Pro Res Final

The Comment to Rule 1.11, "Special Conflicts of Interest for Former & Current Government Officers & Employees" offers several policy interests that the rule seeks to balance. Which of the following is NOT one of the state policy interests?

"If experience in government service makes lawyers excessively marketable thereafter in the private sector, or results in excessive financial rewards for lawyers with government experience once they enter the private sector, lawyers may enter government service for the wrong reasons or out of self-interest, rather than acting in the public interest."

The ABA Comment to Model Rule 1.7 (entitled "Conflict of Interest: Current Client") mentions a few reasons that, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. Which of the following, though probably true, is NOT one of the reasons identified in the Comment?

Any time that the lawyer bills for the matter would simultaneously go to both clients, meaning the lawyer inevitably will engage in double billing and receive double fees for every hour worked on the case.

Attorney serves as the lawyer for a corporation and also is a member of its board of directors. Which of the following is true regarding this situation?

Attorney must advise the other board members that in some circumstances, matters they discuss at board meetings while Attorney is there as a fellow director would not be protected by the attorney-client privilege in later litigation;and that conflict of interest considerations might require Attorney's recusal as a director, or might require Attorney to decline representation of the corporation in a matter.

Client owns a partnership share of a closely-held business, and the other partners vote to impose an involuntary buy-out of Client in order to remove him from the firm. Client is very upset about this, but the partnership agreement clearly permits involuntary buyouts by a majority vote of the other shareholders. Client hires Attorney to represent him in the buyout transaction, to review the necessary documents and provide legal counsel about it. No litigation is under consideration yet. Attorney's sister is also a lawyer in that city, at another firm, and the sister represents the other shareholders in the partnership. Attorney did not disclose that her sister represented the other partners, as she and her sister are not close and rarely speak, and the matter is unlikely to turn into litigation. Is Attorney, or the other lawyers in her firm, subject to disqualification in this matter?

Attorney would be subject to disqualification, but ordinarily the other lawyers in her firm would not be subject to disqualification.

Which of the following is true about conflicts of interest, according to the Model Rules of Professional Conduct?

Most conflicts are waivable by clients, but only if the clients provide informed consent in writing, and there are three types of conflicts that are nonconsentable

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired Attorney for a substantially higher salary, and Attorney accepted the position and left her government position. One of Attorney's first assigned cases at Big Firm was a new action by Client against Conglomerate Corporation. Attorney had worked on an enforcement against Conglomerate Corporation and learned confidential governmental information about the entity during the litigation, but Attorney does not know, and has no reason to know, that the information is confidential government information. Attorney is under the reasonable impression that all the information she learned about Conglomerate Corporation is now public information. The government agency gives its informed consent, confirmed in writing, to the representation. Is Attorney nevertheless subject to disqualification in Client's matter against Attorney's former employer?

No because Attorney does not have confidential government information about Conglomerate that she knows is confidential government information.

A municipal election for a seat on the city council was very close one year, resulting in a run-off election that was ever closer. Both candidates claimed victory and each accused the opposing candidate of voter fraud and violations of various election rules. There is potential for litigation if the two cannot agree as to a winner in the election, with one or the other conceding. Attorney is a prominent lawyer in the community and has previously represented each candidate in various legal matters. Both candidates would like to hire Attorney to represent them in negotiating a resolution to the election. Each candidate fully understands their adverse interests and the potential conflicts of interest for Attorney, but each is willing to provide written informed consent in order to have Attorney represent them both in facilitating the negotiations. May Attorney represent both candidates in this negotiation?

No, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, even in a negotiation.

After law school, Attorney worked for two years as a judicial clerk for a federal district judge. A few months before her clerkship was to end, Attorney applied for positions at several law firms in the area and interviewed with them for a position as an associate. All of these firms had matters pending before the federal district court, but Attorney did not tell the firms that she was aware that they had some matters on her judge's docket, and the interviewers at the firms did not bring up that they were appearing regularly before the judge that currently employed Attorney as a clerk in chambers. In each case, however, the employers were impressed that Attorney had obtained a judicial clerkship and asked her general questions about how she liked her experience at the courthouse. Attorney submitted to each firm a recommendation letter written on her behalf from the judge before whom they had pending matters. The judge knew that Attorney was interviewing with these firms and did not object or correct her about it at all. Is Attorney subject to discipline for seeking employment with firms that have pending matters before the judge for whom she works as a clerk?

