Conflicts of Interest
Conflicts of Interest General Rule = A conflict of interest is involved if there is . . .
"A conflict of interest is involved if there is a substantial risk that the lawyer's representation of the client would be materially and adversely affected: 1) by the lawyer's own interests OR 2) by the lawyer's duties to another current client, a former client, or a third person." (Restatement §121)(emphasis added)
Conflicts of Interest Successive/Former Clients "Playbook" Information
"Playbook" Information May Create Substantial Relationship A lawyer who has represented a client and learned how the client tends to respond to legal issues may acquire "playbook" knowledge that he can use unfairly against the former client.
Conflicts of Interest Successive/Former Clients "Substantial Relationship" Test for Successive Client Conflicts - 2 Options - If there is no substantial relationship, then . . .
"Substantial Relationship" Test for Successive Client Conflicts The matters are "substantially related" OR "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." ^^^^ NOT actual knowledge, just possibility of learning If there is no substantial relationship, then a lawyer may sue a former client without consent.
Conflicts of Interest Imputation Gov't Lawyers Moving into Private Practice - Definition of a "Matter" - What does not count as a "matter"? - When deciding if something is a "matter" consider . . .
"matter" = a specific set of facts involving some specific parties ---> "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" (plus anything else that's covered under the conflict of interest rules of the government agency in question). Regulation is NOT a matter Drafting a regulation that applies to the public or a segment of the public doesn't qualify as a matter When deciding if something is a "matter" consider all the facts, like cases that involve the same basic facts, the same or related parties, and the time elapsed
Conflicts of Interest Conflicts w/ Court Obligations Lawyers as Witnesses 3 Circumstances Under Which Lawyer May Testify
A lawyer is not permitted to act as an advocate at a trial in which the lawyer is likely to be a necessary witness UNLESS: i) The testimony relates to an uncontested issue; ii) The testimony relates to the nature and value of legal services rendered in the case; or iii) Disqualification of the lawyer would work substantial hardship on the client. MRPC 3.7(a).
Conflicts of Interest Imputation Gov't Lawyers Moving into Private Practice - A former government lawyer CANNOT represent representing a client in private practice . . . UNLESS
A former government lawyer CANNOT represent representing a client in private practice in a matter in which the lawyer participated personally and substantially as a government lawyer [aka actual knowledge] UNLESS the appropriate government agency gives its informed consent, confirmed in writing, to the representation. NO adversity necessary
Conflicts of Interest Imputation Gov't Lawyers Moving into Private Practice - A government lawyer who receives _____________________ MUST NOT later represent a private client whose interests are adverse to ______________. - Definition of a "confidential government information" (3 Elements, one has two options) - This conflict rule applies EVEN where . . .
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 if the information could be used to the material disadvantage of the person. "Confidential government information" 1) info gained under government authority AND 2A) which the government is prohibited from revealing OR 2B) has a privilege not to reveal AND 3) otherwise NOT available to the public. Examples = Grand jury evidence, Information from government investigations, such as SEC or EPA, and tax returns, trade secrets, etc. ---> If information is available to the public through a channel like the Freedom of Information Act, it is NOT considered confidential government information. This conflict rule applies EVEN where the lawyer is not taking a position adverse to the government agency.
Conflicts of Interest Successive/Former Clients - A lawyer must not represent a new client whose interests are . . . (2 Elements) - Waivable? - Definition of "substantially related" matters (2 options) - On firm knowledge of material confidential material & seeking consent
A lawyer must not represent 1) a new client whose interests are materially adverse to those of a former client 2) in a matter that is substantially related to a matter in which the lawyer represented the former client Matters are "substantially related" IF (i) they involve the same transaction or legal dispute ---> If a lawyer routinely handled a type of problem for a former client, then the lawyer may later oppose that former client in a factually distinct problem of the same general type OR (ii) there is a substantial risk that confidential factual information as WOULD normally have been obtained in the prior representation would materially advance the new client's position. On firm knowledge of material confidential material & seeking consent If no one left at the firm has knowledge of material confidential information about a former client, then the firm does not need to seek consent to start representation with a new client who may be adverse to the former client
Conflicts of Interest Concurrent Clients Waiver/Exception to Disqualification 4 Elements to Allow Representation Despite CC [MRPC 1.7.]
