Conflicts of Interest

public interest litigation

Conflicts or potential conflicts may also arise in public interest litigation because different groups interested in the litigation may have divergent goals (i.e. prison reform group and mental health inmates represented by the same public interest firm in the same town; fighting over the same property).

cross examination

A lawyer can have an adverse relationship to a current client in litigation even if the client is not a party in the case in which the conflict arises. Lawyer who represents one defendant may have also represented previous defendants who might incriminate him (i.e. where one client appears as a witness in another case handled by the lawyer).

litigation: lawsuit

A lawyer cannot file suit against another present client unless the lawyer reasonably believes that she can represent both without adverse impact on either and unless both clients give informed consent.

using confidences

A lawyer who has acquired confidences of a former client may not use that information to the disadvantage of the former client unless the Rules permit or the knowledge is generally known. The lawyer may not reveal the confidences of the former client unless the Rules permit.

US v. Schwartz

Facts: During the detention, the man who was arrested was physically and sexually assaulted. • The officers' union (Policeman's Benevolent Association) hired outside counsel for two officers to avoid conflicts of interest for the union's regular law firm. • These lawyers shortly thereafter formed a law firm; the government informed them of conflicts of interest by representing co-defendants. • Retainer to represent any other police officers or the PBA for two years. • Lawyers that the two defendants it represented were prepared to waive their conflicts and that there was no adversity in their defenses (did not mention the third defendant who was represented by the PBA's normal firm). • Government stated that the representation of the two defendants and the PBA was non-waivable. • Subsequently, the firm of the lawyer hired to represent Officer A was hired by the union, inter alia, to provide it with civil legal representation. • A civil lawsuit was filed by the man who was arrested (Louima) against the union and its president. Holding: The court held that this established an unwaivable actual conflict of interest which adversely affected the attorney's performance in that, for no plausible tactical reason, counsel failed to present exculpatory evidence that could have changed the outcome at trial. The court felt that the only possible explanation for this failure was the conflict. Moreover, the jury's exposure to extrinsic information during deliberations, considered with other circumstances in the case, gave rise to a reasonable probability the outcome of the trial would have been different. Thus, the district court erred in denying an evidentiary hearing on the matter. Insufficient evidence was presented to support the conspiracy to obstruct justice convictions.

Impartiality In re Disciplinary Proceedings Against Richard Sanders

Facts: Right after he was sworn in, a Washington State Supreme Court Justice carried a red rose signifying pro-life and made a speech that said, "Well, I'm not quite Chief Justice, but I am a Justice. That's plenty good enough for me. I want to give all of you my best wishes in this celebration of human life. Nothing is, nor should be, more fundamental in our legal system than the preservation and protection of innocent human life. By coincidence, or perhaps by providence, my formal induction to the Washington State Supreme Court occurred about an hour ago. I owe my election to many of the people who are here today and I'm here to say thank you very much and good luck. Our mutual pursuit of justice requires a lifetime of dedication and courage. Keep up the good work." Holding: The justice's brief appearance at the rally to express his belief in the preservation and protection of innocent human life and to thank his supporters in the crowd for his election to office did not lead to a clear conclusion that he was, as a result, not impartial on the issue as it might present itself to him in his role as a judge. The court concluded that there was nothing in the record that permitted the court to construe the justice's conduct as an express or implied promise to decide particular issues in a particular way or as an indication that he would be unwilling or unable to be impartial and follow the law if faced with a case in which abortion issues were presented

motion to disqualify

Former client may give a general description of the lawyer's previous services, and a judge may draw inferences about the type of confidences that ordinarily would be learned in that type of representation in a motion to disqualify hearing.

reprsentation of co-plaintiffs or co-defendants

If a lawyer jointly represents two clients who are both either plaintiffs or defendants in a lawsuit, their relationship is not one of direct adversity, but their interests might conflict anyway (i.e. passenger and driver in automobile accident may not be represented by a single lawyer). Disclosure • Conflicting testimony; • Conflicting settlement positions; • Attorney-client privilege; • Withdrawal in event of a conflict; • Confidentiality (information imparted to the lawyer by one co-client will be shared with the other co-clients if it is necessary for their representation).