No, a lawyer serving as a law clerk to a judge, other adjudicative officer, or arbitrator may negotiate for private employment in the manner described here.

Attorney began her career as a prosecutor at the District Attorney's Office. During her tenure as a prosecutor, she brought charges against an individual suspected of sending ricin, a deadly toxin, in an envelope to a prominent politician, apparently in an unsuccessful attempt to assassinate the public official. The jury found the evidence too attenuated, and acquitted the defendant. Shortly thereafter, another person, who was a member of a terrorist organization, confessed to sending the ricin and provided extensive evidence of his plot to kill the politician to make a political statement. Attorney resigned from the District Attorney's Office partly out of humiliation over this case, and went into private practice. Eighteen months later, the accused individual decides to sue the government over wrongful arrest, slander, libel, and wrongful prosecution over the case in which he obtained an acquittal. Attorney feels that her superiors at the D.A.'s Office had pressured her to press charges in order to satisfy the public uproar over the ricin letters, despite having scanty evidence that the accused individual was actually guilty. Attorney offers to represent the accused individual in his lawsuit against the government, partly to make amends or atone for her role in what she now views as an abuse of government power and a great injustice. Would it be proper for Attorney to handle this case, given her good intentions?

No, a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction.

Attorney spent several years working for Big Firm in its business litigation division. While there, Attorney represented Client in an action against Conglomerate Corporation alleging unfair trade practices and antitrust violations. Attorney eventually left Big Firm and accepted a position at a federal regulatory agency. There, Attorney's first assignment was to bring an enforcement action against Conglomerate Corporation for violating antitrust laws and unfair trade practice laws. Attorney obtained written informed consent from his previous Client to pursue a related matter against Conglomerate, but not from the agency itself or from Conglomerate Corporation. Is it proper for Attorney to represent the government in an enforcement action against his prior opponent, if the matter is substantially related?

No, a lawyer who has pursued a claim on behalf of a private client may not pursue the claim on behalf of the government, unless the appropriate government agency gives its informed consent, confirmed in writing.

Attorney spent several years working for the state Office of the Attorney General in its environmental litigation division. While there, Attorney began a case against a scrap metal facility for burying toxic materials on its grounds. Attorney then left government service and went to work for Big Firm. There, Attorney began representing a group of neighboring landowners in a lawsuit against the same scrap metal facility over the same burying of toxic material, as it had polluted the groundwater and had migrated to adjacent properties underground. Is it proper for Attorney to represent these plaintiffs?

No, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency.

Two co-plaintiffs in a personal injury lawsuit hired Attorney to represent them in the matter. The litigation promised to become very complex, with multiple issues pertaining to liability and multiple potential defendants. Attorney had each client sign a detailed "waiver of present and future conflicts of interest" form and carefully explained the specific types of conflicts that can arise between co-plaintiffs in tort litigation, such as indemnification claims, cross-claims, adversarial positions in response to counterclaims from defendants or third-party interveners, and so on. In addition, Attorney encouraged both clients to consult with separate lawyers for consenting to the conflicts, and both do so. Moreover, both plaintiffs were themselves lawyers and were very familiar with the potential conflicts of interest that could arise from this common representation. Attorney reasonably believed that she would be able to provide competent and diligent representation to each affected client. As the trial date approached, a counter-claim by one of the defendants forced one plaintiff to file a cross-claim for indemnification against the other. Will the written, informed consent to potential conflicts that each client signed be effective in this situation, so that Attorney does not have to withdraw from the representation?

No, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable, such as the assertion of a claim by one client against another client represented by the lawyer in the same litigation

Attorney, who often serves as a court-appointed mediator, was appointed to mediate the divorce case between Husband and Wife. The case settled in mediation and the divorce was finalized soon after. A year later, Husband sought to retain Attorney to represent him in a modification suit against Wife. Attorney accepted the case and sent a letter to Wife advising Wife that Attorney had been retained by Husband to represent Husband in a modification suit. Are Attorney's actions proper?