Concurrent Conflict Exceptions Lawyer may represent a client in spite of a concurrent conflict of interest IF i) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client AND ii) The representation is not prohibited by law AND iii) The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal AND iv) Each affected client gives informed consent, confirmed in writing.
Conflicts of Interest Conflict of Interest Analysis: The Four "C"s
Conflict of Interest Analysis: The Four "C"s Client? = Is there an attorney-client relationship? (none, past, prospective, current) Conflict? = Is there a conflict? What is the source? (potential, concurrent, successive) Consentable? = Is the conflict consentable? Consented? = If consentable, has consent been properly obtained?
Conflicts of Interest Consentable Conflicts
Current vs. Former Client Conflicts = Contestable - If conflict is contestable, can ask for consent if one declines, then cannot take on or continue to continue to represent Must explain all possible adverse effects, and should explain risks, advantages, and possible alternatives to litigation
Conflicts of Interest Current Conflicts Positional Arguments - Definition of Positional Arguments - A positional argument creates a conflict of interest if there is . . .
Definition of Positional Arguments Positional arguments are arguments in which you use certain arguments and take opposite positions in different suits and actions [Rule 1.7, Comment 24] ---> Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. ---> 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 When Positional Arguments & Concurrent Client Representation Conflict Significant Risk + Material Limitation A positional argument creates a conflict of interest if there is 1) a significant risk that a lawyer's action on behalf of one client 2) will materially limit the lawyer's effectiveness in representing another client in a different case Five Factors to Determine if Positional Argument Poses a Significant Risk to Concurrent Client Representation 1) JX - where the cases are pending Example = If one client is in trial court and the other in appellate court arguing different positions, then the client in trial might have to abide by precedent created by the other case 2) Whether the issue is substantive or procedural 3) the temporal relationship between the matters 4) the significance of the issue to the immediate and long-term interests of the clients involved 5) the clients' reasonable expectations in retaining the lawyer.
Conflicts of Interest: Concurrent Clients Direct Adversity Element - Definition
Direct adversity = exists when a lawyer represents one client in a matter adverse to another current client, even where the lawyer represents the clients in unrelated matters. - Applies to litigation and transactional matters. - Even with client consent, a lawyer must not assert a claim on behalf of one client against another client represented by that lawyer in the same litigation (or other proceeding before a tribunal).
Conflicts of Interest 5 Types of Interests That Might Interfere with Client Interests
Five Types of Interests That Might Interfere with Client Interests 1) The lawyer's self-interest ---> Personal interests ---> Financial Interests 2) The lawyer's duty to other current clients 3) The lawyer's duty to former clients 4) Lawyer's duties to prospective clients 5) Lawyer's duty to non-client third parties
Conflicts of Interest Imputation Former Judge, Arbitrator, Mediator or Other Third-Party Neutral Moving into 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 UNLESS . . .
Former Judge, Arbitrator, Mediator or Other Third-Party Neutral 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.
Conflicts of Interest Current Conflicts Conflicts Representing Multiple Parties - 4 mandatory steps to decide if a lawyer can continue to represent them - A lawyer MUST withdraw from the joint representation IF . . . - A lawyer MAY continue to represent one consenting client, but ONLY IF . . .
Four mandatory steps to decide if a lawyer can continue to represent them (i) analyze the facts to determine if she can effectively represent both clients, (ii) disclose the potential conflict to both clients, (iii) invite them to give her informed consent and (iv) consider whether a reasonable lawyer would advise these clients to consent. A lawyer MUST withdraw from the joint representation IF a reasonable lawyer would have to advise either of clients NOT to consent. The 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. Rule applies to both litigation and non-litigation matters.
