated litigation.

This includes gifts, loans, and even guaranteeing a third party’s loan to the client.

There are three exceptions to this rule:

First, a lawyer may advance court costs and other litigation expenses on any client’s behalf, and repayment may be contingent on the outcome of the case. Thus, it would be proper to advance a non-indigent client’s court reporter fees and forgive repayment if the client loses.

Second, a lawyer may simply pay the court costs and litigation expenses for an indigent client, without any provision for repayment, so it would be proper to pay an indigent client’s expert witness fees outright.

Third, a lawyer who is representing an indigent client pro bono can provide the client with modest gifts for basic living expenses.

Question 32

If the client is not indigent, the lawyer may only

Answer 32

advance the expenses (although, as stated, repayment may be contingent on the outcome). Thus, it would be improper to pay a non-indigent client’s court costs outright.

Question 33

A lawyer must not acquire literary or

Answer 33

media rights to a story based in substantial part on information relating to the lawyer’s representation of a client(e.g., a lawyer representing a client in a pending murder trial must not acquire rights to a book about the case).

However, a lawyer may acquire these rights after the client’s legal matter is entirely completed, appeals and all. Furthermore, the rule doesn’t apply to literary or media rights that aren’t substantially based on information relating to the representation.

Question 34

A lawyer may accept compensation from a third person for representing a client, as long as:

Answer 34

(i) the client gives informed consent,

(ii) the third person doesn’t interfere with the lawyer’s independence or the representation of the client, and

(iii) the arrangement doesn’t compromise the client’s confidential information.

Question 35

A lawyer must not have a sexual relationship with a client; the sole exception is when

Answer 35

the lawyer and client had a consensual sexual relationship before the lawyer-client relationship began.

Question 36

Business transactions with clients and aggregate settlement agreements require

Answer 36

informed consent in a writing that the client signs.

Question 37

A lawyer must not represent one client whose interests are materially adverse to those of a former client in a matter that is substantially related to a matter in which the lawyer represented the former client, unless

Answer 37

the former client gives informed consent, confirmed in writing.

However, if a lawyer routinely handled a type of problem for a former client, the lawyer may later oppose that former client in a factually distinct problem of the same general type.

Question 38

Matters are “substantially related” if:

Answer 38

(i) they involve the same transaction or legal dispute, or

(ii) there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the new client’s position.

Question 39

A lawyer must not represent a client if the representation will be directly adverse to another current client, unless

Answer 39

the lawyer reasonably believes he can competently and diligently represent them both, and both clients provide informed consent, confirmed in writing.

Question 40

A lawyer’s duties may extend not only to the clients he represented personally, but also to

Answer 40

clients of the lawyer’s former firm.

Question 41

A lawyer whose firm formerly represented a client in a matter and who acquired protected confidential information or information pertaining to the representation may not

Answer 41

thereafter represent another person in the same or a substantially related matter if that person’s interests are materially adverse to those of the former client, unless the former client gives informed consent, confirmed in writing. However, there is no conflict if the lawyer didn’t not acquire confidential information while at the former firm.

Question 42

If a lawyer who is disqualified from representing a client joins a new firm, the new firm may be disqualified as well

Answer 42

unless the lawyer is properly screened.

Question 43

Proper screening means

Answer 43

the disqualified lawyer doesn’t work on the case, discuss it with those who do, or have access to case files. It also requires that the disqualified lawyer doesn’t share fees from the matter, and the former client is given notice (along with periodic certifications of compliance with the screening procedures). Alternatively, the former client can give informed consent, confirmed in writing.

Question 44

A lawyer’s former firm is prohibited from representing a person with interests materially adverse to those of a client of the formerly associated lawyer if:

Answer 44

(i) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(ii) a lawyer remaining in the firm has material confidential information about the matter.

The conflict can be waived with informed consent, confirmed in writing, from the firm’s former client.

Question 45

A lawyer who obtains confidential information during a consultation with a prospective client must not

Answer 45

later represent a different person in the same or a substantially related matter if the confidential information could significantly harm the prospective client in the matter, unless the prospective client gives informed consent, confirmed in writing.

Question 46

Except when expressly permitted by law, a lawyer who leaves government service and enters private practice must not

Answer 46

represent a private client in a matter in which the lawyer participated personally and substantially while in government service, unless the government agency gives informed consent, confirmed in writing.

Question 47

As used in the government conflict rules, “matter” has a narrow, technical meaning. It does not mean

Answer 47

“general topic” or “broad subject area.” It means a specific set of facts involving some specific parties. It’s defined more fully as, “any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties” (plus anything else that’s covered under the conflict of interest rules of the government agency in question).

