Carson's MPRE > Conflicts > Flashcards

Conflicts Flashcards

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1
Q

When are conflicts imputed to all of the other attorneys at a firm.

A

Always UNLESS

  • Conflict uniquely PERSONAL to the lawyer (e.g. family relationship) which makes it unlikely that other lawyers in the firm would have divided loyalties OR
  • Certain conflicts based on past work of lawyer (past job or talk with prospective client) if SCREENED from the case and notice is provided to the client
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2
Q

What are the two types of conflict with current clients?

A
  • Direct adversity conflicts (Can’t represent a client if they will be directly adverse to another client)
  • Material Limitation conflicts (Can’t represent a client if there is a SIGNIFICANT RISK that the representation will be MATERIALLY limited by another interest)
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3
Q

Can you represent a client even if there is a conflict with a current client?

A

Only if REASONABLE BELIEF + CLIENT CONSENT:

1) “Reasonable atty” would believe they can represent each client competently and diligently (objective standard)
2) Representation not prohibited by law
3) Representation is not of opposite parties with claims against each other in the same litigation
2) Informed consent confirmed in writing from each affected client. (If the duty of confidentiality to one client means you can’t explain the conflict to get informed consent of another client, you cannot get the waiver)

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4
Q

What kind of conflict is not waivable?

A

Being on opposite sides of the same litigation.

(but can be on opposite sides of a negotiation if the parties consent and a reasonably lawyer would conclude that the clients’ interests are adequately protected)

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5
Q

What are examples of direct adversity conflicts?

Who must consent to these conflicts

A
  • Clients on opposite sides of the same matter
  • Representing client’s opponent in another matter (could lead to a feeling of betrayal)
  • Cross-examining current client in another matter

BOTH clients must consent to the conflicts

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6
Q

What makes for a material limitation conflict?

A

Anything that creates a SIGNIFICANT RISK that the lawyer’s representation of the client will be MATERIALLY LIMITED by the lawyer’s responsibilities to a different client, former client or third person or the lawyer’s personal interests.

Lawyer should not be distracted by other interests

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7
Q

What are examples of material limitation conflicts?

A

1) Representing co-parties in a case (not advisable but permitted in criminal cases. In civil cases, can usually be addressed. Must readdress if potential conflict becomes real. Must get the consent of dropped parties if continuing two represent any co-parties
2) Lawyer’s personal interests
3) Lawyer’s duties to former clients and third parties. (e.g. lawyer owes separate duty of confidentiality to another client, lawyer is a corporate director or acts as fiduciary)

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8
Q

When can you use a client’s confidential information against them?

A
  • Client provided informed consent (no writing required)

- An exception to the duty of confidentiality applies

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9
Q

What are the requirements for a business transaction with a client?

A
  • Transaction must be fair and reasonable to the client
  • Must disclose all terms to the client in writing in a way that the client can understand (must cover the essential terms in the transaction and the lawyer’s role in the transaction)
  • Must advise the client in writing to get independent counsel (and give time to obtain that advice)
  • Client must give informed consent in a SIGNED writing
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10
Q

Can an attorney acquire a proprietary interest in the subject matter of the litigation?

A

NO - not even if the client consents unless its a contingency fee or a lien on the client’s recovery (if authorized by law)

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11
Q

What are the restrictions on gifts (including testamentary gifts) from clients?

A
  • Lawyer or lawyer’s relative cannot solicit a substantial gift from a client unless its a close familial relative. (If not solicited, can accept)
  • Cannot prepare an instrument giving the lawyer or one of the lawyer’s relatives a substantial gift unless the donee is related to the client
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12
Q

Can an attorney have any interest in a book, movie or other portrayal of the case?

A

No if the portrayal focuses on the case. Lawyer can have these rights after the case is completely over

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13
Q

Can you help a client financially during pending or contemplated litigation?

A

No (not even a loan guarantee) BUT

  • may advance court costs and expense (for client to repay later - perhaps contingent on a win)
  • May pay court costs and expenses for indigent client
  • When representing an indigent client pro bono, many give the client gifts (not loans) for basic living expenses (can’t promise anything and can’t ask for reimbursement)
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14
Q

What are the attorney’s obligations in an aggregate settlement agreement situation?