public information

If the confidential information that a lawyer learned from the former client has become public, the lawyer is not precluded form representing the new client by the possession of that knowledge.

long term clients

If the lawyer represented the former client for a long period of time, it is more likely that the lawyer's prior representation would be found to be substantially related to the new matter.

firm

Includes lawyers in a partnership, professional corporation, sole proprietorship or other association as well as lawyers employed in a legal services organization or the legal department of a corporation or other organization. Lawyers who have separate practices but who share office space may be considered a law firm for conflicts purposes if their file management and communication might permit one lawyer in a suite to have access to confidential information about a matter being handled by another lawyer.

positional conflicts

Normally a lawyer may make inconsistent arguments on a legal issue in different courts at different times without running afoul of the conflicts rules. 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 interests (i.e. argue a case means x, and in a different proceeding argue it means y). Consider • Trial/appellate court? • Substantive/procedural? • Temporal relationship between the matters? • Practical significance of the issue to the immediate and long-run interests of the clients involved? • Clients' reasonable expectations in retaining the lawyer?

economic competitors

Simultaneous representation in unrelated matters of clients whose interests are only economically adverse does not ordinarily constitute a conflict of interest. Lawyer who has done extensive work for a company and knows its business secrets may breach her fiduciary duty by representing a competitor.

joining a new firm

The new firm hiring a lateral lawyer is obligated to check whether that lawyer's prior work, and sometimes her firm's prior work, conflicts with the obligations owed to clients of the lawyer's new firm.

acquiring confidences

To know if a lawyer has acquired material confidences, one must analyze the specific facts relating to the lawyer's access to or information about the relevant matter. Lawyer who had management responsibility at a former firm may be presumed to have received confidential information about all firm matters. A junior lawyer with no management duties had access to or information about only the matters that she worked on or perhaps only the matters handled by her department. Burden of Proof • Firm whose disqualification is sought should have the burden to prove that the lawyer who changed firms does not possess confidential information that is material to the new matter.

objective standard

Whether the lawyer, in the course of her work in the first matter, would normally have learned information that could be used adversely to the former client in the second. Matters are substantially related for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. Whether there is a substantial risk that the representation of the new client will involve the use of information acquired from representation of a former client.

effective screen

Whether the procedures adopted are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect. Whether the court is satisfied that the tainted attorney has not had and will not have any improper communication with others at the firm concerning the litigation.

Rule 1.8(f) & (g) compensation and aggregate settlement

Rule 1.8(f) and (g) • (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: o (1) the client gives informed consent; o (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and o (3) information relating to representation of a client is protected as required by Rule 1.6. • (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

Rule 1.10(a) prohibited representation

a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless • (1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm;

current government employee

o Rule: A current government lawyer is subject to Rule 1.7 (for concurrent conflicts) and Rule 1.9 (for former client conflicts) and cannot participate in a matter in which the lawyer participated personally and substantially while in private practice, unless the govern agency gives informed consent in writing, and cannot negotiate private employment with a person who was a party (or lawyer) in a matter in which the lawyer is participating personally and substantially (but law clerks may negotiate as permitted by Rule 1.12(b)).

a prospective client

o A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.

Advance waiver

o Agree in writing that a conflict is not presented by the firm's representation of certain clients or its work on certain matters o Validity How well the client understands the risks; How thorough and specific was the lawyer's initial disclosure of possible future conflicts; How much experience the client had had with the type of legal services being provided; Whether the client received independent legal advice before giving the advance waiver; Whether the conflict that arises is one that can be resolved by consent.

matter for confidential info for government employee

o Any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other matter that involves a specific part or parties. o Specific Party Rule 1.11 disqualifies lawyers only from work on matters involving a specific party or parties, rather than extending disqualification to all substantive issues on which the lawyer worked. o Broad Meaning Lawyer should consider the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed. What is the same matter is not necessarily defined by the boundaries of one litigation or other proceeding.

