2020 MPRE - Conflict of Interest
" "What are some CoI cause be lawyers own interests
1. financial interest 2. lawyers who are close relatives 3. sexual relationship
" "what is std for aggregate settlement agreements
1. lawyer must assure that the clients have come to an agreement among themselves about how the aggregate sum will be shared 2. The lawyer must disclose to each client all of the terms of the aggregate settlement, including: (a) the total amount that will be paid or received; (b) the existence and nature of all the claims, defenses, and pleas involved in the settlement; (c) the details of every other client's participation in the settlement, including how much each will contribute or receive and how each criminal charge will be resolved; and (d) how the lawyer's fees and costs will be paid and by whom. 3. Each client must give informed consent to the aggregate settlement agreement in a writing signed by the client.
" "What is the 4-step guide to assess co-representation in civil case
1. lawyer should analyze the facts of the case and the applicable law. If she concludes that she can effectively represent both clients, despite their potentially conflicting interests, then she can move to the second step 2. lawyer should disclose the potential conflict to each client and explain how it can harm each client, the reasonably available alternatives, and the disadvantages of having only one lawyer for the two of them. 3. when the clients fully understand the situation, the lawyer may invite their informed consent to the joint representation and confirm such consent in writing. 4. if the potential conflict eventually ripens into a present conflict, the lawyer must repeat steps a), b), and c), above. The lawyer must withdraw from the joint representation if a reasonable lawyer would have to advise either of the two clients not to consent. NOTE: lawyer may continue to represent one consenting client, but only if the client who is dropped gives informed consent to the continuation, confirmed in writing.
" "What is the std for handling CoI in nonlitigation matters
1. lawyer should analyze the facts of the case and the applicable law. If she concludes that she can effectively represent both clients, despite their potentially conflicting interests, then she can move to the second step 2. lawyer should disclose the potential conflict to each client and explain how it can harm each client, the reasonably available alternatives, and the disadvantages of having only one lawyer for the two of them. 3. when the clients fully understand the situation, the lawyer may invite their informed consent to the joint representation and confirm such consent in writing. 4. if the potential conflict eventually ripens into a present conflict, the lawyer must repeat steps a), b), and c), above. The lawyer must withdraw from the joint representation if a reasonable lawyer would have to advise either of the two clients not to consent. NOTE: lawyer may continue to represent one consenting client, but only if the client who is dropped gives informed consent to the continuation, confirmed in writing.
" "how to oversome prospective client conflict
1. obtain informed consent, confirmed in writing, from both the affected client and the prospective client. 2. (i) Demonstrate that the lawyer who held discussions with the prospective client took care to avoid exposure to any more confidential information than was necessary to determine whether to represent the prospective client; (ii) Demonstrate that the disqualified lawyer is timely screened from any participation in the matter and will not share the fee (but he may take his ordinary salary or partnership share); and (iii) Give written notice to the prospective client.
" "What are the exceptions to imputed disqualification
1. personal interest of the lawyer 2. screening of disqualified lawyer
prohibitions on switching from judicial service to private practice
A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as a judge or other adjudicative officer (e.g., a referee or special master) or as a law clerk to such person, or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceedings give informed consent, confirmed in writing.
" Criteria for law clerks negotiating for private employment
A law clerk to a judge or other adjudicative officer must notify that judge/officer before negotiating for private employment with a party (or the attorney for a party) in a matter in which the law clerk is participating personally and substantially
" "Explain consent to future conflicts
A lawyer may properly ask a client to consent to conflicts that may arise in the future, but only if it is reasonable to do so, and only if the client truly understands the particular kinds of conflicts that may arise and the consequences of consenting.
" "Can a lawyer accept compensation from a 3rd party
A lawyer must not accept compensation from a third person for representing a client, unless three conditions are met: 1. The client gives informed consent; 2. The third person does not interfere with the lawyer's independence or the representation of the client; and 3. The arrangement does not compromise the client's confidential information.
"what is std for acquring literary or media rights
A lawyer must not acquire literary or media rights to a story based in substantial part on information relating to the lawyer's representation of a client. However, a lawyer may acquire such rights after the client's legal matter is entirely completed, appeals and all. NOTE: The rule does not apply to literary or media rights that are not substantially based on information relating to the representation.
