Conflicts of interest Flashcards
(24 cards)
Can the adverse party raise a conflic claim if your CL has waived it?
Yes, a conflic of interest can be raised by your adversary, even if your clients have waived. Lets them raise it as a reason to overturn a losing verdict.
When does a current conflic exist?
- Reperesentation is directly adveres
- there is a signifigant risk that representation of one CL will be materially limited by responsibilities to another
When may a lawyer represent a client even when there is a current conflict?
- The reasonably believe they can provide competent and diligent representation to each affected client,
- not prohibited by law
- representation doesn’t involve the assertion of a claim by one client against another client; AND
- each affected client gives informed consent, confirmed in writing.
When is there a signifigant risk of a material limitation?
The likelihood that a difference in interest will eventuate & if they do, whether it will materially interfere w/ the lawyer’s independent professional judgement.
Examples of relationshis that mean you have to stop the representation
- Opposite sides of the same case
- Representing a witness
- Noth sides of a negotiation
- Representing one company in a hostile takeover of another
- Suing a client on behalf of another in an unrelated case
Standard for liability of a violation fo COI violation
no Mens Rea requirement for a conflict, there is absolute liability and an attorney can violate these rules unintentionally through lack of awareness, or even a good faith belief that no conflict existed
5 Steps of a conflic analysis
- Identify current, former, & prospective client
- determin if a conflict exists
- is the conflic consentable? (If no then withdraw)
- consult w/ clients & obtain informed consent confirmed in writing from each affected client.
- Consider remedies if confict is not properly resolved
Whithin the realm of testing, when do conflicts often arise
When something changes
effectivness of a waiver
he effectiveness of a waiver depends on the extent to which the CL reasonably understands the material risks that the waiver entails
Business transactions w/ a client
1.8(a)
Cant enter into a buisness transaction or knwoingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client.
doesn’t apply for standard business practices
Exceptions to the buisness transaction prohibition
1.8(a)(1-3)
- transaction & terms are fair, reasonable, and fully disclosed in writing
- client is advised in writing about seeking outside council
- informed consent in writing to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction
When can a lawyer solicit a substantial gift from a client?
If they are related
This including written instruments like wills. There is no consent exception.
When can a lawyer negoteate about media rights?
After the conclusion of the representation
Can a lawyer advance court costs and expenses?
Yes, repayment may be contingent on the coutcome of the case.
Indigent CLs dont need to repay
When can a lawyer offer modest gifts of food, rent, transportation, medicine, & other basic living expenses to a CL?
When representing them pro bono through a non-profit, public interest org., or through a law school program.
When can a lawyer accept compensation from a 3rd party?
- CL gives informed consent
- no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; AND
- information relating to representation of a client is protected
Can lawyers make agreements limiting the lawyer’s liability to a client for malpractice?
No
When can a lawyer not represent someone in a matter in which a firm with which the lawyer formerly was associated had previously represented a client whos interests are adverse?
Only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(c).
if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.
When is screening possible?
- Confidentiality, not loyalty - not for current client conflicts (no current clients)
- New lawyer joins the firm 1.10(2)
- One attorney in firm receives disqualifying confidential information from prospective client. 1.18(d)(2). There is a requirement of additional reasonable measures to avoid exposure to more disqualifying information
- Government lawyer joins firm. 1.11(b)&(c)
What does an effective screen need?
- Timelyness: preferably when the new attorney joined the firm or when the firm knew or should have known of the conflict.
- Isolation: from paper and e-files (that involve the forbidden matter)
- Notification & enforcement within firm
- no fee split w/ screened lawyer
- Compliance: notice and certification to new lawyer’s former gov’t agency
If a person communicates to a lawyer specifically to disqualify them are they still a prospective client?
No
If info is communicated to a lawyer unilaterally, w/ no reasonable expectation of representation are they a prospective client?
No
Who must consent to allow a former gov’t laawyer to epresent a client in connection with a matter in which the lawyer participated personally and substantially
Only the appropriate government agency, in writing.
Do the rule 1.13 rules apply to the Gov’t too?
Organization as Client
Yes