Both parties to a transaction

• A lawyer may represent both parties to a transaction, if it appears that the parties have a common goal. o If it appears that the clients' interests could conflict, the lawyer must obtain consent.

Guidelines (canons)

o Canon 1: A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety. Shall at all times act in a manner that promotes independence.... Should not allow personal interests to get involved when making decisions. o Canon 2: A judge shall perform the duties of judicial office impartially, competently, and diligently. Judges must not have personal interests in the cases that they adjudicate. Judges may not participate in organizations that discriminate. o Canon 3: A judge shall conduct the judge's personal and extrajudicial activities to minimize the risk of conflict with the obligations of the judicial office. o Canon 4: A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary. o Judicial Ethics: ABA Model Code of Judicial Conduct Not binding on state judges. Not binding on federal judges. • Bound by Code of Conduct for Federal Judges; issued by US Judicial Conference. • Applies to all federal judges except US Supreme Court justices. • Can face discipline or impeachment (by Congress). Judge may only be disciplined for violation of rule, not canons themselves.

types of conflicts of interest

o Conflicts that on close examination do not present a real risk of harm to one or more clients, so the lawyer may proceed without advising the client or asking for consent o Conflicts that may be adequately addressed if the affected clients are willing to provide consent after the lawyer explains all the potential problems o Conflicts that are so serious that even consent would not solve the problem, and the lawyer should turn down the second client, or withdraw

direct adversity

o Direct adversity to the interests of a client if the lawyer's conduct on behalf of one client requires the lawyer to act against the interests of another current client. o Applies to litigation, negotiation, cross-examination.

both parties to transaction: conflict

o If a conflict develops that will lead to litigation, a lawyer may not continue to represent both (or all) of the clients because that would involve the lawyer in suing one client on behalf of another in an adversarial situation Representation is allowed only with the consent of the former client. Consent of the continuing client might also be required under Rule 1.7 if the lawyer's obligations to the former client (such as protecting confidences) might materially limit the lawyer's continuing representation of the continuing client. Look for valid advance waiver.

Former client

o If a lawyer has not formally concluded representation of the client, a court might still find that the client is a present one and that a conflict with another client should be evaluated as concurrent. o A lawyer cannot fire a client to lower the conflicts bar on a new client. o May have more lenient successive conflicts standard if: The lawyer withdraws at the natural end point in the representation; The client fires the lawyer for reasons other than the impending conflict; The client triggers a conflict for the lawyer by some action that was unforeseeable to the lawyer The lawyer's withdrawal makes this client a former client The lawyer withdraws for good cause o It is unethical to intentionally "conflict out" an attorney or firm so that an adversary cannot use that lawyer's services.

client is corporation

o If a lawyer is engaged to represent a corporation, usually the lawyer's client is the corporation itself, not the officers or shareholders of the corporation, and not other corporations owned in part or whole by the corporation. o Lawyer does not represent a subsidiary or parent organization. If you represent an entity, you need to obtain information about other organizations and individuals that are related to the entity so that if you are asked to take on a matter adverse to one of the related persons or entities, you can evaluate whether there is a conflict.

objections

o If a lawyer objects to jointly representing defendants with conflicting interest and a court nevertheless requires the lawyer to continue, any resulting conviction may be overturned. o If no one objects to the representation of the defendants, a resulting conviction may nevertheless be overturned if the conflict significantly affected the representation. Cuyler v. Sullivan: There was no objection to joint representation at the time, but to overturn a conviction on Sixth Amendment grounds, the defendant must show that there was a conflict of interest that actually affected the adequacy of his representation; defendant need not demonstrate prejudice but only an adverse impact in the representation.

distinct inquiry from current clients

o If a present and former client's interests conflict, a lawyer should refer to Rule 1.7 for guidance on protecting the interests of the present client and to Rule 1.9 for guidance on protecting the former client's interests.

insurer may be client

o If insurer is also the client, then the lawyer must act in the best interests of the insurer and the insured, but must withdraw if this is not possible.

