Conflicts Of Interest

Question 1

True or False: a lawyer generally cannot represent a client if representation would involve a concurrent conflict of interest

Answer 1

True. Unless there is informed consent, a lawyer cannot undertake a representation that involves a conflict of interest

Question 2

When does a concurrent conflict of interest occur?

Answer 2

Representation of one client will be directly adverse to another
Or
Significant risk that representation of one or more clients will be materially limited by responsibilities to another client, a former, or a third person or personal interest

Question 3

What is required for an attorney to undertake a representation containing a conflict?

Answer 3

1) lawyer reasonably believes able to provide competent and diligent representation to each client
2) representation not prohibited by law
3) does not involve assertion of a claim by one client against another in the same litigation or other proceeding before a tribunal
4) each affected client gives informed consent, confirmed in writing

Question 4

In a more simple way, what is needed for a representation containing a conflict?

Answer 4

Lawyer reasonably believes can provide competent, diligent representation

Not prohibited by law

Clients aren’t suing each other

Have informed consent in writing

Question 5

What steps should be taken in a conflicts problem?

Answer 5

1) identify client or clients
2) is there a conflict?
3) decide if representation is consentable
4) obtain informed consent

Question 6

What if a conflict exists before representation?
What if its discovered only after representation has commenced?

Answer 6

Ordinarily decline representation
Ordinarily withdraw

Question 7

True or False: Simultaneous representation of client’s in unrelated matters whose interest are only economically adverse is permissible even absent informed consent

Answer 7

True

Question 8

Do conflicts that arise in transactional matters (buyer and seller) require informed consent?

Answer 8

Yes

Question 9

Can a conflict exist even lacking direct adverseness?
It it can, under what circumstances?

Answer 9

Yes. If there is a significant risk ability to consider, recommend, or carry out an appropriate course of action will be impaired. Critical question is likelihood that difference will arise and if it will materially interfere with independent judgement

Question 10

True or False: Lawyers may be paid by individuals other than the client

Answer 10

True. Client must be informed and consent to it and it must not compromise the duty of loyalty or independent judgement.

Question 11

The limited exception to representation of directly adverse parties is that a lawyer can represent when

Answer 11

It is mediation, because that is not “a proceeding before a tribunal” as described in the rule

Question 12

Informed consent

Answer 12

Each affected client is aware of relevant circumstances and material and reasonably foreseeable ways conflict could have adverse effects on interests

Question 13

True or False: a lawyer can have a client consent to future conflicts

Answer 13

True. However, the explanation of the risks must be detailed and comprehensive: vague warnings won’t cut it

Question 14

What is the difference between a valid consent to future conflicts and one that will not be upheld?

Answer 14

A valid consent is one in which the client reasonably understands the material risks, is comprehensive in explaining the issues that might arise and explains foreseeable consequences. Consent that is general and open ended likely won’t be upheld.

Note: a client who is an experienced user of legal services will be more likely to have a valid consent

Question 15

Ordinarily, representation of co-defendants in a criminal trial . . .

Answer 15

Should not be undertaken

Question 16

What are the categories of client conflicts?

Answer 16

1) concurrent
2) former
3) personal
4) prospective/3rd party

Question 17

True or False: the directly adverse conflict does not apply if the representation is in a wholly unrelated matter

Answer 17

False

Question 18

What does it mean for a representation to be materially limited

Answer 18

Significant risk that lawyer’s ability to consider, recommend, or carry out an appropriate course for action will be limited as a result of other interests

Question 19

What are the two situations in which representation is never permissible?

Answer 19

Opposing parties in same litigation

Common clients where one client seeks to avoid disclosure to others

Question 20

True or False: consent can always be revoked by the client

Answer 20

True

Question 21

Can a lawyer, generally, enter into a business transaction with a client?

Answer 21

No

Question 22

In what situation may a lawyer enter into a business transaction with a client

Answer 22

Transaction and terms are fair and reasonable to client and are fully disclosed and transmitted in writing

Client is advised in writing of why they should seek independent legal counsel

Informed consent in writing and signed, to the essential terms of the transaction

Question 23

A lawyer can enter into a business transaction with a client without the song and dance in what situations?