No, an attorney who previously served as a third-party neutral is required to obtain informed consent, confirmed in writing, from all parties to the proceeding prior to representing a party in a suit connected to the previous matter.

Attorney was a state hearing officer for the Workers Compensation Board. Attorney left that position and opened his own law firm, primarily representing parties before the state Workers Compensation Board. One of the cases is the final rehearing of a case in which Attorney had presided as hearing officer at an initial preliminary hearing and ruled on preliminary matters, but Attorney left the Board without issuing any final decision in the case and the Board transferred the matter to another hearing officer. Attorney represents the injured worker, Client, and the employer is Manufacturer. All the parties involved give informed consent, confirmed in writing, for Attorney to represent Client. Is Attorney subject to discipline for representing Client in this matter?

No, as all the parties involved provided informed written consent to the representation, despite the obvious conflicts of interest at stake.

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired Attorney for a substantially higher salary, and Attorney accepted the position and left her government position. One of Attorney's first assigned cases at Big Firm was a new action by Client against the same government agency for which Attorney had previously worked, defending against an enforcement action that Attorney had initiated while at the agency. The defense will involve challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, Attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in Client's challenge, but instead worked exclusively on enforcement litigation matters. The government agency refuses to consent to Attorney representing Client, who is the adverse party to the agency, in this matter, and seeks to disqualify Big Firm from representing Client. Is Big Firm subject to disqualification in Client's matter against Attorney's former employer?

No, as long as Big Firm screens Attorney in time from any participation in the matter and provides the agency with prompt written notice about the screening measures in effect.

Attorney worked for Big Firm for several years, during which he represented Conglomerate Corporation on several matters. At the beginning of representation in each matter, Attorney obtained written informed waiver of future conflicts of interest from Conglomerate Corporation, specifically including the possibility that Attorney might later represent the government in unrelated matters adverse to Conglomerate Corporation. Attorney eventually left Big Firm and went to work for Federal Regulatory Agency, in its enforcement and litigation division. On behalf of Federal Regulatory Agency, Attorney then brought an enforcement action against Conglomerate Corporation for some very recent regulatory violations. The new matter was mostly unrelated to any previous work Attorney performed for Conglomerate Corporation. Is Attorney subject to disqualification in this matter?

No, as long as the appropriate government agency gives its informed consent, confirmed in writing.

Years ago, as a law student, Attorney worked on a case for Client during a law firm internship. Now, Attorney's firm is representing a Defendant in a lawsuit in which Client is the plaintiff. Client's new lawyer moves to disqualify Attorney's firm from the representation when it learns that Attorney worked for another firm on behalf of Client when Attorney was still a law student. Is Attorney's firm subject to disqualification in this case?

No, as long as the firm screens Attorney from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect.

A legal secretary in a law firm is married to the owner of an independent retail-clothing store. The firm undertakes representation of a clothing wholesaler, who is suing the same independent clothing store over nonpayment for shipments of merchandise. The legal secretary's husband hires another firm to represent his store in the lawsuit, and his lawyer asks the court to disqualify the legal secretary's firm because of her position there. Should the firm be subject to disqualification?

No, as long as the firm screens the legal secretary from any involvement in the case or from access to any confidential information about the case.

Attorney represents Client in a civil suit. Client and Attorney often discuss their hunting trips and have gone hunting together on several occasions. Client tells Attorney he is purchasing a piece of property for hunting with five other people and asks Attorney if he would like to go in on the purchase. Attorney tells Client he would like to join in the purchase and he provides Client with a check for his portion of the purchase price. Is Attorney subject to discipline?

No, attorneys are allowed to enter into fair and reasonable business transactions with clients as long as the client is informed in writing of the benefit of seeking advice from independent counsel and gives informed consent, in writing and signed by the client, of the transaction details.

Attorney, a partner at a law firm, prepares a will for Sister. In the will, Sister directs Attorney to receive a substantial part of her estate. Attorney also recommends Sister appoint Attorney as the executor of the will because of his knowledge in this field. Attorney explains to Sister the role of the executor and the pay the executor of the estate will receive, and discussed alternative executor choices with her. Attorney recommends Sister seek independent legal counsel regarding the issue of the executor. Sister does so, and then she asks Attorney to list him as executor in the will. Is Attorney subject to discipline?