Rule 1.8(f) fee arrangement

o If the fee arrangement creates a conflict of interest for the lawyer, then the lawyer must comply with Rule 1.7. o The lawyer must also conform to the requirements of Rule 1.6 concerning confidentiality. o If it appears that a damage award may exceed the amount covered by an insurance policy, a conflict may exist.

adverse impact to former client only

o If the only adverse impact would be on the former client, a lawyer is always permitted to proceed with the new work if the lawyer can secure informed consent from the former client. o Conflicts that impact former clients raise a problem only if there is a substantial relationship between the work done for the former client and the new matter.

Insured is client

o If there is a conflict, the lawyer should act in the best interests of the insured, except that the lawyer may not assist client fraud. o Communications between the insured and counsel for the insured should be regarded as privileged and otherwise immune from discovery by the claimant or another party to the proceeding.

applies only to lawyers

o Imputation rules apply to conflicts presented by all lawyer in a firm but do not preclude representation based on conflicts presented by law clerks, paralegals, secretaries, or other non-lawyers.

Ex parte communications

o Judge is prohibited from initiating, permitting, or considering communications about a pending, or about to be filed, matter by the parties or their lawyers, unless all relevant parties or their lawyers are present. The judge must not engage in independent fact-finding.

role of judge

o Judge may refuse to allow joint-representation because of conflicts. o Judge must hold a hearing and advise both defendants to their right to separate counsel. May not be required to inquire about possible conflicts in joint representation of criminal defendants unless a conflict is apparent to a judge. o Where there is great risk of prejudice resulting from a conflict, a judge may disqualify counsel from representing co-defendants even if the co-defendants want to waive the conflict. Wheat v. United States: Court may disqualify a lawyer on the basis of an actual or potential conflict even if the defendant prefers to waive the conflict; disqualification would not violate a defendant's Sixth Amendment right to be represented by counsel of his choice.

both parties to transaction: legal advice

o Lawyer does not act as a mere scrivener but provides legal services as if representing only one client.

Employee confidences

o Lawyer generally has no duty to protect the confidences of employees. o Suggest Retain Independent Counsel Lawyer must advise the employee that a potential conflict exists and that the lawyer may have a duty to reveal the content of discussions with the employee to the managers of the organization; should decline to represent the employee and suggest that the employee obtain independent representation.

concurrent conflict

o Lawyer may not represent a criminal defendant and simultaneously represent a prosecution witness or the prosecutor.

screening allowed

o Lawyer moved from one firm to another; o One lawyer in a firm has a conflict of interest based on personal interest that does not present a significant risk of materially impacting the other lawyer's representation of the client; o Where a former nonlawyer employee has become a lawyer; o Where a former government lawyer entered a law firm; o Where a lawyer received confidential information from a prospective client who did not become an actual client; o Where a lawyer is disqualified from working on a matter because the lawyer previously worked on the matter as a judge, law clerk, arbitrator, mediator, or in some similar role.

nonconsentable conflict

o Lawyer must decline representation or withdraw from the matter. o May be the lawyer's determination or on a motion to disqualify by the opposing counsel.

unlawful employee conduct

o Lawyer should report misconduct of employees and corporate officers to higher authority within the organization (and the highest authority, if needed). o If the highest authority refuses to act properly, and the lawyer believes that the misconduct will result in substantial injury to the organization, the Model Rules now permit the lawyer to reveal the misconduct to public officials. o Model Rules do not permit revelation to outside entities if the organization retained the lawyer to investigate the misconduct or to defend the organization or its employees against a claim arising out of an alleged violation of law.

