Conflicts of Interest

Question 1

When is a lawyer prohibited from representing a client?

Answer 1

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)

Question 2

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

Answer 2

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

Question 3

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

Answer 3

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)

Question 4

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

Answer 4

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

Rule 1.8, comment 5

Question 5

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

Answer 5

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)

Question 6

Can a lawyer have a sexual relationship with a client?

Answer 6

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

Rule 1.8(j)

Question 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?

Answer 7

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

Question 8

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

Answer 8

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

Rule 1.8(c)

Question 9

Can lawyers solicit substantial gifts from clients?

Answer 9

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

Question 10

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

Answer 10

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).

Question 11

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

Answer 11

Withdraw from the case unless the client gives informed consent.

Rule 1.7, comment 11

Question 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?

Answer 12

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

Rule 1.7, comment 23

Question 13

When does a concurrent conflict of interest exist?

Answer 13

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)

Question 14

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

Answer 14

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)

Question 15

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

Answer 15

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

Rule 1.0(e)

Question 16

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

Answer 16

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

Question 17

What type of writing does informed consent require?

Answer 17

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)

Question 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?

Answer 18

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

Question 19

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

Answer 19

Yes

Rule 1.7, comment 21.

Question 20

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

Answer 20

Virtually never, the potential for conflict with multiple criminal defendants is so grave that the lawyer should 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.

Question 21

Who is considered a prospective client?

Answer 21

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

⚠️ Note: A person is not a prospective 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

Question 22

Can a lawyer reveal information learned from a prospective client?

Answer 22

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

Rule 1.18(b)

Question 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?

Answer 23

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)

Question 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?

Answer 24

Yes, via written informed consent.

Rule 1.18, comment 5.

Question 25

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

Answer 25

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. ## Footnote [Rule 1.9(a).](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/)

Question 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?

Answer 26

No, unless the former client gives written informed consent. ## Footnote [Rule 1.9(b)(2)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/)

Question 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**?

Answer 27

No, unless the former client gives written informed consent. ## Footnote [Rule 1.9(b)(2).](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/)

Question 28

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

Answer 28

No, unless the Rules would allow it or the information is generally known. ## Footnote [Rule 1.9(c)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/)

Question 29

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

Answer 29

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). ## Footnote [Rule 1.8(f)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_8_current_clients_specific_rules/)

Question 30

# Treu or False: Under the Model Rules, a firm of lawyers is essentially **one lawyer** for purposes of client loyalty and conflicts of interest.

Answer 30

True ## Footnote [Rule 1.10, comment 2.](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_10_imputation_of_conflicts_of_interest_general_rule/comment_on_rule_1_10/)

Question 31

What is **imputed disqualification**?

Answer 31

If one lawyer in the firm would be disqualified from representing a client, then all lawyers will be disqualified (i.e. conflicts are imputed to one another). ## Footnote [Rule 1.10(a)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_10_imputation_of_conflicts_of_interest_general_rule/)

Question 32

Disqualification is not imputed to other lawyers under which two circumstances?

Answer 32

1. The disqualification is based on **personal interests** of the disqualified lawyer and there is **no significant risk of materially limiting** the representation of the client; 2. Prohibition is based upon [Rule 1.9(a)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/) or [(b)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/) and arises out of the disqualified lawyer’s association with a prior firm and disqualified lawyer is **timely screened, given no part of the fees, and notice is given** to the client. See [Rule 1.10(a)(2)(i-iii).](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_10_imputation_of_conflicts_of_interest_general_rule/) ## Footnote [Rule 1.10(a)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_10_imputation_of_conflicts_of_interest_general_rule/)

Question 33

If an imputed conflict is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, when is representation allowed?

Answer 33

1. The disqualified lawyer is **timely screened** and receives **no part of the fees**; 2. The client receives **prompt written notice**; 3. **Certifications of compliance** are provided upon request. ## Footnote [Rule 1.10(a)(2)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_10_imputation_of_conflicts_of_interest_general_rule/) ⚠️ Note: Notice must describe the screening procedures, affirm firm compliance, inform about possible tribunal review, and include an agreement to respond to inquiries. Certifications must be provided upon the former client’s request and at the end of the screening period.

Question 34

If a new lawyer is properly screened in accordance with the model rules, what happens if the former client still objects?

Answer 34

As long as the new lawyer was properly screened, client objection is irrelevant because consent wasn't required, only notice. ## Footnote [Rule 1.10](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_10_imputation_of_conflicts_of_interest_general_rule/)

Question 35

Can a partner receive **compensation** directly related to a matter from which they are disqualified?

Answer 35

No ## Footnote [Rule 1.10.](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_10_imputation_of_conflicts_of_interest_general_rule/)

Question 36

If a lawyer no longer works at a firm, is the firm prohibited from representing a person who has interests **materially adverse** to those of a client the lawyer formerly represented?

Answer 36

No, unless: 1. The matter is the **same or substantially related** to that in which the formerly associated lawyer represented the client; and 2. Any lawyer remaining in the firm **possesses protected confidential information** that is material to the matter. ## Footnote [Rule 1.10(b)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_10_imputation_of_conflicts_of_interest_general_rule/)

Question 37

Can a disqualification under Rule 1.10 be **waived** by the affected client?

Answer 37

Yes, but this is rare. ## Footnote [Rule 1.10(c)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_10_imputation_of_conflicts_of_interest_general_rule/)

Question 38

Can a **former government lawyer** join a firm that has clients with direct conflicts with the government agency, and about which the attorney possesses protected information?

Answer 38

Yes, as long as the lawyer does not represent a client in connection with a matter in which the lawyer has **personally and substantially participated** as a public employee unless the government agency gives **written informed consent.** ## Footnote [Rule 1.11(a)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_11_special_conflicts_of_interest_for_former_current_government_officers_employees/)

Question 39

If a lawyer formerly worked for the government and joins a new firm, can lawyers in new firm handle matters the lawyer participated in while in public service?

Answer 39

Yes as long as: 1. The disqualified lawyer is **timely screened** from any participation in the matter and is **apportioned no part of the fee therefrom**; and 2. The appropriate government agency is given **prompt written notice** so that it can ascertain compliance with the provisions of Rule 1.11(b). ## Footnote [Rule 1.11(b)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_11_special_conflicts_of_interest_for_former_current_government_officers_employees/)

Question 40

Can a lawyer represent anyone in connection with a matter in which the lawyer **participated personally and substantially as a judge** or other adjudicative officer (arbitrator, etc)?

Answer 40

No, unless all parties give written informed consent. ## Footnote [Rule 1.12](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_12_former_judge_arbitrator_mediator_or_other_third_party_neutral/)

Question 41

If a lawyer is disqualified under Rule 1.12 (former participation as a judge, etc), can other lawyers in the same firm represent the matter?

Answer 41

Yes, if: 1. Disqualified lawyer is **screened** from any participation in the matter and is **apportioned no part of the fee;** and 2. Parties involved are given **prompt written notice** so that they may ensure compliance with the provisions of this Rule. ## Footnote [Rule 1.12(c)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_12_former_judge_arbitrator_mediator_or_other_third_party_neutral/)

Question 42

Is an **arbitrator** selected as a **partisan of a party in a multimember arbitration panel** prohibited from subsequently representing that party?

Answer 42

No ## Footnote [Rule 1.12(d)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_12_former_judge_arbitrator_mediator_or_other_third_party_neutral/)