" "what is std for waiving/limiting malpractice liability
A lawyer must not make an agreement with a client that prospectively waives or limits the lawyer's liability for legal malpractice (except in the unlikely event that the client is independently represented in making the agreement). However, may do the following: 1. lawyer may practice in a limited liability entity, provided that the lawyer remains personally liable to the client for her own malpractice, and the entity complies with legal requirements for notice, insurance coverage, and the like 2. A lawyer may enter into an agreement with his client that reasonably limits the scope of the lawyer's representation in accordance with ABA Model Rule 1.2 3. A lawyer may agree prospectively with a client to arbitrate all legal malpractice claims, provided that such an agreement is proper under local law and the client understands the scope and effect of the agreement
" explain opposing former client in substantial same matter
A lawyer must not represent one client whose interests are materially adverse to those of a former client in a matter that is "substantially related" to a matter in which the lawyer represented the former client (unless the former client gives informed consent, confirmed in writing).
can lawyer oppose a client fo lawyers former firm
A lawyer whose firm formerly represented a client in a matter and who acquired protected confidential information or information pertaining to the representation [Rule 1.9(c)] may not thereafter represent another person in the same or a substantially related matter if that person's interests are materially adverse to those of the former client, unless the former client gives informed consent, confirmed in writing.
"Explain the screening of disqaulified lawyer imputation exception
A lawyer's conflict of interest will not be imputed to her firm if the lawyer's prohibition is relating to conflict of interest duties owed to former clients and arises out of her association with a prior firm provided 1. the disqualified lawyer is timely screened from participation in the matter; and 2. is apportioned no part of the fee from the matter 3. written notice provided to any affected former client
" What are the consequences for failing to handle CoI properly
A lawyer's failure to handle a conflict properly can have three unpleasant consequences: (i) disqualification as counsel in a litigated matter, (ii) professional discipline, and (iii) civil liability for legal malpractice.
explain disqualification for lawyer's former firm
A lawyer's former firm is prohibited from representing a person with interests materially adverse to those of a client of the formerly associated lawyer if: (i) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (ii) a lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter
" "Explain CoI for ""direct adversity"" between clients' interests
ABA Model Rule 1.7(a) prohibits a lawyer from representing one client whose interests are directly adverse to those of another client, unless both of the affected clients give their informed consent, confirmed in writing.
" "what is the continuing duty to former clients
An attorney's duty to preserve a client's confidential information does not cease when the representation ends. The attorney has a continuing obligation to preserve information gained in confidence during the representation
" "Should lawyer represent co-parties in criminal case
Because the interests of criminal co-defendants are very likely to diverge, ordinarily a lawyer should not try to defend two people in a criminal case. If a trial judge requires two criminal defendants with divergent interests to share a single lawyer, and if they are prejudiced as a result, their Sixth Amendment rights have been violated. Here are four examples of divergent interests: a) One defendant seeks to put the blame on the other; b) The story told by one defendant is inconsistent with the story told by the other; c) One defendant has a strong defense that is compromised to protect the other; and d) The trial tactics that would help one would harm the other
" "What can cure concurrent CoI
Despite a concurrent conflict of interest, a lawyer may represent a client if all four of the following conditions are satisfied: (i) the lawyer reasonably believes that he can competently and diligently represent each affected client, despite the conflict of interest; (ii) the representation is not prohibited by law; (iii) the representation does 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 (iv) each affected client gives informed consent, confirmed in writing.
"Can lawyer have property interest in litigation
Except as permitted below, a lawyer must not acquire a proprietary interest in the cause of action or the subject matter of litigation that the lawyer is conducting for the client. 1. contingent fee exception in a civil case 2. attorney is allowed to secure payment of her fee and repayment of advanced litigation expenses by taking a lien on the proceeds of a client's case; gives the attorney a personal stake in the outcome of the client's case, but this situation is tolerated as an exception to the general rule.
explain subsequent use of info gained during govt service
Except when expressly permitted by law, a government lawyer who receives confidential government information about a person must not later represent a private client whose interests are adverse to that person, when the information could be used to the material disadvantage of that person. The rule covers only information actually received by the government lawyer, not information that could be fictionally imputed to the lawyer.
explain conflict of private work following gov't work on same matter
Except when expressly permitted by law, a lawyer who leaves government service and enters private practice must not represent a private client in a matter in which the lawyer participated personally and substantially while in government service, unless the government agency gives informed consent, confirmed in writing.