Representing employees

o Lawyer who represents an organization may represent a member or an employee of the organization unless the interests of the organization and the individual conflict, in which case the lawyer may proceed only with the consent of the affected parties. o Consent Designated corporate official can give consent, so long as that person is not the person being represented. o Generally should not undertake representation of shareholders.

boards of directors

o Lawyers may sit on the boards of directors of organizations they represent. o If a conflict arises that presents a substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's obligations as a director, the lawyer should cease to represent the corporation on that matter unless the organization waives the conflict.

adequate screening

o Matter on which the lawyer participated personally and substantially. o Matter on which the lawyer learned confidential government information and could use that information to the material adversity of another party.

informed consent

o Must communicate to a client all the information needed to understand the possible adverse effects that might befall the client if she waives the conflict. o Rule 1.0 defines informed consent to refer to an agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonable available alternatives to the proposed course of conduct. o Lawyer must orally explain to the client the risks, advantages, and possible alternatives to the lawyer going forward with the representation. Oral consent is okay but must later be confirmed in writing. o Client may withdraw consent.

imputation

o Other lawyers in the firm may continue to represent the current client (1) if both the current and prospective clients give informed consent; or (2) if (a) the lawyer who received the potentially damaging information took steps to prevent being expos to more than the necessary amount of information to determine whether the firm could represent the client, (b) the disqualified lawyer is screened from contact with the matter, and (c) written notice of the conflict is given to the prospective client

Personal and substantial participation

o Personal and substantial participation, exercised through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise. o Personal To participate personally means directly, and includes the participation of a subordinate when actually directed by the former government employee in the matter. o Substantial Substantially means that the employee's involvement must be of significance to the matter, or form a basis for a reasonable appearance of such significance. Requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. o Participation should be related to a particular matter involving a specific party.

role of prosecutor

o Prosecutor may move to disqualify the defense lawyer from representing one or more of the co-defendants.

material limitation

o Requires more than a mere possibility of harm.

informed consent and adequate representation

o Restatement: A lawyer may not represent criminal co-defendants unless the clients give informed consent and it is reasonably likely that the lawyer will be able to provide adequate representation to the clients.

withdraw from current client

o Rule 1.18(c) bars a lawyer from continuing to represent a current client if she receives information from a prospective client that could be significantly harmful to her if it were revealed to the other client.

Former government employees rule

o Rule: A lawyer who formerly served as a government employee is subject to Rule 1.9(c) (prohibiting adverse use and disclosure of confidential information of a former client), and shall not represent a client in connection with a matter in which the lawyer participated personally and substantially as a government employee, unless the government agency gives informed consent in writing. o Rule: When a lawyer who formerly served as a government employee is disqualified, his firm cannot represent a client in a matter in which the lawyer participated personally and substantially unless the lawyer is screened, receives no part of the fee, and notice is given to the government agency.

confidential info for former gov't employee

o Rule: A lawyer who has confidential information about a person acquired as a government employee cannot represent a client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.

material adversity

o Rule: If the subsequent use of confidences would not harm the former client's interests, consent is not required. o Rule: Material adversity is limited to potential harm to the type of interests that the lawyer sought to advance on behalf of the former client; if the new matter is adverse to the interests of a former client that are unrelated to the lawyer's previous work, this would not constitute material adversity. (Restatement) Contrast ABA: Direct Adversity Standard Under Rule 1.7

substantial relationship

o Rule: No consent is required unless the new matter is the same or substantially related and the new representation is materially adverse to the interests of the former client.

economic competitors in conflict of interest

o Rule: Ordinarily, representation of economic competitors poses no serious conflict of interest. Exception: If a firm learned a great deal about the operation of the former client and that information could be used on behalf of a competitor to the disadvantage of that former client, the firm could have a serious conflict.

former firm represented previous client

o Rule: Under Rule 1.9(b), which applies to lawyers whose former firms represented the prior client, consent is not required unless the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter.

divorce

o Some States: Allow a lawyer to represent both parties in an uncontested divorce. o Some States: Forbid a lawyer from representing both husband and wife in the suit for divorce, but permit a lawyer to assist both parties in preparing a settlement agreement, so long as the clients agree and the resulting settlement seems fair. o Some States: Do not allow a lawyer to represent both husband and wife in any divorce action, even with the consent of both spouses.