A

Must let the clients come to an agreement among themselves about how the pot is to be divided
- Fully explain the claims and what everyone’s getting
- Get informed consent from each client in a SIGNED writing
(This may require the lawyer to share one client’s confidential information with other clients, so from the outset, the lawyer should get permission to do that)

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15
Q

What are the three instances when a writing must be signed?

A

1) Business transactions with a client
2) Joint settlement agreements
3) contingency fee arrangements

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16
Q

A third party is paying for the client’s legal fees. What does the lawyer need to do?

A
  • Client must give informed consent (no writing required)
  • Third party cannot interfere with the relationship
  • Cannot reveal client’s confidential information
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17
Q

Why is it an especially bad idea to involve the third party that is paying the client’s bills in the legal representation?

A
  • Can eliminate attorney client privilege
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18
Q

What are the rules about sexual relationships with clients?

Who is covered by this rule for corporate clients?

Can a pre-existing relationship cause a conflict?

A

No relationships with clients unless preexisting and will not affect judgment. Conflict not imputed to the firm

For corporate clients, the rule applies to any person who supervises, directs, or regularly consults with the lawyer concerning the organization’s legal matters

A preexisting relationship can cause a conflict if the sexual relationship will “materially limit” the lawyer-client relationship and implicate the general conflict of interest rule for current clients

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19
Q

When might screening be a solution to a conflict?

A

If the conflict involved a former client. Never a solution for a conflict between two current clients

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20
Q

When is there a conflict between a current client and a former client?

A

If it is the SAME OR SUBSTANTIALLY RELATED matter. The conflict is present even if the former client did not share any confidential information
OR IF
there is a substantial risk that the information that would normally have been obtained in the prior representation would materially advance the interests of the new client.

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21
Q

What does substantially related mean?

A
  • same transaction or legal dispute or

- substantial risk confidential information would materially advance new client’s position

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22
Q

Do we care if the matters are related when evaluating conflicts among current clients?

A

No - we only care about same or substantially related for conflicts between a current and a former client

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23
Q

I just left my firm to join a new one. My new firm is opposed to every single client at the old firm. I have a conflict with all of the clients?

A

No. Only those that you actually acquired confidential information about while at the former firm.

(Cannot work on the opposite side if you actually acquired confidential information about the matter while at the former firm - no matter how de minims the info is)

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24
Q

Attorney Bob leaves Firm B and joins Firm A. Firm A is opposite one of Firm B’s clients on the same or substantially related matter. What should firm A do?

A

Screen Bob from that matter. Otherwise the conflict will be imputed to everyone at the firm.