Question 48

Drafting a regulation that applies to the public or a segment of the public doesn’t qualify as

Answer 48

a matter

Question 49

The term “personally and substantially” doesn’t include

Answer 49

work that is trifling, and it doesn’t include mere supervisory responsibility.

Question 50

Drafting a motion for the case qualifies

Answer 50

as personal and substantial involvement. Furthermore, this conflict rule applies even where the lawyer is not taking a position adverse to the government agency.

Question 51

Except when expressly permitted by law, a government lawyer who receives confidential government information about a person must

Answer 51

not later represent a private client whose interests are adverse to that person, when the information could be used to the material disadvantage of that person.

The rule covers only information actually received by the government lawyer, not information that could be fictionally imputed to the lawyer.

Question 52

“Confidential government information” means

Answer 52

information that is gained under government authority and which the government is prohibited from revealing, or has a privilege not to reveal, and which is not otherwise available to the public. If information is available to the public through a channel like the Freedom of Information Act, it isn’t considered confidential government information.

Question 53

The ordinary conflict rules apply to a lawyer who enters government service after private practice or other nongovernmental work. If a lawyer worked personally and substantially on a matter in private practice or other nongovernmental employment, the lawyer must .

Answer 53

not work on that same matter when he later enters government service, unless the government agency gives informed consent, confirmed in writing

Question 54

A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as a judge or other adjudicative officer (e.g., a referee or special master) or as a law clerk to such person, or as an arbitrator, mediator, or other third-party neutral, unless

Answer 54

all parties to the proceedings give informed consent, confirmed in writing.

However, an arbitrator who is selected as a partisan of a party in a multi-member arbitration panel may subsequently represent that party. This is because a partisan arbitrator is not expected to be neutral.

Question 55

Generally, a lawyer cannot prepare a document giving a substantial gift to the lawyer or a member of the lawyer’s family, unless

Answer 55

the lawyer or the recipient is related to the client.

Question 56

A lawyer may pay court costs and fees for an indigent client without

Answer 56

any requirement for repayment, regardless of the outcome of the case.

Question 57

When can a lawyer accept media rights in exchange for representing a client.

Answer 57

Never.

Question 58

If a law firm has a conflict of interest due to representation of a former client, the firm must

Answer 58

screen the lawyers who represented the former client from working on the new case and must inform the former client of the new representation and the screening process.

The firm need not to obtain consent to represent the bank.

Question 59

A lawyer who wishes to undertake representation that is directly adverse to another client must either

Answer 59

Obtain both of the clients’ informed consent or withdraw from the representation

Question 60

An attorney may not represent a client if either

Answer 60

(1) the representation of that client will be directly adverse to another client, past or current, or

(2) there is a significant risk that the representation of one client will be materially limited by the attorney’s responsibilities to another client, past or current.

Question 61

A retained lawyer may not give or lend a client any financial assistance in contemplated or pending litigation; however, the lawyer may

Answer 61

advance court costs or litigation expenses.

Question 62

An attorney who has formerly served as a public officer or employee of the government may not represent a client in connection with

Answer 62

the same matter in which the lawyer participated personally and substantially as a public officer or employee.

Question 63

Unless the client gives informed consent or some other exception to the duty of confidentiality applies, a lawyer may be disciplined for

Answer 63

using the confidential information of a current, former, or prospective client to that client’s disadvantage.

Question 64

a lawyer must NOT __________ from a client who is not the lawyer’s relative.

Answer 64

Solicit a substantial gift.

However, the ABA Rules do not prohibit a lawyer from accepting even a substantial gift, although the gift may be voidable for undue influence.

Note that the same rules apply to a substantial gift from a client to the lawyer’s relative. In this rule, “relative” includes a spouse, child, parent, grandparent, grandchild, and other persons with whom the lawyer maintains a close, familial relationship.

Question 65

A lawyer must not assist an indigent client with their living expenses, unless

Answer 65

representing the indigent client pro bono

Question 66

A lawyer may pay an indigent client’s court costs and litigation expenses outright?

Answer 66

YES

Question 67

A lawyer may acquire literary or media rights to her client’s life story at any time, provided that her client’s story is not based substantially on information relating to the representation. If the story is based substantially on information relating to the representation, the lawyer must

Answer 67

wait until the client’s legal matter is entirely completed (including appeals).

Question 68

When a lawyer represents multiple parties and an aggregate settlement is offered, the lawyer cannot

Answer 68

cannot be involved in the negotiations for same unless he makes sure that his clients have come to an agreement among themselves, discloses to each client the terms of the settlement, and each client gives informed consent in writing.