No, attorneys are not prohibited from including gifts to themselves in a will prepared by an attorney for a person related to the attorney, even if the gift is substantial.

Attorney represents Company in a civil suit. During Attorney's representation of Company, Attorney begins a sexual relationship with Receptionist at Company. Receptionist's only duties are to answer the phone, route calls, take messages, and prepare outgoing mailings at Company. Receptionist has no authority in decision-making at the Company. Receptionist's only communication with Attorney as an employee of the company is when he calls Company and Receptionist routes his call to the person with whom Attorney wishes to speak. Is Attorney subject to discipline?

No, attorneys are only restricted from having relationships with members of an organization who are directly or are regularly involved with the attorney concerning the organization's legal matters.

Parent retains Attorney to represent Defendant, who is Parent's 16-year-old child accused of shoplifting. Because Parent is paying for his services and because Defendant is a minor, Attorney generally communicates with Parent about the proceedings, options for disposing of the case, and other case-related issues. After speaking with Parent about a plea deal that would allow Defendant to do several community service hours and have the case dismissed, Parent advises Attorney that Defendant will take the deal. Attorney contacts the prosecutor who sends the paperwork for Defendant to complete and then cancels the court appearance, advising the Court that a plea deal has been reached. Are Attorney's actions proper?

No, attorneys are required to continue a normal relationship with their client as much as possible, even if the client has diminished capacity.

Attorney represents Client, a non-relative of Attorney, in legal matters and has done so for many years. Client retains Attorney to prepare a will for Client. Client asks Attorney to include in the will a substantial amount of money be given to Attorney as a gift of appreciation for Attorney's years of service, though not as any form of payment for services rendered. Attorney asks Client to seek independent legal counsel prior to including the gift in the will. Upon obtaining advice from independent legal counsel, Client asks Attorney to proceed with the will as directed. Attorney includes the gift in the will. Is Attorney subject to discipline?

No, attorneys may include substantial gifts to themselves when preparing a will for a client if directed by a client, as long as the client receives advice from independent legal counsel and the gift is not solicited by the receiving attorney.

Client retained Attorney to represent him in a car accident case. Client sought to recover $5,000.00 for damage to his vehicle and a few medical expenses Client incurred because of the accident. Attorney failed to timely file a lawsuit for Client before the statute of limitations runs. After realizing that the suit was barred because Attorney failed to timely file, Attorney sent Client a letter with a check for $20,000.00 and an agreement for Client to sign and return. The agreement stated that keeping the $20,000.00 check constituted acceptance of the agreement and that acceptance of the agreement included releasing Attorney for any malpractice claims against Attorney. Is Attorney's conduct proper?

No, attorneys must advise the client of the importance of obtaining advice of independent counsel and provide reasonable time for the client to obtain such counsel prior to settling a claim or potential claim for malpractice.

Husband and Wife wanted to hire Attorney to prepare their wills. Before the formalities of representation were final, husband spoke with Attorney privately by phone and disclosed that Husband had been having an affair, and that his mistress might be pregnant. Husband forbid Attorney to tell Wife about this. Attorney realizes there could be potential conflicts of interest between husband and wife about the wills, distribution of assets, potential challenges to the will by offspring from outside the marriage, and potential claims for child support against Husband's estate. Would it be proper for Attorney to proceed with representing Husband and Wife in preparing their wills?

No, because Attorney cannot violate the duty of confidentiality to Husband, which would be necessary in order obtain informed consent from Wife.

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired Attorney for a substantially higher salary, and Attorney accepted the position and left her government position. One of Attorney's first assigned cases at Big Firm was a new action by Client against the same government agency for which Attorney had previously worked, challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, Attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in Client's challenge, but instead worked exclusively on enforcement litigation matters. Is Attorney subject to disqualification in Client's matter against Attorney's former employer?

