MR: Conflict of Interest Flashcards
Consequences of a Conflict of Interest
If a conflict of interest is apparent before a lawyer takes on a client’s matter, then the lawyer must not take it on.
If a conflict becomes apparent only after the lawyer has taken on the client’s matter, and if informed consent of the affected client(s) will not solve the problem, then the lawyer must withdraw.
A lawyer’s failure to handle a conflict properly can have three consequences: (1) disqualification as counsel in a litigated matter,
(2) professional discipline, and
(3) civil liability for legal malpractice.
Vicarious Liability
Lawyers who practice together in a “firm” are treated as a single unit
for conflict of interest purposes. That is, when one of the lawyers cannot take on a matter because of a conflict of interest, the other lawyers in the “firm” are also barred from taking on that matter.
Exceptions to Imputed/Vicarious Disqualification
1) Conflict Based on Uniquely Personal Interest of Lawyer
2) Specific Situations Involving Lawyer’s Former Dealings
Any conflict will be cured provided the disqualified lawyer is timely screened from participation in the matter (does not have access to files, etc.) and is apportioned no part of the fee from the matter (apart from their normal salary or partnership share).
Written notice of the procedures must promptly be given to the affected client or person.
Concurrent Conflicts of Interest
A concurrent conflict exists if:
1) The representation of one client will be directly adverse to another client; or
2) There is a significant risk that the representation of one client will be materially limited by the lawyer’s own interest or by the lawyer’s responsibilities to another client, a former client, or a third person.
Overcoming a Conflict of Interest
If there is a conflict of interest, a lawyer may represent a client if:
(1) the lawyer reasonably believes that he can competently and diligently represent each affected client, despite the conflict of interest;
(2) the representation is not prohibited by law;
(3) the representation qdoes 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
(4) each affected client gives informed consent, confirmed in writing
When is Informed Consent Valid?
When it is INFORMED
A client is informed if she is aware of all of the relevant circumstances, reasonable alternatives, and foreseeable ways the conflict might harm her.
If a REASONABLE LAWYER looking at the facts would conclude that the client’s interests would not be adequately protected in light of the conflict, then the conflict is incurable even with informed consent.
Consent Must Be Confirmed in Writing
The client can always revoke consent