Conflicts of Interest Concurrent Clients A concurrent conflict of interest exists if . . . (2 options and one with 2 elements)
General Rule In general, a lawyer must not represent a client if doing involves a concurrent conflict of interest. Definition of Concurrent Conflict A concurrent conflict of interest exists if: 1) Directly adversity between clients OR B) Significant risk that lawyer's personal interests will materially limit 1) the representation of the current client OR 2) responsibilities to another client, a former client, or a third person.
Conflicts of Interest Successive/Former Clients Conflicts & Lawyers in Other Roles Partisan Arbitrators - General Rule - Exception
Generally, an attorney who personally and substantially participates as an arbitrator may not represent anyone in connection with the matter arbitrated, UNLESS all parties to the proceeding give informed, written consent. Exception However, this restriction does not apply to an arbitrator selected as a partisan of a party in a multi-member arbitration panel.
Imputation Gov't Lawyers Moving into Private Practice - A former government officials and employees are conflicted under two distinct circumstances - Are these circumstances consentable/waivable? - These rules apply EVEN IF . . .
Gov't Leaving Gov't for Private Practice Government officials and employees are conflicted under two distinct circumstances: 1) Participated personally and substantially ---> CAN be consented if the government agency give informed consent, in writing 2) Obtained "confidential government information" that can be used to benefit a private client whose interests are adverse to that person's disadvantage. ---> CANNOT consent These rules apply EVEN IF you were not serving as a lawyer during your government service
Conflicts of Interest Successive/Former Clients Screening for Successive Client Conflicts - The general presumption is . . . - So if a client files a disqualifying conflicts challenge, the migratory lawyer has the burden to show . . . - General Presumption in Permissive vs. Mandatory Screening Jurisdictions
If there is no substantial relationship, then a lawyer may sue a former client without consent. ---> However, the general presumption is that migratory lawyer DID acquire confidential info ---> So if a client files a disqualifying conflicts challenge, the migratory lawyer has the burden to show she received no confidential information about the client from the previous firm. General Presumption in Permissive vs. Mandatory Screening Jurisdictions - In jurisdictions that permit nonconsensual screening, the presumption that the migratory attorney will share the information with her new colleagues CAN defeated the presumption by a proper and timely screening VS. - In jurisdictions the do not allow nonconsensual screening, if the attorney has learned confidential information about the complaining client, the presumption of sharing information CANNOT be defeated, the migratory attorney and her new law firm are disqualified.
Conflicts of Interest Current Conflicts Positional Arguments - 5 Factor to Determine if Positional Argument Poses a Significant Risk to Concurrent Client Representation - If there is significant risk of material limitation, the lawyer must . . . UNLESS
If there is significant risk of material limitation, the lawyer must refuse one of the representations or withdraw from one or both matters UNLESS she gets informed consent of the affected clients
Conflicts of Interest Concurrent Clients Corporate/Organizational Entities Sexual Relationships - If you represent an organization (in-house/outside counsel), then you CANNOT have a sexual relationship with . . .
If you represent an organization (in-house/outside counsel), then you CANNOT have a sexual relationship with anyone with supervises, directs, or regularly consults with you about legal matters
Conflicts of Interest Imputation Imputation of Personal Conflicts
In general, if one attorney in a firm is prohibited by the conflict-of-interest rules from representing a client, that prohibition applies to all other attorneys in the firm. If the prohibition is based on a personal interest of the disqualified attorney and does not present a significant risk of materially limiting the representation of the client by the remaining attorneys in the firm, then the disqualified attorney's conflict will not be imputed to the firm.
Conflicts of Interest Concurrent Clients Substantial Risk Element Definition of Material Limitation
Material Limitation = when there's a conflict between lawyer's other duties and responsibilities that might undermine the lawyer's ability to fully represent the client's interests. •Loyalty to another client •Loyalty to a former client •Lawyer's own financial interests •Lawyer's relationship with a third-party or organization ---> impact on ability to give informed consent can be a helpful indicator Part of the significant risk element
Conflicts of Interest: Prospective Clients Disqualification Two main elements A lawyer shall not represent another client with . . .
