MRPC 1.7 CURRENT CONFLICTS Flashcards
True or false: Rules 1.7, 1.8, and 1.9 are comprehensive in terms of a lawyer’s duty to remain conflict-free
False. Full duty to remain conflict free is not covered in entirety in these three rules
What does Rule 1.7(a) say and is it mandatory?
Rule 1.7: Current Clients
(a) Except as provided in (b), a lawyer SHALL NOT (mandatory) represent a client if the representation involves a concurrent conflict of interest IF
The representation of one client will be directly adverse to another client.
1) ONLY applies to direct client-to-client conflicts
Ex: You can’t represent Client A and B if you’re already representing Client A and Client B is suing Client A → directly adverse
OR
2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer → applies to direct and indirect conflicts):
+ Must be a significant risk AND
+ Must be a material limitation
What does Rule 1.7(b) say? What’s the first question a lawyer should ask themselves before going straight for 1.7(b)?
Can the conflict be cured? → Can’t cure a conflict that doesn’t exist!
Must meet ALL of the requirements to cure:
1) Reasonable belief (OBJECTIVE, NOT SUBJECTIVE) that the lawyer can provide competent and diligent representation to each affected client;
2) Representation NOT prohibited by law;
3) Not representing opposing clients; and
4) Each affected client gives informed consent confirmed in writing
True or false: Under Rule 1.7(b), a client can simply say “it’s fine” and the lawyer can proceed with a conflict
False.
1) Reasonable belief (OBJECTIVE, NOT SUBJECTIVE) that the lawyer can provide competent and diligent representation to each affected client
HAS NOTHING TO DO WITH WHAT CLIENTS SAY (Ex: “It’s fine”)
True or false: Could there be disclosure issues with clients who want to share representation?
True. Similarly situated clients want to share costs of defense BUT they might also have claims against each other → disclosure conflicts
What are the different concurrent conflicts of interest under 1.7?
Current Client-Potential Client Current Client - Current Client (directly adverse) Former Client - Current Client Third person - Client Lawyer - Client (indirect)
What is the conflict resolution analysis that should be used in Rule 1.7?
1) Identify ALL clients
2) Identify WHO the LAWYER is
You can’t solve the problem if the important parties are not clearly identified
3) Establish whether there is even a conflict in 1.7
+ If yes to conflict → Can representation be undertaken despite a conflict?
AND → do you want to try and remedy so you don’t have to deal with conflict down the road.
+ If yes to conflict and you DO want to remedy the conflict, consult with clients affected by (a) and obtain informed consent in writing in accordance to (b)
+ Clients affected by (a) include both of the clients referred to in (a)(1) and the one or more clients whose representation might be materially limited under (a)(2)
How is reasonable attempts to avoid conflicts defined under Rule 1.7?
[3] Reasonable Procedures before taking on a client
Appropriate for size and type of firm and practice
Ignorance caused by failure to institute procedures is no excuse for violations of COI
What should a lawyer do if conflicts arise after he’s taken a new client?
Rule 1.7 [4]
If conflicts arise after taking a client
Lawyer MUST withdraw UNLESS informed consent is obtained as described in 1.7(b)
Refer to Rule 1.16
What should a lawyer do if changes in firm structure result in conflicts under 1.7?
[5] Changes in the firm or with the client’s structure result in conflicts
It depends, but lawyer may have to withdraw
If so, seek court approval to minimize harm to clients 1.16
Can a lawyer’s personal or business interests present a conflict on client’s representation?
Yes. Rule 1.7 [10]
+ Lawyer’s own interest should not have effect on client’s representation
+ Lawyer may not allow related business interests to affect representation
If lawyer cannot reasonably conclude that they will provide competent and diligent representation can they proceed with representation?
No. Rule 1.7
If lawyer cannot reasonably conclude that they will provide competent and diligent representation related to Rule 1.1 and Rule 1.3
Can a criminal lawyer represent both sides in a murder case?
No.
In the process of 1.7(b) conflict curing, the lawyer gets consent from his clients. What should the consent include?
[18] Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. See Rule 1.0(e) (informed consent).
The information required depends on the nature of the conflict and the nature of the risks involved.
When representation of multiple clients in a single matter is undertaken, the information must include:
+ Implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege
+ The advantages and risks involved.
Are there certain conflicts with current clients that are not curable under Rule 1.7(b)’s client consent requirement?
Yes. [19]
Under some circumstances it may be impossible to make the disclosure necessary to obtain consent.
For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent.
Are there certain reasons why a client would give consent to common representation under 1.7(b)?
[19]
In some cases the alternative to common representation can be that each party may have to obtain separate representation with the possibility of incurring additional costs. These costs, along with the benefits of securing separate representation, are factors that may be considered by the affected client in determining whether common representation is in the client’s interests.
True or false: the requirement to get informed consent under 1.7(b)’s conflict cure can be verbal.
False. [20] Ideally, a lawyer should do both: verbal and in-writing.
Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing.
The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns.
Rather, the writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.
Can a client who gave informed consent while curing a conflict under 1.7(b) revoke the consent?
[20] yes.
A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer’s representation at any time.
Whether revoking consent to the client’s own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other client and whether material detriment to the other clients or the lawyer would result.
Can a lawyer ask a client to sign a waiver of future conflicts when they’re obtaining the client’s informed consent under Rule 1.7(b)?
It depends. [22]
Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b).
The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails.
+ The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding.
Ex: if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict.
+ If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved.
+ On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation.
In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict non-consentable under paragraph (b).
Is representation of opposing parties in the same litigation allowed? What about simultaneous representation of parties whose interests in litigation may conflict (co-plaintiffs or co-defendants)?
Rule 1.7 [23]
(b) (3) prohibits representation of opposing parties in the same litigation, regardless of the clients’ consent.
(a) (2) Simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs or co-defendants is OK if the 1.7(b) requirements are met
A conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.
On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements of paragraph (b) are met.
Is advocating a particular legal position for a client that may be adverse to another client for precedent in an unrelated matter a conflict?
No. 1.7 [24]
The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest.
Is it a conflict 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? Give an example.
yes. 1.7 [24]
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.
Ex: When a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.
Factors relevant in determining whether the clients need to be advised of the risk include:
+ where the cases are pending
+ whether the issue is substantive or procedural
+ the temporal relationship between the matters
+ the significance of the issue to the immediate and long-term interests of the clients involved
+ the clients’ reasonable expectations in retaining the lawyer.
If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.
Are lawyers that represent classes of persons considered to have a lawyer-client relationship with each member of the class seeking remedy? Does the lawyer need to seek consent from potential conflicts of interest from other clients or the class of persons?
No. 1.7 [25] When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of this Rule.
Thus, the lawyer does not typically need to get the consent of such a person before representing a client suing the person in an unrelated matter. Similarly, a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.
Do conflicts of interests arise outside of litigation?
yes. 1.7(a)
26] Conflicts of interest under paragraphs (a)(1) and (a)(2) arise in contexts other than litigation. For a discussion of directly adverse conflicts in transactional matters, see Comment [7].
Relevant factors in determining whether there is significant potential for material limitation include
+ Duration and intimacy of the lawyer’s relationship with the client or clients involved
+ Functions being performed by the lawyer
+ The likelihood that disagreements will arise and the likely prejudice to the client from the conflict.
The question is often one of proximity and degree.