estate planning

o Some authorities urge that joint representation of two clients should include an agreement that information shared by one is not to be held in confidence from the other. o Florida Bar Opinion 95-4 (1997) Husband revealed to lawyer that he executed a codicil that makes a substantial beneficial disposition to a woman with whom Husband has been having an affair; wants to know about wife's rights of elections if she survives Husband. Rule prohibits lawyer form disclosing information to the wife. If husband fails to disclose the subject information to wife, lawyer is not ethically required to disclose the information to the wife and does not have discretion to reveal the information.

bases for disqualification

o Subsequent work involves a matter in which the government lawyer was personally and substantially involved while in the government (can be cured by agency consent). Allows screening to avoid imputation. o Subsequent work could involve use of confidential government information about a person known to the lawyer in a way that would materially disadvantage that person (cannot be cured by consent). But allows screening to avoid imputation.

confidentiality and prospective client

o The lawyer may not use or reveal information learned from a prospective client except to the extent permitted by Rule 1.9

settlement

o The lawyer's professional obligations to the insured should govern the lawyer's conduct in the event of a dispute about settlement . o ABA Opinion 96-403 concludes that if the insurer and the insured disagree about whether to settle, the lawyer must withdraw from representing both of them in the matter.

both parties to transaction: duty of loyalty

o There is no attorney-client privilege between the parties. o Lawyer should not keep confidences received from one joint client from the other. Lawyer might reasonably conclude that she could keep one client's trade secrets confidential from another client without adverse impact on her representation of the clients in a joint venture.

Noncontestable conflicts

o Whether she reasonably believes that she will be able to provide competent and diligent representation to the relevant clients. Reasonable Lawyer Standard If the conflict could only adversely impact a former client, the conflict is consentable. o Whether the representation is prohibited by law. o Whether the representation involves litigation in which the lawyer is representing one client against another client whom the lawyer is representing in the matter.

both parties to transaction: objective standard

o Whether there is an actual or potential conflict that is reasonably apparent to the lawyer. o Whether the lawyer knew or should have known at the time of undertaking the representation.

employers and immigrant employees

• A lawyer who represents an employer should advise the immigrant employee to retain independent counsel, and that confidences may not be protected.

plaintiffs in class actions

• Conflicts among the members of the class or between the clients' interest and the lawyer's personal interests. • Unique Issues o In suits for money damages, class members are notified of the lawsuit and permitted to withdraw from the class if they wish to preserve their right to sue individually. o Courts usually evaluate the conflict by applying the court's class action rules, particularly the rules requiring lawyers for the class to be adequate representatives of the class as a whole. o Unnamed class members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying 1.7(a)(1).

parties to aggregate settlements

• Defendants often offer the plaintiff's lawyer a single large lump sum to settle all of the cases because the defendants would prefer to accept a large loss of known dimension than to face successive jury trial or individual negotiations that could lead to trials. • Rule 1.8(g) o Require lawyers to disclose to each client the total amount of the settlement, the details of every other client's participation in the aggregate settlement, and the amount of fees and costs to be paid to the lawyer from the settlement. o Lawyer must first obtain informed consent from all his clients to share confidential information among them. o Should advise each client that if any client refuses the settlement offer, the defendant may withdraw it.

current government employees

• Present government lawyers are subject to the restrictions of Rule 1.9(a) in addition to those stated in Rule 1.11. o Also subject to Rule 1.7 and Rule 1.9(c).

Rule 1.8: Conflict of Interest: Current Clients: Specific Rules

• Rule 1.8 Conflict Of Interest: Current Clients: Specific Rules o (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction. o (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. o (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship. o (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. o (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. o (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6. o (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. o (h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. o (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and (2) contract with a client for a reasonable contingent fee in a civil case. o (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced. o (k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

Rule 1.1- Imputation of conflicts of interest: general rule

• Rule 1.10 Imputation Of Conflicts Of Interest: General Rule o (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless (1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or (2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer's association with a prior firm, and • (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; • (ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and • (iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures o (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. o (c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7. o (d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

firm

• Rule 1.10 Imputation Of Conflicts Of Interest: General Rule o (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless (1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or (2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer's association with a prior firm, and • (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; • (ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and • (iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures o (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. o (c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7. o (d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

Rule 1.11 Special conflicts of interest for former and current government officers and emplyoees

• Rule 1.11 Special Conflicts Of Interest For Former And Current Government Officers And Employees o (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government: (1) is subject to Rule 1.9(c); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. o (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule. o (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information" means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. o (d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9; and (2) shall not: • (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or • (ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b). o (e) As used in this Rule, the term "matter" includes: (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and (2) any other matter covered by the conflict of interest rules of the appropriate government agency.