Question 69

When an insurance company hires an attorney to defend the policyholder in suits arising out of events covered by the policy, some states hold that

Answer 69

The policyholder is the attorney’s sole client; the policyholder and the insurance company are joint clients

Question 70

Insurance Company C hires attorney A to defend policyholder D in a car accident case brought by P. The liability limit in D’s policy is $500,000, and P offers to settle for $450,000. D wants to settle because he would have no out of pocket costs, but C wants to go to trial. In this situation, A must:

Answer 70

Disclose the conflict to D and invite D to obtain independent counsel (at C’s expense) to advise D on the settlement issue

Question 71

When a former client has imparted confidential information to a lawyer, the lawyer may not later oppose the former client in any matter in which the confidential information would be relevant, unless

Answer 71

the former client gives informed consent, confirmed in writing.

It is not true that the lawyer may oppose the former client if she reasonably believes she can refrain from using the information against the client.

Question 72

When a former client has imparted confidential information to a lawyer, and that information later becomespublic knowledge (through no fault of the lawyer), the lawyer

Answer 72

May use the formerly confidential information to the former client’s disadvantage

the former client’s consent is no longer needed

Question 73

A lawyer whose former firm represented a client in a matter and who acquired information pertaining to the representation may not thereafter represent another person in the same matter if that person’s interests are

Answer 73

Materially adverse to those of the former client (unless the former client gives informed consent, confirmed in writing)

Question 74

If a lawyer who is disqualified from representing a client joins a new firm, the new firm may be disqualified as well unless

Answer 74

the lawyer is properly screened and does not share fees from the matter, and the former client is given notice.

Thus, another lawyer at JKM law firm can now represent a new client, R, in the substantially related matter of R v. C, but only if L is properly screened, does not share fees from the matter, and C is given notice. There is no requirement that C give informed consent, confirmed in writing. C just needs to be notified

Question 75

Except when expressly permitted by law, a lawyer who leaves government service and enters private practice must not represent a private client in

Answer 75

A matter in which the lawyer participated personally and substantially while in government service, unless the government agency gives informed consent, confirmed in writing

Question 76

Except when expressly permitted by law, a government lawyer who receives confidential government information about a person

Answer 76

May not later represent a private client whose interests are adverse to that person, when the information could be used to the material disadvantage of that person

Question 77

Lawyer Larry currently works for the New York City Landmarks Commission. He represents the Commission, a municipal entity, in landmark-related disputes, including a number of disputes with Blackacre Real Estate Company. Larry oversaw all aspects of the litigation against Blackacre and personally appeared in court on behalf the Commission. Impressed with Larry’s skills, Blackacre approached Larry to join the company as general counsel and Larry accepted Blackacre’s offer. Is Larry subject to discipline?

Answer 77

Yes, because Larry negotiated private employment with an entity that is involved as a party in a matter in which Larry is participating personally and substantially

Note that there is a special exception for judges’ and adjudicative officers’ law clerks who are seeking work after their clerkships end.

Question 78

A lawyer’s conflict of interest will not be imputed to the rest of her firm if the conflict relates to duties owed to

Answer 78

Former clients from a prior firm; and provided that the disqualified lawyer is timely screened from participation and prohibited from receiving any part of the fee from that matter

Question 79

A client may consent to conflicts that may arise in the future if

Answer 79

it is reasonable to do so and if the client understands the particular conflicts that may arise

Question 80

If a reasonable lawyer looking at the facts would conclude that the client’s interests would not be adequately protected in light of the conflict, then

Answer 80

the conflict is unconsentable

Question 81

An electronic record of consent to a conflict (e.g., via e-mail) sometimes can satisfy

Answer 81

the requirement that the consent be in writing

Question 82

To provide valid consent, the client must

Answer 82

understand the particular conflicts that may arise.

Question 83

If a lawyer is hired by a policyholder’s insurance company to defend the policyholder, and the lawyer is offered a settlement that the policyholder objects to, the lawyer

Answer 83

Must not proceed without first giving the policyholder a chance to reject the insurance company’s representation and to assume responsibility for her own defense at her own expense

Question 84

If a lawyer joins a new firm and is screened from a matter due to a conflict of interest stemming from the representation of a former client, she may be “apportioned no part of the fee therefrom,” which means she may

Answer 84

receive a regular salary or partnership share set by prior independent agreement, but her compensation must not be directly related to the matter in which the lawyer is disqualified.

Question 85

Is the the drafting of general regulations a “matter” that involves specific parties?

Answer 85

No.

Question 86

if an attorney uses the confidential information of a current, former, or prospective client to his own pecuniary gain, he can be subject to

Answer 86

civil liability even if the client is not disadvantaged by the attorney’s use of the information.

Disciplinary action is only applicable where the client is disadvantaged by the attorney’s use of the information.