No, because Attorney did not participate personally and substantially in the matter as a public officer or employee

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired Attorney for a substantially higher salary, and Attorney accepted the position and left her government position. One of Attorney's first assigned cases at Big Firm was a new action by Client against Conglomerate Corporation. Attorney had worked on an enforcement against Conglomerate Corporation but did not learn any confidential governmental information about the entity during the litigation, but other lawyers who worked on the litigation before and after Attorney did learn confidential government information. Conglomerate Corporation seeks to disqualify Attorney from the representation of client, arguing that the confidential government information known to Attorney's previous employer, while Attorney worked there, is imputable to Attorney. The government agency gives its informed consent, confirmed in writing, to the representation. Is Attorney nevertheless subject to disqualification in Client's matter against Attorney's former employer?

No, because Attorney does not have confidential government information about Conglomerate Corporation, and the Rules of Professional Conduct require actual knowledge on the part of the former government lawyer litigating against a private party;it does not operate with respect to information that merely could be imputed to the lawyer.

Attorney has always practiced exclusively in the area of business transactional work and has no litigation experience. Client has used Attorney's services on a number of occasions related to her business transactions. In one instance, Attorney prepared a detailed non-compete agreement for client to use with a nationally known mathematician whom Client hired to work on Client's predictive coding algorithms. The mathematician, however, left Client's firm and began working for Client's main business rival, apparently in violation of the non-compete agreement. Client asked Attorney to bring an enforcement action against the mathematician. Attorney declined to represent Client in the litigation, and reminded Client that their previous retainer agreement over the non-compete agreement specifically stated that Attorney's representation would include only the drafting and related transactional work, and would not include litigation to enforce or nullify the non-compete agreement. Would Attorney be subject to discipline for including this provision in his agreement to represent Client?

No, because a lawyer may reasonably limit the scope of the representation, by informed agreement with the client, at the beginning of the representation, and refusing to do litigation is a typical limitation on the scope.

Attorney represented Client in a residential real estate transaction. At the same time, Attorney agreed to represent the defendant in a large class-action lawsuit, an alcoholic beverage maker that understated the alcohol content of its products on its labels, leading to numerous cases of inadvertent intoxication, liver damage from continuous consumption, and a few deaths from overconsumption that led to alcohol poisoning. Client was an unnamed member of the plaintiff class in the class-action lawsuit against the alcohol producer. Attorney did not inform Client that he was representing the defendant in the class-action lawsuit or seek consent from Client or from the alcohol producer. Plaintiffs' counsel in the class action lawsuit discovered this situation, and asked the court to disqualify Attorney from representing the defendant. Should Attorney be subject to disqualification under such circumstances?

No, because a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.

Attorney had been representing Client in a purely transactional matter, drafting incorporation documents for Client's business, as well as other commercial lease and sale agreements. None of Attorney's work for Client has involved information about the Client's finances or assets. As a result, Attorney did not know anything about the average income, assets, or insurance of Client's business, or even for Client personally, except that he has duly incorporated the business under state law. On a wholly unrelated matter, Victim approached Attorney seeking representation for a lawsuit over damage to Victim's expensive car in a parking lot when Client negligently scraped Victim's car while trying to back out of a parking space with his own vehicle. During the initial interview, Victim gave very few details about the accident or the scope of damages, except to identify Client as the intended defendant and that the incident involved a scraped fender in a restaurant parking lot. The attorney believed there was no significant risk that the representation of Client would materially limit the Attorney's responsibilities to Victim, and vice-versa. The attorney's representation of Client involved only the drafting of a few standard documents for Client's business, and Victim's claim did not relate to the business at all, but to Client's conduct outside of work while driving his personal car in a parking lot. Because the attorney believed there was no conflict here, he did not seek consent from either party, although he mentioned to Victim that he had drafted some documents for Client's business, and Client would obviously learn about the representation of Victim when Attorney filed the lawsuit. May an attorney proceed with representing Victim in this case?

No, because absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated.

Client meets with Attorney to discuss certain financial decisions Client is considering making in the future. Attorney discusses the pros and cons of making the decisions, but does not give a recommendation to Client. Client goes on to make the financial decisions and ultimately is filed upon by the IRS for tax fraud. Is Attorney subject to discipline?

No, because an attorney may analyze and give an opinion about the likely consequences of a client's conduct.

