Conflicts Flashcards
(16 cards)
Media Rights
A lawyer must not acquire literary or 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.
Former Third Party Neutral
A lawyer shall not represent anyone in connection with a matter in which lawyer participated personally and substantially as a judge or adjudicative officer or law clerk or arbitrator mediator or other third-party neutral, UNLESS all parties to proceeding give ICCW
Conflict imputed to firm but cured by screening, notice to all parties, and notice to affected tribunal
Conflict in Negotiations
A lawyer shall not negotiate for employment with any person who is involved in a matter in which lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator mediator
Exception for law clerks who give advance notice to judge
Prospective Clients
No adverse representation in same or substantially related matter if prospective client’s confidential information would be significantly harmful to prospective client
Representation barred unless:
PC consents OR
Adequate screening of lawyer who learned PC’s info + Written notice given to PC + Lawyers who learned PC’s info do not share in fees from matter adverse to PC
Serving as third party neutral
A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as an arbitrator. [ABA Model Rule 1.12(a)] (A
Joint Representation
A lawyer may represent two clients in civil litigation if their interests are potentially in conflict, provided that the lawyer: (1) reasonably believes he can represent both clients effectively; (2) discloses the potential conflict and explains how it can harm each client; and (3) obtains informed consent, confirmed in writing, from each client.
Gifts from Clients
A lawyer cannot solicit substantial gifts from client unless they are related!!! Example:
Cannot do ur friend’s will if they are leaving you anything. And anyone else at the firm cant do it either. → UNLESS you are related to them
Waiving Conflict of Interest
Reasonable belief can represent each competently and diligently
Informed consent, confirmed in writing from each client
Can be oral informed consent + email memorializing client’s consent after
Being on opposite sides of the same litigation → unavailable. Allowed if transactional!
Even with client consent, a lawyer litigating a matter for a client must not assert a claim against another client whom the lawyer represents in the same litigation
Lawyers within a firm are treated as a single unit for conflict purposes.
Financial Help to Clients
No financial interest to clients. No helping them with living expenses unless pro bono representation!!
Exceptions:
May advance court costs and expenses
May pay court costs and expenses for indigent client
When representing indigent client pro bono, may provide client with modest gifts for basic living expenses.
Opposing Former Clients
Cannot represent new client against former client if matter same or substantially related to former clients matter. UNLESS former client consents.
Substantially related: same transaction or legal dispute. Substantial risk confidential information would materially advance client’s position
Former Firm’s Client
Cannot work on opposite side if acquired confidential information at former firm UNLESS former client consents
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: (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.
Screening Lawyer with Former Client Conflict
No sharing of fees
No access to case files
Notice to former clients with disclosures about procedures
Updates to former clients
Government Conflicts; Government Employees → Private Practice:
Except when expressly permitted by law, a lawyer who leaves government service and enters private practice must not 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. As used in the government conflict rules, “matter” has a narrow, technical meaning. It does not mean “general topic” or “broad subject area.” It means a specific set of facts involving some specific parties
Drafting a piece of legislation is not regarded as a “matter” for purposes of the legal ethics rules on former government employees.
Private Practice → Government work (including as judge or neutral)
Cannot take part in any matter personally and substantially involved in while private practice UNLESS Government agency or all parties consents.
The ordinary conflict rules apply to a lawyer who enters government service
Conflict imputed to firm BUT cured by:
Screening
Notice to all parties
Reporting to tribunal
Representing Organizations
When an organization is the lawyer’s client, the lawyer owes a duty of loyalty to the organization. When the interests of the organization and its constituents conflict, the lawyer should remind the person that the lawyer represents the organization and not the person. It would be appropriate for the lawyer to remind the person that communications between them may not be protected by the attorney-client privilege, and that the person may want to obtain independent counsel.
Business Relationship with Client
A lawyer may enter into a business relationship with a client, provided certain safeguards, such as an opportunity to consult with independent counsel, are used. [ABA Model Rule 1.8(a)]
Transaction must be fair and reasonable to client
Lawyer must disclose all terms to client in WRITING & IN WAY CLIENT UNDERSTANDS
Lawyer must advise client in writing to get independent counsel
Client must give informed consent in signed writing
Does NOT apply to: (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. 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.
