Loyalty to the Client Flashcards
(18 cards)
Loyalty to Client
Attorneys owe an undivided duty to each and every client
Interference
Attorneys must avoid interference with professional judgment
Concurrent conflict of interest: defn
-Representation directly adverse to another client (CA: written consent + written disclosure)
OR
-Significant risk of material limitation on representation because of L’s responsibilities to
1. another client; or
2. former client; or
3. third person; or
4. L’s personal interests
***CA: if L’s connection to party/witness substantially affects L, then L must disclose in writing
Concurrent conflict of interest: duty
L shall not represent if that representation involves a concurrent conflict of interest, UNLESS:
- reasonable belief will be diligent and competent to both (not required in CA); AND
- does not involve claim by one client against another in same litigation; AND
- each gives informed consent confirmed in writing (see CA distinction); AND
- not prohibited by law
Sources of Conflict: Another Client: Aggregate Settlements
Must inform all AND get written consent from each
Sources of Conflict: Another Client: Prospective Client
Prospective Client = person who discusses possibility of forming L/C relationship
-L shall not use/reveal info obtained from prospective client, except when info has become generally known
Prospective Client: Disqualification
- L shall not represent C with interests materially adverse to those of prospective C in same or related manner if received info from prospective client that could be significantly harmful to him/her
- Disqualification is imputed to entire firm unless informed consent of both, in writing OR screening + prompt written notice to prospective C
Sources of Conflict: Former Client
Rule: L shall not represent client if matter SUBSTANTIALLY RELATED & interest MATERIALLY ADVERSE to former client unless informed consent confirmed in writing
***CA: applies only where L obtained material confidential info - then requires written disclosure + written consent
Former Client: Imputed to firm where
- interests materially adverse to former client; &
- L had acquired confidential information
-unless informed consent, confirmed in writing
Sources of Conflict: Third Person
Third party payers: no third party payer unless
- informed consent; &
- no interference with L’s independent professional judgment; &
- information protected by confidentiality
Sources of Conflict: L’s own personal interests: Business transactions with a client
Shall not unless
- terms fair and reasonable; &
- fully disclosed in writing; &
- C advised in writing about opportunity for independent counsel; &
- written informed consent signed by C
L’s own personal interests: Sexual relations with client
Shall not have sexual relations with client unless such relationship existed prior to L/C relationship
-no undue influence
***CA: cannot affect judgment
L’s own personal interests: Payment of personal/business expenses for client
ABA does not allow; may advance only costs
CA: contra
- may, with consent of client, pay expenses to third persons from funds collected or to be collected for the client as a result of representation
- may, after employment, lend money to client upon client’s promise in writing to repay
- may advance litigation costs to client
- may NOT offer to pay expenses for prospective clients (so may troll for business by offering to pay for things)
L’s own personal interests: wills
No prep if L or family gets something, unless L is related to C (including by marriage)
L’s own personal interests: literary publication
Shall not, prior to conclusion of legal matter
***CA: tolerates if only way to obtain representation, with informed consent
L’s own personal interests: related lawyers
Must inform C in writing
Organization as Client
- Best interests of organization
- Shall explain identity of organization as C when L knows or should know organization’s interests are adverse
Organization as Client: where L discovers misconduct
- ask for reconsideration
- advise second legal opinion
- refer matter to higher authority
- may resign; cannot blow whistle unless necessary to prevent substantial injury to organization
- **CA: CANNOT blow whistle
