Conflicts of Interest Flashcards
1
Q
What can result from a conflict of interest?
A
- Discipline
- Disqualification
- Malpractice Liability
2
Q
What is the general rule of imputation for conflicts?
A
It is imputed to everyone in the firm.
3
Q
What are exceptions to the general rule of imputation for conflicts?
A
Conflicts uniquely personal to the lawyer - usually a personal relationship
Conflicts based on past work of lawyer screened from case.
4
Q
Can you represent a client if representation will be directly adverse to another client?
A
No
5
Q
Can you represent a client if there is a significant risk that representation will be materially limited by another interest?
A
No
6
Q
What are requirements for waiving general conflicts?
A
- Reasonable belief that you can represent each side competently and diligently.
- Informed consent is required in writing from each affected client.
7
Q
In a general conflict of interest - must the client sign the writing explaining the risks?
A
No - the informed consent must be confirmed in writing by each side but it can be done via email or electronic means - client need not sign.
8
Q
Can you waive a conflict if you are on opposite sides of the same litigation?
A
No - unwaivable
9
Q
Can consent to provide representation through a conflict be withdrawn?
A
Yes
10
Q
Clients on opposite sides of the same matter are ___ adverse.
A
Directly.
11
Q
Representing client’s opponent in another matter is considered a matter which is _____ adverse to client.
A
Directly.
12
Q
Cross examining client in another matter against them is considered to be ____ adverse.
A
Directly.
13
Q
What is a material limitation?
A
When lawyer’s representation to will be limited by lawyer’s responsibilities to a different client, former client, or third person.
When the representation is limited by the lawyer’s personal interests.
14
Q
Can a lawyer represent multiple co-parties in a criminal case?
A
Yes but the risk of conflict is high and joint representation isn’t advisable.
15
Q
How does a lawyer in a civil case address conflicts of interest among co-parties?
A
1) Lawyer must reasonable believe it can represent all parties
2) Must explain consequences
3) Must get informed consent
4) Must readdress conflict if potential conflict becomes real
5) Must withdraw if reasonable lawyer would advise client against consent
6) Must get consent of dropped clients if continuing to represent any co-parties.
16
Q
Can a lawyer continue to represent a client if they have a financial or personal interest?
A
Yes if the client consents
17
Q
Are uniquely personal conflicts imputed to the firm?
A
No
18
Q
True or False: Representation can be limited where client owes a duty of confidentiality to former client?
A
True
19
Q
True or False: Representation can be limited where lawyer is the corporate director of client?
A
True
20
Q
True or False: Representation can be limited where lawyer acts as a fiduciary
A
True
21
Q
A lawyer ____ not use the current client’s information without their informed consent.
A
Must
22
Q
Does informed consent of current client to use confidentiality information need to be in writing?
A
No - you can use the information if exception to the duty of confidentiality applies.
23
Q
What are the rules regarding business transactions with clients?
A
- Transaction must be fair and reasonable to client.
- Lawyer must disclose all terms to the client in writing in a way the client understands.
- Lawyer must advise client to get independent counsel.
- Client must given informed consent in a signed writing.
24
Q
True or False: To enter into a business transaction with the client, informed consent must be in writing.
A
True
25
Can an attorney acquire an interest in the subject matter of litigation?
No
26
What are exceptions to the rule that an attorney cannot acquire an interest in the subject matter of litigation?
1. Contingent fees
| 2. Lien on client's recovery if authorized by state law
27
Does client consent allow an attorney to acquire an interest in the subject matter of litigation?
No
28
Can a lawyer accept a gift from a client?
Yes
29
What are limitations on the lawyer's ability to accept a gift from the client?
1. Attorney cannot solicit substantial gift from client unless they are a relative
2. Attorney cannot prepare any document giving lawyer or a relative a gift unless they are related to the client.
30
What does it mean to be a relative under the conflict rules?
