Conflicts of Interest

Question 1

Types of Conflicts

Answer 1

Lawyer-Client Conflict

Current Clients Conflict

Current and Former Clients Conflict

Current and Prospective Clients Conflict

Current Clients and Third Parties Conflicts

Question 2

Types of Lawyer-Client Conflicts

Answer 2

Opposing Lawyers Related

Sexual Relations

Lawyer as a Witness

Acquiring an Interest in Litigation

Financial Assistance to Client

Entering into Business Transactions with Client

Question 3

Lawyer-Client Conflict

Answer 3

Lawyer must not represent a client if the representation may be materially limited by the lawyer’s interest (personal interests, friendships, family relationships, membership on committees) UNLESS:

1. Lawyer reasonably believes can provide competent and diligent representation to the affected client
2. Representation is not prohibited by law
3. Affected client gives informed consent, confirmed in writing

Question 4

Lawyer Client Conflict: Opposing Lawyers Related

Answer 4

MR: Lawyer related (parent, child, sibling, spouse) to another lawyer may not represent a client in which the other lawyer is represneting another party UNLESS CLIENT GIVES INFORMED CONSENT

CA: Lawyer is not permitted to represent a client in a matter which the lawyer knows or reasonably should know other party’s lawyer…
*is a relative,
*lives with the lawyer, or
*has an intimate personal relationship with the lawyer
UNLESS client was informed in writing

Question 5

Lawyer Client Conflict: Sexual Relations

Answer 5

Prohibited unless sexual relationship existed before attorney-client relationship began

Question 6

Lawyer Client Conflict: Lawyer as a Witness

Answer 6

Lawyer is not permitted to act as an advocate at a trial in which the lawyer is likely to be a necessary witness UNLESS
(i) testimony relates to an uncontested issue; or
(ii) testimony relates to the nature and value of legal services rendered in the case; or

(iii) MR: disqualification of lawyer would bring substantial hardship to client
CA: Lawyer has obtained client’s informed written consent

Question 7

Lawyer Client Conflict: Acquiring an Interest in Litigation

Answer 7

Lawyer may not obtain a proprietary interest in the cause of action or subject matter of litigation in which he/she represents a client, unless:

(i) Lawyer acquires a lien by law to secure payment of a fee, OR
(ii) Lawyer contracts for reasonable contingency fee, so long as the case is not criminal or domestic relations

Question 8

Lawyer Client Conflict: Financial Assistance to Client

Answer 8

MR: Prohibits financial assistance for pending or planned litigation, except for advanced litigation costs (client is liable for such costs, unless indigent)

CA: Not permitted to directly or indirectly pay or agree to pay personal or business expenses of a prospective or existing client EXCEPT
*With client consent, pay expenses for third persons in litigations,
* Advance litigation costs, repayment contingent on outcome
*Lend money to client if client promises in writing to repay loan

Question 9

Lawyer Client Conflict: Entering into Business Transactions with a Client

Answer 9

Must not enter into a business transaction with a client or knowingly acquire adverse interest to the client, unless:
(i) Terms are fully disclosed in writing,
(ii) Terms are fair and reasonable,
(iii) Client understands the terms,
(iv) Client consents in writing,
(v) client encouraged to seek independent counsel and given opportunity to do so.

Question 10

Agreement to Limit Malpractice Recovery

Answer 10

CA: Prohibited from making an agreement prospectively limiting malpractice liability to a client

MR: Permitted if client is represented by another independent lawyer to make agreement

Question 11

Conflicting Interests between Current Clients

Answer 11

Must not represent a client

(i) if doing so would be directly adverse to interests of another current client or

(ii) there is significant risk that representation will be materially limited by lawyer’s responsibilities to current client

Question 12

Exceptions to Conflicting Interests between Current Clients

Answer 12

(i) Lawyer reasonably believes they will be able to provide competent and diligent representation to each affected client
(ii) Representation is not prohibited by law
(iii) Representation does not involve representation of parties on both sides of the same litigation or proceeding
(iv) MR: each affected client gives informed consent in writing
CA: same but also full disclosure of conflict

Question 13

Current and Former Client Conflict

Answer 13

After representing a client, must not later represent another person in the same or substantially similar matter if the interests are materially adverse unless:

ME: Former client gives informed consent in writing
CA: Former client gives informed written consent (full disclosure)

Substantially related matter: same transaction or dispute OR involves substantial risk that confidential factual information from prior representation would advance new client’s position

Question 14

Prospective Clients

Answer 14

Cannot represent client with materially adverse interest to those of a prospective client in a substantially related matter if the lawyer received

MR: information from the prospective client that could be significantly harmful
CA: material information from the prospective client that could be harmful

UNLESS
MR: informed consent in writing
CA: informed written consent

Question 15

Influences by Persons Other than the Client (Types)

Answer 15

Payment from a Third Party

Organization as Clients

Question 16

Influences by Persons Other than the Client: Payment from a Third Party

Answer 16

Must not accept payment from a third party for representation unless:
(i) client gives informed consent (MR) or informed written consent (CA)
(ii) No interference with lawyer’s judgment,
(iii) Lawyer-client confidentiality is preserved.

Question 17

Influences by Persons Other than the Client: Organization as Client

Answer 17

Lawyer representing organization owers duties of loyalty and confidentiality to organization, not individuals

Can represent individuals, as long as there is no conflict, but must make it clear at all times who lawyer is representing if interests are adverse

Question 18

Organizational Misconduct

Answer 18

Upon learning that actions of a person in organization will likely cause substantial harm, must proceed as reasonably necessary in best interest of organization

Question 19

Reporting Within Organization

Answer 19

Must report matter to higher authority in organization unless not in the best interest

CA: Must not reveal client confidential information

Question 20

Reporting Outside Organization

Answer 20

MR: May reveal information to outside authorities to extent necessary to prevent injury if:
(i) report to highest authority in org;
(ii) Authority refuses to act in a timely manner;
(iii) Misconduct is a clear violation of law;
(iv) Lawyer reasonably believes violation is reasonably certain to cause substantial injury to organization

CA: Do not allow any revealing confidential information to outside authorities unless Death or Substantial Harm