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Flashcards in Conflicts of Interest Deck (42)
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1

When is a lawyer prohibited from representing a client?

  1. The representation would violate the Rules or other law; or
  2. The lawyer’s physical or mental condition would materially impair the lawyer’s ability to represent the client.

Rule 1.2(b)

2

Can a lawyer take inconsistent legal positions in different tribunals at different times on behalf of different clients?

Generally yes. But, a conflict of interest exists if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case.

Rule 1.7, comment 24

3

Can a lawyer enter into a business transaction with a client, or knowingly acquire a possessory interest adverse to the client?

No, unless:

  1. The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted clearly in writing;
  2. The client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
  3. The client gives written informed consent 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.

Rule 1.8(a)

4

Can a lawyer use confidential information obtained from a client to benefit the lawyer or third party?

Yes, unless the information disadvantages the client, in which case the client must give informed consent.

Rule 1.8, comment 5

5

If a lawyer is representing two or more clients, does the lawyer need to disclose each individual's settlement amount?

Yes, the lawyer must disclose all material terms of the settlement, including what each client will receive, and get written informed consent from each client.

Rule 1.8(g)

6

Can a lawyer have a sexual relationship with a client?

No, unless a consensual relationship existed prior to the lawyer-client relationship.

Rule 1.8(j)

7

When the lawyer is representing a corporation, does the prohibition on sexual contact apply? (i.e. Is a lawyer prohibited from having sexual relations with employees of an organization they are representing?)

Prohibition only applies to those who supervise, direct or regularly consult with the lawyer concerning the organization's legal matters.

Rule 1.8, comment 19

8

Can an attorney solicit or prepare a will that gives a substantial gift to the attorney?

No, unless the client is someone with whom the lawyer maintains a close, familial relationship.

Rule 1.8(c)

9

Can lawyers solicit substantial gifts from clients?

No, but they can receive simple gifts (presents given at a holiday or as a token of appreciation) as long as they meet the general standards of fairness.

Rule 1.8, comment 6

10

Can a lawyer acquire literary or media rights for a pending representation?

No because it creates a conflict between the interests of the client and the personal interests of the lawyer.

Rule 1.8, comment 9

⚠️ Note: The lawyer can, however, represent the client in a transaction concerning literary property and have the lawyer's fee consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and paragraphs 1.8(a) and (i).

11

What is the lawyer required to do if opposing counsel is a close relative?

Withdraw from the case unless the client gives informed consent.

Rule 1.7, comment 11

12

Can a lawyer represent two parties in the same litigation (i.e. on the opposite side of the "v") if they obtain informed consent?

No, a lawyer may not represent opposing parties in the same litigation, regardless of the clients’ consent.

Rule 1.7, comment 23

13

When does a concurrent conflict of interest exist?

If:

  1. The representation of one client will be directly adverse to another client; or
  2. There is a significant risk that the representation will be materially limited by the lawyer's personal interests or responsibilities to another client/third party

Rule 1.7(a)

14

When can a lawyer still represent a client if a concurrent conflict of interest exists?

If:

  1. The lawyer reasonably believes that they will be able to provide competent and diligent representation to each affected client; 
  2. The representation is not prohibited by law;
  3. The representation does not involve two clients directly adverse to one another in the same proceeding; and
  4. Each affected client gives written informed consent

Rule 1.7(b)

15

What must the client be aware of to give proper informed consent?

  1. The relevant circumstances and material;
  2. The reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client.

See Rule 1.0(e) (informed consent)

16

When there are multiple clients being represented in a single matter, what information must be included to obtain informed consent?

The implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved.

Rule 1.7, comments 30 and 31

17

What type of writing does informed consent require?

Either a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent.

Rule 1.0(b)

18

Does simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation constitute a conflict of interest?

Generally no, and as such, client informed consent is not needed.

19

Can a client revoke their consent for a waiver of conflict at any time?

20

Can a lawyer represent multiple defendants in a criminal case if they obtain informed consent?

No, the potential for conflict with multiple criminal defendants is so grave that the lawyer must decline representing both.

Rule 1.7, comment 23.

⚠️ Note: Common representation of persons having similar interests in civil litigation is proper if Rule 1.7(b) is met.

21

Who is considered a prospective client?

Those who consult with a lawyer about the possibility of forming a client-lawyer relationship.

⚠️ Note: A person is not a perspective client if they communicate unilaterally to the lawyer without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship.

Rule 1.18, comment 2

22

Can a lawyer reveal information learned from a prospective client?

No, even if no lawyer-client relationship ensues except as permitted by Rule 1.9.

Rule 1.18(b)

23

Can a lawyer represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter?

If the lawyer received information that could be significantly harmful to the client, then no, unless:

  1. Both the affected and the prospective client give written informed consent; or
  2. The lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
    1. The disqualified lawyer is timely screened and apportioned no part of the fee; and
    2. The prospective client is promptly given written notice.

Rule 1.18(c)

24

Can a lawyer require a prospective client to agree that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter?

Yes, via written informed consent. Rule 1.18, comment 5.

25

Can lawyer who has formerly represented a client in a matter represent another person in the same or a substantially related matter afterwards?

Yes, as long as the person's interests are not materially adverse to the former client's interests.

If the interests are adverse, then the former client must consent in writing after consultation.

Rule 1.9(a).

26

Can a lawyer represent a client in a substantially similar matter in which the lawyer's former firm represented a client with adverse material interests?

No, unless the former client gives written informed consent.

Rule 1.9(b)(2)

27

Can a lawyer knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client about whom the lawyer had acquired privileged information?

No, unless the former client gives written informed consent.

Rule 1.9(b)(2).

28

Can a lawyer whose former or present firm formerly represented a client reveal information relating to the representation of the former client?

No, unless the Rules would allow it or the information is generally known.

Rule 1.9(c)

29

Can a third party pay for another's legal costs?

Yes, as long as:

  1. The client gives informed consent;
  2. There is no interference with the lawyer's professional judgment or the client-lawyer relationship; and
  3. Lawyer-client confidentiality under Rule 1.6 is maintained (i.e. the lawyer cannot reveal information to the payor).

Rule 1.8(f)

30

True or false: Under the Model Rules, a firm of lawyers is essentially one lawyer for purposes of client loyalty and conflicts of interest.