```
Spouse
Parent
Grand Parent
Child
Sibling
```
31
True or False: Attorney cannot have an interest in a book movie, or other portrayal during representation.
True
32
Can a lawyer accept an interest in media rights when the case is completely over?
Yes
33
Can a lawyer provide financial assistance to client in connection with pending litigation?
No
34
Can a lawyer guarantee a loan from someone else to the client?
No
35
Can a lawyer advance court costs and expenses?
Yes
36
Can a lawyer make repayment of costs and expenses contingent on case?
Yes
37
Can attorney pay court costs and expenses for indigent client?
Yes
38
What is the process when representing co parties in a civil settlement or criminal case?
Fully explaining the claims and what everyone is getting.
Must get informed consent from each client in writing.
39
In a coparty settlement or plea bargain must the attorney obtained informed consent from each client in writing?
Yes
40
Can a third party pay a client's legal fees?
Yes
41
Is a writing required for a third party to pay client's legal fees?
No
42
What are limits on third parties paying legal fees?
Cannot interfere with attorney client relationship
| Cannot reveal client confidential information to the third party.
43
True or False: Preexisting sexual relationship is generally ok with client.
True
44
True or False: it is ok if a sexual relationships follows attorney client relationship
False - Attorney can be subject to discipline.
45
If there is a personal conflict based on sexual relationship with client is it imputed to the firm?
No - it is a personal conflict.
46
True or False: In house attorney should have no relationship with its boss.
True
47
True or False: Outside attorney should have no sexual relationship with company.
True
48
Is there an ongoing duty of confidentiality to former clients?
Yes - cant reveal or use former client's information to their disadvantage without their consent unless information becomes generally known.
49
When does a current client become a former client?
When it fires the attorney
When attorney withdrawals from case
When the case is over
50
Can a lawyer represent a new client against a former client if the matter is the same or substantially related to the former client's matter?
No unless the former client consents.
51
What does it mean for a matter to be substantially related?
Same transaction or legal dispute or
| Substantial risk confidential information would materially advance new client's position.
52
Can an attorney work on opposite side if actually acquired confidential information about the matter while at the former firm?
No - they must screened out.
| Can't accept fees or have access to the files.
53
What is required for a firm to screen out a lawyer?
1. Block them out of the case - no fees no info
2. Provide notice to client with disclosures of procedures
3. Provide updates to former clients
54
What is the rule when a client leaves the firm?
The firm is disqualified from representing the otherside in the same or substantially the same matter if even 1 lawyer remaining at the firm has confidential information about the case unless the client consents.
55
If no lawyers are left with information, can a firm represent the opposing party in a prior case?
Yes
56
True or False: No adverse representation in same or substantially similar matter if confidential information would be significantly harmful to the prospective client?
True
57
Is a conflict imputed to the firm if there is a prospective client conflict?
Yes but can be cured with screening and consent.
58
When does representation of a private party require government consent?
Cant be the same matter = specific facts and specific parties a
Lawyer worked personally and substantially on the matter while in government.
59
Is a government conflict imputed to the firm?
Yes but cured with screening
60
If you worked on a specific ordinance for a particular party do you need government consent to represent the party?
Yes
61
If a lawyer acquired confidential government information about a person during government employment, can they represent a private client against them later ?
No
62
If you go from private practice to government can a lawyer take part in any matter they are personally and substantially involved with while in practice?
No unless the government consents
63
Former judge/ neutral 3rd party/ law clerk ___ represent client in a matter they were substantially involved in unless __
Cant
All parties to the proceeding must consent
64
Is a conflict of a former judge/ neutral 3rd part/ law clerk imputed to the firm?
Yes but they can be screened out.
65
Can government employee, judge, or third party neutral negotiate for private employment where they are personally or substantially involved?
No - Exception for law clerks who gives advance notice to judge.
66
If a lawyer gets a standard loan from a bank it represents is it required to obtain client's written consent?
standard commercial transactions in which the lawyer buys goods or services that the client routinely markets to the public.