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25
What does "screening" entail?
- no sharing fees - no access to case files - No client consent required - Notice to former client with disclosures about the procedures - updates to the former client
26
ABClient leaves Firm A. To what extent does Firm A have a conflict if a new client wants to sue ABClient?
The firm is disqualified from representing any client adverse to ABClient in the same or a substantially related matter IF EVEN ONE LAWYER REMAINING AT THE FIRM has confidential information about the case unless the former client consents (If no lawyers with confidential information are left, then no consent is required)
27
When does an attorney have a conflict involving a POTENTIAL client? How to cure?
Attorney cannot be adverse to a potential client in the SAME OR SUBSTANTIALLY RELATED matter if confidential information would be SIGNIFICANTLY HARMFUL to a prospective client Cure by consent confirmed in writing from the prospective client and the actual client
28
Is a conflict involving a potential client imputed to the firm?
Yes, but can be cured with screening AND must demonstrate that the attorneys that communicated with the prospective client must not have solicited any more information than necessary.
29
I just moved from the government to private practice. When do I have a conflict? How can it be cured?
- SAME MATTER (must involve same facts and parties) - worked PERSONALLY and SUBSTANTIALLY on the matter while in government Cure with consent from the government agency Cure conflict imputed to the firm with screening and notice to the agency
30
What are the rules for confidential government information and attorneys that left government for private practice?
- Can't use confidential government information about a person against them as part of representing a private client later
31
I just moved from private practice to government. What conflict rules apply?
Same rules for current and former clients apply. PLUS if you worked personally and substantially on a matter in private practice then you may not work on that same matter for the government even if the government is not adverse to the former client (but informed consent from govt can cure). Notice that you might need to get consent from your own employer
32
I acted as a judge/third party neutral/law clerk in my old job. Can I be involved in that matter in my new job?
No if you participated personally and substantially on the matter in the old role, cannot work on the matter in the new role, unless all parties in the proceeding consent. If no personal or substantial involvement in old role, no conflict. Conflict is imputed but can be solved by screening
33
Government employees/judges cannot negotiate with a private party for employment if they are involved with that party in any matter personal and substantially
Unless law clerk with judge's advance permission. It doesn't matter if the government employee is acting in a legal role or not
34
What level does the risk have to rise to that the client’s representation be affected by the lawyer’s own interests to be considered a conflict?
The risk must be “significant”
35
When taking on a new matter if the lawyer’s interests are likely to ____ her ability to represent a client effectively, she must ____.
Materially limit Not take on the matter unless she obtains informed consent confirmed in writing from her client
36
What level does the risk have to rise to that the client’s representation be affected by the lawyer’s own interests to be considered a conflict?
The risk must be “significant”
37
What is the solution to a conflict of interest before a lawyer takes on a matter? after a lawyer takes on a matter?
informed consent confirmed in writing or don't take on the matter Informed consent confirmed in writing or writhdrawal
38
What are three possible consequences of an unaddressed conflict of interest?
- Disqualification as counsel in a litigated matter - Professional discipline - civil liability for legal malpractice
39
What is the definition of "firm" for purposes of imputing conflicts of interest
- Ordinary private law firm OR - a group of lawyers that practices closely together (e.g. corporate legal dept, legal aid office, prosecutor's office or public defenders office Factors considered include: - formal agreement among the lawyers - hold themselves out to the public in a way that would make the public think they were a firm - Share revenues or responsibilities - Have physical access to each other's client files - routinely talk among themselves about the matters they are handling - would the purpose of the conflict rule be served by imputing the conflict to the other lawyers in the group
40
What does consent confirmed in writing mean?
tangible or electronic record signed by the client OR oral consent that is promptly memorialized by sending a tangible or electronic record to the client
41
When can a client revoke consent to a conflict?
At any time. Depending on the facts, the attorney may or may not be able to continue to represent other clients in that matter after the consent is revoked
42
Can a lawyer ask a client to consent to conflicts that may arise in the future?
Only if it is reasonable to do so and if the client actually understands the particular kinds of conflicts that may arise and the consequences of consenting (Explanation likely needed)
43
Economic business rivals are not automatically legally adverse to each other
True
44
I serve on a legal aid bureau's board and also have a private practice. Can I vote on matters that will adversely affect my clients?
No - must abstain
45
Attorney talks with a potential client for a few hours about the potential client's cause of action. No confidential information is disclosed - all of it is public. Attorney then represents the defendant that the potential client ends up suing (with a different lawyer). Is the attorney subject to disqualification/discipline?
No, the rule is that and attorney cannot be adverse to a potential client in the SAME OR SUBSTANTIALLY RELATED matter if confidential information would be SIGNIFICANTLY HARMFUL to a prospective client. If there is no confidential information exchanged, then there is no concern of a conflict
46
Can material limitation conflicts be waived by client consent confirmed in writing?
Yes + reasonable belief that lawyer can represent them both effectively
47
What are examples of material limitation conflicts?
