Successive Conflicts of Interest Flashcards
(34 cards)
Basic Requirements
must have a former client
former client is now adverse to the current litigation
only a substantially related matter between the former and current representation
where the confidential information is in some sense vulnerable
Continuing duties
Confidentiality continues
Loyalty continues to some extent
- loyalty is important but if the issue is unrelated you can be adverse
What is needed for an issue to arise
Confidential information must be at risk
What must you need to prove
A conclusive irrebutable presumption that client confidentiality is in jeopardy.
- good faith of attorney is irrelevant
- you don’t have to show actual use of the confidential information, just that the attorney had it.
Other important issues
Waiver: unlike concurrent clients; waivers are always available
Government: special rules for government - notion of the Chinese wall
Imputation
Courts focus on confidentiality, loyalty, and fiduciary duty
Private Parties 2 Approaches to determining confidentiality of subsidiary relationship
Nature of the Information
Relatedness of Areas of Law
Nature of the information analysis
Analytica - Posner - look at the information at stake. If the information is serious, this means that there is a substantial relationship
Relatedness of areas of law
TC Theaters - look at the relatedness of the representation first. Under the TC theaters approach, as long as they are related in regard to the law, that is enough
Which one do most people favor?
The Analytica approach.
Things that can happen with a successive conflict
- Presumptive conclusion
- Imputation to the firm
- Screening
- Waiver
- Government lawyers
- Prospective clients
Presumptive conclusion
don’t have to show that anyone is misusing information. The lawyer is conflicted out anyways - presumptive conlusion
Imputation to the firm
Successive conflicts are imputed to the firm
But there is a rebuttable presumption that the entire firm is imputed. Some courts will let the firm prove that the firm is not affected.
Screening
Chinese wall. The rules don’t necessarily like this approach but it works in some circumstances.
Waiver
Even if you have a successive conflict, the client may still waive.
Waiver under successive vs. concurrent
Compared to concurrent conflict, you have to ask yourself with it is constable. If successive you ask the client. Loyalty factor is not as strong in successive as it is in concurrent.
Government lawyers
If you represented to government, you could never be adverse to government and would make them unhirable.
Rule for government lawyers in successive conflicts
1.11 Screening is allowed to allow firms that have hired past government lawyers to be adverse to the government
Prospective clients
??? P. 22
Note about joint representation
What if you rep two people in a business can you still continue with the representation.
Lawyer will be able to argue that it was joint representation and because of this there should never have been an expectation of confidentiality
Substantial relationship test
If the subject matter of a former representation and that of a subsequent adverse representation; the latter is prohibited. The former client does not need to show any more than that the matters are substantially related. Court will assume that during the course of the former representation, confidences were disclosed to the attorney bearing on the subject matter of the representation. It’s not the kind of advice that the lawyer rendered but the factual information that she learned that is important. If not substantially related then there is no conflict.
Continuing duty of loyalty
There is no confidentiality when there is joint representation. If there is confidential information however, loyalty can come into play.
Rule 1.9. States that the notion that loyalty to a former client survives the termination of the relationship. The lawyer cannot produce a product for a client and then turn around and seek to destroy its legal usefulness.
Defenses to disqualification
The client has the right to choose their lawyer
Do not have to dq lawyer because this is a strategic game
Delay trial
Courts have control over their own litigation agenda
Liability
A firm acting adversely to a former client in violation of substantial relationship test subjects itself to liability for breach of fiduciary duty.
Who is a former client
Any potential person or business who has provided information in a way so that they thought they were dealing with their lawyer.
If the person reasonably believes that they were your client, then there are a former client.