If a lawyer takes out a standard home loan from a bank that is also a client, it would be considered a standard commercial transaction.
The lawyer would have no advantage in this situation, so the usual requirements for business transactions don’t need to be met.
67
Is it proper for an attorney to pay an indigent client's expert witness fee outright without provision of repayment?
Yes
68
Is it proper for an attorney to pay an non-indigent client's court costs without repayment?
No
69
Is it property for an attorney to advance non-indigent client's court reporter fees and tell them they don't pay if you lose case?
Yes
70
Is it proper to guarantee a third party's loan to indigent client for living expenses?
No
71
Michelle is an estate planning lawyer. She wants to ask her client Pierre to make her the executor of his estate, which promises to be a lucrative position. Michelle and Pierre have no family relationship.
May Michelle proceed?
Yes - conflict rule for gifts from client dont prohibit a lawyer from seeking to be the executor of an estate. Ok if the attorney gets informed consent in writing.
72
Must an attorney get consent in writing for representing co parties in same case?
No
73
Must an attorney get consent in writing for business with client?
Yes
74
Must an attorney get consent in writing for aggregate settlement agreement?
Yes
75
Must an attorney get consent in writing for 3rd party paying legal fees?
No
76
What are the three conditions for a lawyer to accept a 3rd party payment of client legal fees?
(i) the client gives informed consent,
(ii) the third person doesn’t interfere with the lawyer’s independence or the representation of the client, and (iii) the arrangement doesn’t compromise the client’s confidential information.
77
Rena wants Jacob to draft a will that leaves a large sum of money to Jacob. Does consent cure the conflict?
No
78
When does direct adversity exist?
when a lawyer represents one client in a matter adverse to another current client, even where the lawyer represents the clients in unrelated matters
79
What is requried when direct adversity exists?
address the conflict by obtaining informed consent, confirmed in writing, from all related parties
80
Can a lawyer be on both sides of a transaction?
Yes if the client's consent and a confirmatory writing is circulated to all parties.
81
Can a lawyer be on both sides of a litigation
No
82
Can two lawyers in the same firm represent adverse clients in the same case?
No - the whole firm is treated as one lawyer
83
True or False: In class action litigation, the unnamed members of a class ordinarily are not regarded as clients for purposes of the “direct adversity” conflicts rule. Therefore, you can sue an unnamed class member in an unrelated matter without obtaining their consent.
True
84
True or False: Generally, a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients, and that on its own doesn’t create a conflict of interest
True
85
when a lawyer represents two clients in different cases who take a contrary position on a matter, a conflict exists if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer’s representation of another client in a different case
True
86
A lawyer may accept property, such as stocks, in lieu of money .as long as...
requirements for a business transaction are met.
87
What is a matter for purposes of government conflict rules?
It means a specific set of facts involving some specific parties. It’s defined more fully as, “any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties” (plus anything else that’s covered under the conflict of interest rules of the government agency in question).
88
Can a partisan arbitrator later represent a party in a case?
Yes - an arbitrator who is selected as a partisan of a party in a multi-member arbitration panel may subsequently represent that party. This is because a partisan arbitrator is not expected to be neutral.
89
Can a former judge represent a party in a case it was on?
No - not without informed consent of all parties in the case.
90
Can a law clerk represent a party in a case it was on?
No - not without informed consent of all parties in the case.
91
Can a mediator represent a party in a case it was on?
No - not without informed consent of all parties in the case.
92
What is the most accurate description of “confidential government information” for purposes of this conflict rule?
Information that was gained under public authority and which the government is prohibited from revealing, or has a privilege not to reveal, and which is not otherwise available to the public.
93
True or False: If information is available to the public through a channel like the Freedom of Information Act, it isn’t considered confidential government information.
True
94
True or False: a lawyer who leaves government service and enters private practice can’t represent a private client in a matter in which the lawyer participated personally and substantially while in government service, unless the government agency gives informed consent, confirmed in writing.