Rule 1.13: Organization as a client

• Rule 1.13 Organization As Client o (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (you are only representing the entity, not the people working there. Client is always the company. The employees, as representatives, will direct the lawyer on how what to do). o (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law o (c) Except as provided in paragraph (d), if (1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. o (d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law. o (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal. o (f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing. o (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

Rule 1.18 Duties to a Prospective Client

• Rule 1.18 Duties To Prospective Client o (a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. o (b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client. o (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). o (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and • (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and • (ii) written notice is promptly given to the prospective client.

Rule 1.9: Duties to Former Clients

• Rule 1.9 Duties To Former Clients o (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. o (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. o (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Representing when judge or other adjudicator

• Rule: A lawyer cannot represent anyone in a matter in which the lawyer participated personally and substantially as a judge, adjudicative officer, law clerk, arbitrator, mediator or third party neutral unless all parties give informed consent in writing. • Rule: A lawyer cannot negotiate for employment with any person who was a party (or lawyer) in which the lawyer was participating personally and substantially as a judge (etc.) except a law clerk may negotiate under these rules but only after notifying the judge (etc.) • Rule: If a lawyer is disqualified under these rules, the firm cannot represent that party unless the lawyer is screened and notice is given to the appropriate tribunal.

Rule 1.7 Current clients

• Rule: A lawyer shall not represent a client if there is a concurrent conflict of interest, where the representation of one client is directly adverse to another client, or there is a significant risk that the lawyer's responsibilities to a current client will be materially limited by the lawyer's responsibilities to another client, former client, or third person, or the personal interest of the lawyer. The lawyer may nonetheless represent if the lawyer (1) reasonably believes she will be able to provide competent and diligent representation to each client; (2) the representation is not prohibited by law; (3) the representation does not involve a claim by one client against another in the same litigation or other proceeding; and (4) each affected client gives consent confirmed in writing.

Former clients rules

• Rule: A lawyer who has formerly represented a client shall not represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent in writing. • Rule: A lawyer shall not represent a person in the same or substantially related matter in which the lawyer's previous firm represented a person whose interests are materially adverse to that persona and about who the lawyer acquired confidential information protected by Rules 1.6 and 1.9(c) unless the former client gives informed consent in writing. • Rule: If the lawyer does have confidential information about a former client, he shall not use the information to the disadvantage of the former client (unless the Rules permit or the information is generally known) or reveal the information except as the Rules permit.

propsective clients rule

• Rule: Even though there is no lawyer-client relationship, a lawyer who has learned information from a prospective client shall not use or reveal that information. The lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, but another lawyer in the firm may represent if both clients give informed consent, confirmed in writing, the lawyer took measures to avoid disclosure, is screened from participation, and notice is given to the prospective client.

Rule 1.7 clients' conflict of interest

• Rule: In a situation where a former client's interests conflict with a current client's interest, the lawyer must inspect the conflict with regard to the current client under Rule 1.7.

Imputation

• Rule: While lawyers are working in a firm, they cannot knowingly represent a client when any of them practicing alone would be prohibited by Rules 1.7 and 1.9 from doing so, unless the prohibition is based on personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by remaining lawyers in the firm; or the prohibition is based on Rule 1.9(a) or (b) and arises out of the disqualified lawyer's association with a prior firm and the disqualified lawyer is screened and notice is given to affected former client.

6th amendment

• Sixth Amendment o In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense. o This means the right to have a court-appointed lawyer who is free of conflicts

Concurrent conflicts of interest

• There may be a conflict of interest between two current clients of the lawyer, or between a current client and a prospective client, or between two joint co-clients.