"What does it mean when lawyer's CoI is ""imputed"" to the firm
Generally, 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. The conflict is said to be "imputed" from the first lawyer to the other lawyers.
" Explain the personal interest imputation exception
Generally, these conflicts are uniquely personal to the lawyer in question, which makes it unlikely that other lawyers in the firm would have divided loyalties.
"What are the consequences of a CoI before and after lawyer takes a case
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.
"Curing imputed disqualification of former govt lawyer
If a former government lawyer is disqualified, then everyone in that lawyer's firm is also disqualified unless: (i) The lawyer is timely screened from the matter; and (ii) The lawyer is not apportioned any part of the fee earned in the matter.
"Curing disqualification for former judicial service
If a lawyer is disqualified for former judicial service, everyone else in the lawyer's firm is also disqualified unless the following conditions are met: (i) The lawyer is timely screened from the matter; (ii) The lawyer is not apportioned any part of the fee earned in the matter; and (iii) Written notice is given to the parties and the appropriate tribunal so that they can ensure that the foregoing conditions are met.
imputed disqualification for govt to private lawyer
If a lawyer is disqualified from working on same matter worked in govt service, then everyone in that lawyer's firm is also disqualified unless the lawyer is timely screened from the case, the lawyer does not share fees from the matter, and written notice is promptly given to the governmental agency to enable it to make sure that the above conditions are being met.
explain disqualification of lawyer's new firm
If a lawyer who is disqualified from representing a client under the rules set out for opposing former clients, joins a new firm, the new firm may be disqualified as well unless the lawyer is properly screened (i.e., the disqualified lawyer does not work on the case, discuss it with those who do, or have access to case files) and does not share fees from the matter, and the former client is given notice
" "explain corp lawyer duty to report outside of org
If the lawyer reports the violation to the organization's highest authority, but the highest authority fails to take timely, appropriate action, the lawyer may report the relevant information to appropriate persons outside of the organization. This is true even if the information would otherwise be protected by the duty of confidentiality
can a corp lawyer rep both the org and associated person
lawyer for an organization may represent both the organization and one or more of the directors, officers, employees, or other persons associated with the organization, provided that the ordinary conflict of interest rules are satisfied.
" "Do unnamed members of a class action count as clients
In class action litigation, the unnamed members of a class ordinarily are not regarded as clients for conflict of interest purposes
" "How should lawyer handle confidentiality and privilege in co-repping clients
In litigation between two people who were formerly joint clients of a single lawyer, neither of them can claim the attorney-client privilege for their communications with that lawyer. - lawyer should warn the clients about it before undertaking multiple representation. - Moreover, a multiple representation is unlikely to work if one client wants to disclose material to the lawyer in confidence and wants to keep it confidential from the other clients - Therefore, the lawyer should ordinarily make clear to all clients at the outset that whatever one client discloses will be shared with all of the other clients. [Id.] In special situations, however, the clients may agree that one of them may disclose a given item of information to the lawyer but not to the other clients.
" "explain how lawyers that are close relatives may cause CoI
Lawyers related to each other as parent, child, spouse or children ordinarily may not represent adverse parties unless each client gives informed consent in writing. This type of conflict is not imputed to other lawyers in firm b/c its personal.
" explain lawyer duty in conflicts b/w organization and employees
lawyer for the organization should caution the person in question that the attorney represents the organization, not the person. lawyer should warn the person that communications between them may not be protected by the attorney-client privilege. Furthermore, when appropriate, the lawyer should advise the person to obtain independent legal counsel
" "Std for representing 2x clients w/ inconsistent legal positions in 2x unrelated cases
On bare facts there is no CoI. However, if one case will be heard in forum that will serve as precedent for the other case, then lawyer must fully disclose the situation to both clients and seek their informed consent, confirmed in writing. If either or both clients will not consent, the lawyer must seek the court's permission to withdraw from one or both cases.