True
95
True or False:personally and substantially” doesn’t include work that is trifling, and it doesn’t include mere supervisory responsibility.
True
96
When are matters substantially related?
Matters are “substantially related” if: (i) they involve the same transaction or legal dispute, or (ii) there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the new client’s position.
97
If a lawyer does not handle a conflict correctly, what can result?
Disqualification as counsel
Professional Discipline
Civil liability of malpractice
98
What does the term firm mean
```
A law firm
Group of lawyers that practice together
Inhouse
Legal Aid
Government/pros/defense department
```
99
If a partner is sleeping with your client, is that a conflict imputed to the whole firm?
No - personal to the lawyer.
100
Conditions for lawyer to continue representation
(i) the lawyer reasonably believes that he can competently and diligently represent each affected client, despite the conflict of interest;
(ii) the representation is not prohibited by law;
(iii) the representation does not involve asserting a claim by one client against another client represented by that lawyer in the same litigation (or
other proceeding before a tribunal); and
(iv) each affected client gives informed consent,
confirmed in writing.
101
True or False: Informed consent that is oral will resolve a conflict.
False - must be in writing
102
Can written consent be by email?
Yes
103
True or False: Even with informed consent, a lawyer cannot be on both sides of a litigation case.
True
104
True or False: In a transaction, the lawyer may be able to address the conflict and act for both parties.
True
105
Can a client revoke consent previously given?
Yes
106
Can a lawyer ask a client to consent to conflicts that may arise in the future?
Yes if its is reasonable to do so and if the client understand the types of conflicts that are likely to come up.
107
Is this conflict clause valid or invalid: "Client consents to and waives all conflicts future and present"
Invalid because it does not explain the conflict to the client.
108
Is the conflict of interest impute to other lawyers in the firm?
Yes if the conflict is not personal in nature.
109
Can 2 lawyers at a law firm represent competing businesses in unrelated matters?
Yes - this is not automatically a directly adverse issue and further there is no requirement to disclose the conflict is there is none.
110
In a class action suit, the unnamed members ____ regarded as clients for purposes of the diversity adversity conflict rules.
Are Not
111
What is the signifcant risk factors in conflicts of interest?
The the lawyers personal interest or responsibility to a current client/future client/ third party will limit its representation.
112
What is the issue with an attorney representing 2 defendants that have divergent interest in a criminal case?
Violation of 6th Amendment
113
What are the 4 steps to handling multiple representation cases?
1. Lawyer must analyze the facts/law. If they can effectively represent both clients, ok to go to step 2.
2. Disclose the potential conflict to all parties/alternatives/disadvantages.
3. Informed consent in writing.
4. If a conflict breaks out, either re do the process above or have agreement in place that you will represent only 1 or none.
114
Should a lawyer agree to represent clients when their relationship is already contentious?
No
115
True or False: In a litigation between 2 people who were joint clients of a lawyer, neither can claim the attorney client priv?
True
116
What the rule of disclosure when representing multiple clients?
What one client wants to disclose will be shared with all others.
117
If a lawyer represents 2 clients in the same district/court and has to argue inconsistent positions in unrelated cases, must they disclose this?
Yes because the result in one case may affect the other.
118
True or false: Whether an insurance defense lawyer represents the company or policy holder varies by state to state.
True
119
When serving as an insurance defense lawyer, what is the attorney bound by?
Rules of Professional Conduct not the insurance contract.
120
True or False: In insurance defense, lawyer must look out for the policy holder and not disclose confidential information.
True - cant cave to the insurance company litigation managers and can disclose information that helps the claimants case.
121
Can a lawyer be disciplined for using the client's information to its disadvantage?
Yes
122
If lawyer uses the clients information to buy something that ends up benefiting the client, must they give it up?
Yes - violates the rules.
123
When working in government, person must not negotiate for private employment with any party or lawyer involved in the manner.
True