Materially Adverse + Same or Substantially Related Matter A 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 [2 exceptions, one with 2 sub-elements]
Conflicts of Interest Imputation Gov't Lawyers Moving into Private Practice Negotiating Post-Gov't Employment - Gov't lawyers CANNOT negotiate for private employment with . . . - EXCEPT if the lawyer is serving as . . . - ___________ may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, BUT ONLY after . . .
Negotiating Post-Gov't Employment - Gov't lawyers CANNOT 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 if the lawyer is serving as a law clerk to a judge, other adjudicative officer or arbitrator, then they MAY negotiate for private employment - A law clerk may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, BUT ONLY after the lawyer has notified the judge or other adjudicative officer.
Conflicts of Interest Imputation Gov't Lawyers Moving into Private Practice - Three-Part Screening Protocol
Screening Gov't Lawyers Going Into Private Practice When a lawyer is disqualified from representation because they personally and substantially worked on a matter or gained confidential government information, 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 AND (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule. AND (3) gov't lawyers subject to Rule 1.7 AND 1.9
Conflicts of Interest Imputation Political Candidates & Naming
The name of a lawyer holding a public office is not permitted to be used in the name of a law firm, or in communications on its behalf, during ANY substantial period in which the lawyer is not actively and regularly practicing with the firm. - Doesn't matter if elected official consents - Notification of the firm's clients and the public at large does NOT permit the firm to continue to use a politician's last name in the firm's name when she will not be actively and regularly practicing with the firm - lawyer must actively and regularly practice with the firm
Conflicts of Interest Imputation Private Practice Lawyers Moving Into Gov't - Which imputation rules apply?
The ordinary conflict rules apply to a lawyer who enters government service after private practice or other nongovernmental work.
Conflicts of Interest Imputation When Lawyers that Share Offices Impute Conflicts Determining Imputation Guiding Question
The test for determining if lawyers who share office facilities are considered associated for purposes of imputation of conflicts of interest Key Question --> Are there reasonably adequate measures to protect confidential client information so that it will not be available to other lawyers in the shared office?
Conflicts of Interest Successive/Former Clients Two general kinds of conflicts
Two general kinds of successive/former client conflict situations: - Side-switching former client problems - Migratory lawyer problems
Conflicts of Interest Prospective Clients Waiver/Exceptions to Disqualification When the lawyer has received disqualifying information from a prospective client, representation is permissible if . . . (2 elements, one with 2 sub-elements)
When the lawyer has received disqualifying information from a prospective client, 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.
Conflicts of Interest Successive/Former Clients - Are conflicts waivable? - Are can you "cure" conflicts?
Yes, waivable IF the former client can give informed consent, confirmed in writing Unlike concurrent conflicts, a lawyer can cure always cure a former client conflict with consent.
Conflicts of Interest Imputation Gov't Lawyers Moving into Private Practice - Definition of "personally and substantially" - Definition of "personally" Definition of "substantially"
§ A lawyer "personally and substantially" participated if she could make a "decision, approval, disapproval, recommendation, then rendering advice, investigation, or otherwise" "personally" = directly, includes participation of a subordinate when actually directed by former gov't lawyer in the matter ---> participation related to a "particular matter involving a specific party" "substantially" = gov't lawyer's involvement must be of significance, or form a reasonable basis for appearance of such significance ---> More than official responsibility, knowledge, perfunctory involvement, or involvement in an administrative or peripheral issue ---> However, a single act of approval or participation in critical step can be substantial
Conflicts of Interest 3 Non-consentable Conflicts
•Representing one client against another client in the same litigation. •Reasonably believes that she will be unable to provide competent and diligent representation. • Prohibited by law