"Explain the ""informed"" consent standard
Only informed consent will solve a conflict. That means that the affected client is aware of all of the relevant circumstances, reasonable alternatives, and foreseeable ways the conflict might harm her. Sometimes a lawyer cannot obtain informed consent from one client without revealing a fact that she learned in confidence from another client; if the second client will not permit the lawyer to reveal that confidence, then the lawyer cannot represent the first client; consent will not solve the conflict.
" "When screening a disqualified lawyer, what must the notice to the former client contain
Prompt written notice must be given to any affected former client detailing: (i) a description of the screening procedures employed, (ii) a statement of the firm's and the lawyer's compliance with these requirements, (iii) a statement that review before a tribunal may be available, and (iv) an agreement by the firm to respond promptly to written inquiries or objections by the former client concerning the screening procedures. The disqualified lawyer and a partner of the firm must provide the former client with certifications of compliance with the ABA Model Rules and with the screening procedures at reasonable intervals upon written request, and upon termination of the screening procedures.
" "what is std for CoI b/w client and third person interests
Sometimes the interest of a third person may create a substantial risk of materially limiting the lawyer's ability to represent the client effectively. When that is true, the lawyer may represent the client, provided that: (i) the lawyer reasonably believes that the third person's interest will not adversely affect the representation; and (ii) the client gives informed consent, confirmed in writing.
" explain duty of confidentiality to former clients
The attorney-client privilege protects confidential communications between a lawyer and a prospective client. The ethical duty of confidentiality also applies to information learned during a consultation between a lawyer and prospective client. Thus, the lawyer must not reveal or use information learned from a prospective client, unless an exception to the duty of confidentiality applies.
" "Explain the need for informed consent to be in writing
The consent must be "confirmedin writing." Usually that means either of two things: (i) there is a tangible or electronic record that is physically or electronically signed by the client; or (ii) there is an oral consent that is promptly memorialized in a tangible or electronic record that is promptly sent to the client. But note: The client's consent to an aggregate settlement or a business transaction with the lawyer must be signed by the client
" explain opposing former client with confidential information
When a former client has imparted confidential information to a lawyer, the lawyer must not then oppose the former client in any matter in which the confidential information would be relevant, unless the former client gives informed consent, confirmed in writing.
"can lawyer use confidential info to former client's disadvantage
When a lawyer has obtained confidential information from a former client, the lawyer must not thereafter use the confidential information to the former client's disadvantage, unless the former client gives informed consent, confirmed in writing. NOTE: This rule does not apply to information that has become commonly known. Furthermore, it does not apply to any information that the lawyer would be allowed to reveal or use under an exception to the general ethical duty of confidentiality.
" "explain constraints on negotiating for private employment
When a person in government service is currently working personally and substantially on a matter, she must not negotiate for private employment with any party or lawyer who is involved in that matter. NOTE: There is a special exception for judges' and adjudicative officers' law clerks who are seeking work after their clerkships
" "explain how lawyer's financial interest may cause CoI
When lawyers financial interest may impact ability to represent client C Ex. If the employment overture creates a substantial risk that A will curry favor with Magnum at C's expense, A must fully disclose the situation to C and obtain C's informed consent, confirmed in writing, before continuing as C's counsel.
When does a conflict of interest arise
a lawyer must not represent a client if a conflict of interest exists. A conflict of interest arises when there is a substantial risk that the lawyer's representation of the client will be materially and adversely affected by the lawyer's own interests or the lawyer's duties to another current client, a former client, or a third person.
" "Explain concurrent CoI
a lawyer must not represent a client if the representation creates a concurrent conflict of interest. A concurrent conflict exists in two situations: (i) The representation of one client will be directly adverse to another client; or (ii) 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.
"limitations on opposing prospective client
a lawyer who obtains confidential information during a consultation with a prospective client must not later represent a different person in the same or a substantially related matter if the confidential information could significantly harm the prospective client. NOTE: This conflict is imputed to others in the lawyer's firm, but the imputation can be overcome by screening,
Can a lawyer represent a client if a conflict of interest exists
absent the necessary informed consent, a lawyer must not represent a client if a conflict of interest exists
" What is the "reasonable lawyer standard" for consent rule
consent rule creates a reasonable lawyer standard. That is, 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 unconsentable, meaning that the client's consent will not solve the conflict
Can corp lawyer serve both as director and corp lawyer
dual role can create conflicts of interest. For instance, when the lawyer participates in a meeting as a director (rather than as the organization's lawyer), the attorney-client privilege will not apply to communications at the meeting, but some of the other directors may not realize that.