(Significant risk that lawyer's rep of client will be materially limited) - Co-Parties in criminal litigation (Ordinarily shouldn't do it) - Co-Parties in civil litigation (more acceptable) - Co-Parties in Non-litigation matters (depends) - Representing two clients with inconsistent legal positions in unrelated cases - Conflicts caused by the lawyer's own interests
48
What kind of conflict is a multiple representation conflict? What is the specific procedure for dealing with these kinds of conflicts?
Material Limitation Conflict 4 Step Procedure: 1) Analyze the facts and determine if you can effectively represent both clients (reasonable lawyer standard) 2) Disclose conflict to each client and explain how it can harm each client 3) Informed consent confirmed in writing 4) If a potential conflict ripens into a present conflict, repeat steps 1,2,3
49
What is the problem if a client in a joint representation wants to talk to their lawyer and keep the communications private from the other joint clients?
The lawyer shouldn't allow it because if the joint client relationship breaks down, none of them will be able to assert attorney client privilege. Make it clear from the outset that all information shared with the joint attorney will be shared with all joint clients
50
I'm representing two clients with inconsistent legal positions and one case is about to become controlling precedent in the other. What do I do?
- Get informed consent confirmed in writing from both of them or withdraw from one of the cases
51
What are the two areas where lawyers might have a conflict with their own interest?
1) Lawyer's financial interest (could be through potential employment, ownership, etc) 2) Lawyer's Close Relatives (closely related)
52
What if a third person's interest conflicts with the interests of a current client? What should the lawyer do?
(e.g. Charity offers to pay for the will writing of any person that leaves the charity $2K or more) Just normal concurrent conflict procedure: 1) Lawyer reasonably believes that the third person's interest will not adversely affect the representation 2) Client gives informed consent confirmed in writing
53
What are the areas to watch for conflicts of interest in liability insurance?
1) Difference in settlement incentives around the policy limit for insurance co and the insured 2) Spending limits placed on the insurance company provided attorney 3) Is the event covered by the policy
54
Who is the lawyer's client in the liability insurance context?
Either the insured alone or the insured + Insurance company as joint clients
55
The insurance company and the insured are faced with a settlement right around the insurance policy limit. What do the parties need to do to address the conflict? (What are the consequences for the insurance company and the lawyer of fumbling this conflict?)
- Disclose conflict to insured and invite them to obtain independent counsel at the insurance company's expense to advise on the settlement issue - If the attorney fails to do the above^ and negligently or in bad faith advises the insured to reject the settlement, attorney is subject to discipline and civil malpractice liability - If Insurance co negligently or in bad faith rejects the settlement offer, insurance co will be liable for the entire judgment even if the amount is over the policy limit
56
In the liability insurance context, some defendants may not want to settle within the policy coverage limits, what are the key issues in this situation.
- Look to see if the insurance contract gives the insurance co sole discretion to settle claims within the policy limits, if so the lawyer hired by the insurance company must inform the policy holder about this issue. - After informing the insured, the lawyer can follow the insurance company's wishes, but before accepting a settlement that the lawyer knows that the insured will object to, the lawyer must notify the insured to give them the chance to take over the defense (and cost) on their own.
57
In the liability insurance context, a "litigation manager" is trying to control the costs of the representation by looking over the shoulder of the attorney. What information can the lawyer give to the litigation manager?
Cannot disclose confidential information of the insured without the insured's informed consent. Can disclose bills and time records containing confidential information if doing so will aid and not harm the insured
58
In the liability insurance context, an insurance company is relentlessly trying to interfere with the representation. What is the solution?
Withdraw
59
A lawyer is about to enter into a business transaction with a client and the client has already obtained independent counsel. What are the effects on the lawyer's ethical obligations?
1) The lawyer no longer has to inform the client to obtain independent counsel (b/c already has it) 2) the disclosure of the conflict can be made by the independent counsel
60
Who is considered a relative for purposes of the client-attorney gift rules?
The lawyer's spouse, child, parent, grandparent, grandchild, and other persons with whom the lawyer maintains a close familial relationship
61
A lawyer is writing a will and wants to name himself or one of his partners as executor (which is lucrative appointment). Is this an ethics violation?
Not inherently. Just subject tot he normal conflict of interest rules for self interest. Should probably disclose and get client's informed consent
62
Does the duty of confidentiality continue after the representation ends? Can I use confidential information of a former client?
Yes Only if it does not disadvantage that client. (If the attorney profits even if the client is not disadvantaged, there may be civil liability)
63
A prospective client has a conflict with a current client about the same or substantially related matter. Conflict? A former client has a conflict with a current client about the same or substantially related matter. Conflict?
Only if the prospective client has shared confidential information with the attorney and that confidential information would be significantly harmful if used against them. Yes, regardless if any confidential information is shared
64
Current client wants lawyer to represent them in a case against former client. The lawyer has represented a former client in a case of the same general type but with distinct facts. Conflict?
No, a lawyer may later oppose a former client in a factually distinct problem of the same general type
65
What is the definition of matter when evaluating if a former government employee is conflicted in his new private practice role?
Matter means a specific set of facts involving some specific parties
Carson's MPRE
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