Answer 23

Client is independently represented
Standard commercial transaction for products or services generally marketed to others

Question 24

Solicitation of gifts from client

Answer 24

Not permissible

Question 25

Can a lawyer use information relating to representation of a client to the client’s disadvantage?

Answer 25

Yes, if they have informed consent. May also use freely if doesn’t disadvantage client

Question 26

Rule for literary rights

Answer 26

Before conclusion of representation, cannot make or negotiate any literary or media rights for portrayal or account of information RELATED TO THE REPRESENTATION

Question 27

Under what circumstances may a lawyer provide financial assistance to a client?

Answer 27

1) advance of fees/costs of litigation 2) payment of fees to indigent client 3) modest gifts for food, rent, transit for indigent client IMPORTANT: lawyer may not ever be paid back for such gifts, may not advertise or publicize a willingness to provide these gifts, nor promise or imply prior to retention availability of gifts

Question 28

Aggregate Settlements

Answer 28

If representing two or more clients, cannot settle claims unless informed consent in writing from each client

Question 29

When can a lawyer limit claims for malpractice?

Answer 29

Client is independently represented when making agreement Or Advised in writing they should seek counsel and given the opportunity to find

Question 30

Can a lawyer secure a proprietary interest in the cause of action or subject matter of the representation?

Answer 30

No. May quire a lien to secure expenses/fee or contract for reasonable contingent fee

Question 31

Former client conflicts

Answer 31

If formerly represented a client, cannot represent someone in the same or substantially related matter in which person’s interests are materially adverse to interests of former client. Can get informed consent

Question 32

How do you know when a matter is substantially related?

Answer 32

Involve the same transaction or otherwise a substantial risk that confidential factual information obtained in prior rep would materially advance client’s position in subsequent matter.

Question 33

True or False: to assert a conflict, a former client must reveal confidential info

Answer 33

False. In fact, they have to reveal nothing merely allege a conflict

Question 34

True or False: if information is generally known, you may use it even to the disadvantage of a former client

Answer 34

True. Be careful, though. Generally known is a loose standard

Question 35

Former firm conflicts

Answer 35

Cannot knowingly represent someone in same or substantially related matter if a firm previously associated with represented a client 1) with interests materially adverse to that person or 2) the lawyer obtained confidential information material to matter Can get informed consent in writing

Question 36

Prospective clients

Answer 36

Consults with lawyer. Lawyer cannot reveal information learned. Cannot represent someone with materially adverse interests if same or substantially related AND RECEIVED INFORMATION THAT COULD SIGNIFICANTLY HARM THE PERSON IN THAT MATTER

Question 37

What does it mean to be substantially related?

Answer 37

Evidence supporting rational conclusion that information material to case of former representation is material to current case

Question 38

True or False: the rule of prospective clients does not apply when someone meets with a lawyer for the purpose of disqualifying them in a matter

Answer 38

True

Question 39

Imputation of conflict

Answer 39

No lawyer shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so

Question 40

True or False: the prohibition on a firm applies even if the conflict arises from a personal interest of the disqualified lawyer

Answer 40

False. If it is merely a personal interest, that lawyer alone can be disqualified and firm may represent so long as there is not a significant risk of materially limiting the representation of the remaining lawyers

Question 41

A firm may represent a client even if a lawyer has a conflict due to an association with a prior firm when

Answer 41

1) lawyer was timely screened and gets no fee 2) written notice promptly given to affected client 3) certifications of compliance with rules and screening procedures provided to former client

Question 42

A lawyer who has been screened out may still

Answer 42

Receive a salary or partnership share, they just cannot be directly compensated for the case

Question 43

True or False: a firm is prevented from representing a client if a non-lawyer working for the firm could not be involved

Answer 43

False. So long as that person does not personally participate, the rule does not apply

Question 44

Effect of lawyer who created conflict leaving the firm

Answer 44

May represented person with materially adverse interest to client represented by that lawyer unless 1) matter is substantially related and 2) lawyers in the firm have access to confidential information related to matter