" "What is std for misuse of client's confidential information
lawyer has a duty not to disclose information relating to the representation of a client, except when an exception to the duty of confidentiality applies. In addition, a lawyer must not use such information to the client's disadvantage, unless the client gives informed consent or some other exception to the duty of confidentiality applies. The same rule applies to misuse of a former or prospective client's confidential information. - The rule applies not only when the lawyer uses the information for the lawyer's own benefit, but also when the lawyer uses it to benefit someone else, such as another client or a third party - However, a lawyer who uses the confidential information for his own pecuniary gain (other than in the practice of law) that does not disadvantage the client may be subject to civil liability—i.e., he may have to account to the client, former client, or prospective client for his profits
" "Should lawyer represent co-parties in civil case
lawyer may represent two plaintiffs or two defendants whose interests are potentially in conflict, but only if the two clients give informed consent, confirmed in writing There is a four-step guide for handling this situation:
" how can lawyer settle malpractice claim
lawyer may settle a malpractice claim or potential claim made by his client, but only if the lawyer first advises the client in writing to seek the advice of an independent lawyer about the settlement, and the lawyer gives the client a reasonable chance to obtain such advice.
" "Can a lawyer enter into a business transaction with a client
lawyer must not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or money interest that is adverse to a client, unless all of the following conditions are satisfied: 1. The terms of the business transaction (or the terms on which the interest is acquired) are fair to the client; 2. The terms are fully disclosed to the client in writing, expressed in a manner that the client can reasonably understand; must cover the essential terms of the transaction and the lawyer's role in the transaction (including whether the lawyer is acting as the client's lawyer in the transaction); 3. The client is advised in writing that he should get the advice of an independent lawyer about the arrangement before entering into it (and the client must be given a reasonable chance to obtain that advice) 4. The client gives informed consent, in a writing that the client signs.
" "explain how lawyers sexual realtionship with clients may cause CoI
lawyer must not have sexual relationship with client unless the relationship existed before representation (in which case is fine). This type if conflict is personal and not imputed
"explain corp lawyer duty to report to higher
lawyer must ordinarily report the violation to a higher authority in the organization (e.g., to a corporation's president). If necessary, the lawyer must report it to the organization's highest authority (e.g., a corporation's outside directors). NOTE: however, give the lawyer a narrow range of discretion—she need not report the violation if she reasonably believes that the organization's best interests do not require the violation to be reported.
" what are conditions for corp lawyer to report outside of org
lawyer's authority to report to outsiders applies only if, and to the extent that, the lawyer reasonably believes that reporting is necessary to prevent substantial injury to the organization.
" "What is std for gifts from clients
limits a lawyer's freedom to solicit or accept a substantial gift from a client who is not the lawyer's relative. 1. A lawyer must not solicit a substantial gift from a client who is not the lawyer's relative. However, a lawyer may accept a small gift from a client, such as a token of appreciation or an appropriate holiday gift.
" "what is std for lawyer providing financial assistance
prohibits a lawyer from financially assisting a client in connection with pending or contemplated litigation; However exceptions are: 1. A lawyer may advance court costs and other litigation expenses on the client's behalf, and repayment may be contingent on the outcome of the case. 2. A lawyer may simply pay the court costs and litigation expenses for an indigent client, without any provision for repayment. - A lawyer is subject to discipline for giving a client other financial help in the context of pending or contemplated litigation.
" what is the gift std for preparing legal instruments
prohibits a lawyer from preparing a legal instrument (such as a will or a deed of property) that creates a substantial gift to the lawyer (or the lawyer's relative), except when the donor is one of the lawyer's relatives
" "Explain direct adversity re. ""material limitation"" between clients' interests
re. situations in which there is a significant risk that the lawyer's representation of a client will be materially limited by the lawyer's own personal interests or by the lawyer's responsibilities to: (i) a different client, (ii) a former client, or (iii) a third person. When there is such a risk, the lawyer must not take on the matter (or must withdraw), unless each affected client gives informed consent, confirmed in writing.