Conflicts Flashcards
(11 cards)
Duty of Loyalty
When you agree to serve a client, you agree not to do anything to harm the client, or do anything that will distract you from serving the client’s best interest. Have to treat the client as if they are your only client
Current Client Conflict - Directly Adverse
(1) Representing opposing sides in the same litigation
- never consentable
(2) Representing opposing sides in the same transaction
- usually not consentable - but could be if both sides come to the lawyer with the details already worked out
(3) Opposing a current client in unrelated litigation
- consentable
(4) Opposing a client in an unrelated transaction
- consentable
Current Client Conflict - Materially Limiting Types
(1) Allied Parties
(2) Indirect
(3) Positional
(4) Lawyer’s own interests
Multiple Representation of Allied Parties
It is always a consentable conflict to represent:
- co-defendants in the litigation
- co-plaintiffs in litigation
- Partners in business or potential business
cmt. 23 to rule 1.7
- the potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant
Indirect Current Client Conflicts
Conflict that arises when a lawyer represents different clients in unrelated matters and one matter MAY adversely affect the other matter. Although the clients are not directly attacking/opposing each other, one client either:
- wants something that would or could harm the other client; or
- opposes something that would or could help the other client
Positional Current Client Conflicts
Representation should be avoided if there is a significant risk that a lawyer’s action on behalf of one client will create a precedent likely to seriously weaken the position taken on behalf of the other client
Conflicts with Lawyer’s Own Interests
Rules generally prohibit a lawyer from accepting a representation that actually or potentially conflicts with the lawyer’s own interests
Former Client Conflicts - 1.9(a) Substantial Relationship Test
The matters involved the same transaction or legal dispute OR there otherwise is a substantial risk that confidential factual information, as would have normally been obtained in the prior representation, would materially advance the client’s position in the subsequent matter
Former Client Presumptions
(1) If you personally represented a client in a substantially related matter (1.9(a)), courts will presume that you obtained confidential information relevant and material to the current matter
- generally an irrefutable presumption
(2) If your former firm represented the former client in a substantially related matter, courts generally presume that you acquired relevant confidential information
- this presumption is rebuttable - have to show that you did not have access to the former client’s confidences
Firewall Requirements
(1) Restrictions on the disqualified lawyer - can’t discuss the matter with anyone at the firm
(2) Restrictions on other lawyers
(3) Firm Implementation measures
- firms should create a memorandum to all attys advising them not to discuss the former or present case with the disqualified atty
- the firm should mark the files of the matter inaccessible to the disqualified atty, either by putting them in a special place or by making them subject to a sign-out system
Timing:
- have to implement these measures before the new attorney arrives at the firm - too late if you wait for opposing side to bring disqualification motion
- FW can never be used to correct a current client conflict
- only used to deal with former client conflicts
Insurance Defense
Insured’s Duties:
- pay premiums and give notice to insurance company if sued
- cooperate in the defense of the matter with DC
Insurance Company:
- pay fees to defense counsel
- defend and indemnify the insured
Defense Counsel:
- defend interests of the insured
- keep insurance company informed