Attorney works for a firm where another lawyer is representing Defendant in a personal injury lawsuit. The other lawyer has represented Defendant for a long time on unrelated, non-litigation matters, but the personal injury lawsuit is a new case. Victim, the plaintiff in the same personal injury lawsuit, was a college classmate of Attorney and he asks Attorney to represent him in the litigation. Attorney has not learned any confidential information yet about Defendant from his fellow associate at the firm, nor has Attorney learned any confidential information from Victim during their preliminary consultation. The firm decides to undertake the representation of Victim as well. The firm will carefully screen Attorney and lawyer from one another, forbidding them to discuss the case with each other or anyone else in the office, and ensuring that they do not have access to each other's files for the case. In addition, neither lawyer will receive a bonus from the fees received for this litigation. Under the Rules of Professional Conduct, is it proper for Attorney to represent Victim, given these circumstances?

No, because the Rules of Professional Conduct impute the conflict of the other lawyer to Attorney, and screening procedures do not apply to conflicts between current clients.

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired Attorney for a substantially higher salary, and Attorney accepted the position and left her government position. One of Attorney's first assigned cases at Big Firm was a new action by Client against Conglomerate Corporation. Attorney had worked on an enforcement against Conglomerate Corporation and learned confidential governmental information about the entity during the litigation. The government agency gives its informed consent, confirmed in writing, to the representation. Is Attorney nevertheless subject to disqualification in Client's matter against Attorney's former employer?

No, because the appropriate government agency gave its informed consent, confirmed in writing, to the representation.

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired Attorney for a substantially higher salary, and Attorney accepted the position and left her government position. One of Attorney's first assigned cases at Big Firm was a new action by Client against the same government agency for which Attorney had previously worked, defending against an enforcement action that Attorney had initiated while at the agency. The defense will involve challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, Attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in Client's challenge, but instead worked exclusively on enforcement litigation matters. The government agency gives its informed consent, confirmed in writing, to the representation. Is Attorney nevertheless subject to disqualification in Client's matter against Attorney's former employer?

No, because the appropriate government agency gave its informed consent, confirmed in writing, to the representation.

Attorney previously represented Client in securing environmental permits to build a shopping center. State and federal agencies granted the necessary permits. Construction of the shopping center, however, did not begin immediately, because demolishing the outdated structures on the land and clearing the debris exhausted Client's initial supply of investment funds. Attorney's representation of Client ended once the environmental permits were securely in hand. Two years later, Client found another investor and was ready to begin construction. In the meantime, the residents of the neighborhoods around the shopping center had turned against the project, out of concerns for the increase in traffic and litter that it could bring to the area, as well as the flooding of adjacent yards that would result from the rainwater runoff from a new parking lot. The "Not In My Back Yard Association" (NIMBY Assoc.) formed and learned that the rezoning of the property by municipal authorities to permit a shopping center was still pending, with an upcoming public hearing on the schedule. NIMBY Assoc. hired Attorney to represent the neighbors in opposing the rezoning on the basis of environmental considerations. Would it be proper for Attorney to represent the neighbors in this matter?

No, because the matters are "substantially related," as there is a substantial risk that confidential factual information that would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter, such as detailed reports about the potential environmental impact of constructing the shopping center.

Attorney is a managing partner in a law firm, and owns $100,000 worth of stock in Conglomerate Corporation, the named defendant in a new antitrust suit. Attorney's total compensation from the firm is around $120,000 per year, including bonuses, and his stock holdings in Conglomerate are his most valuable asset besides his home, which is worth about $300,000 but Attorney has very little equity in it. Attorney supervises, at least indirectly, all the associates in the firm. Another lawyer in the firm seeks to represent the plaintiffs in the antitrust action against Conglomerate Corporation, which is not a client of the firm. Would it be proper for the firm to represent the plaintiffs in litigation against Conglomerate Corporation?

No, because the personal interest of the firm's managing partner in Conglomerate is so great, relative to his earnings and assets, that there is a significant risk of materially limiting the representation of the plaintiffs in their cause of action against Conglomerate.

Husband and wife decide to divorce, and reach an agreement to share the same lawyer in order to save money. They hire Attorney to represent each of them in Family Court for the dissolution of marriage. Attorney explains that there is an obvious conflict of interest here, but Husband and Wife insist, and sign informed consent forms waiving the conflict and their rights to assert any future claims related to the conflict. Husband and Wife have no children, and have always kept separate bank accounts. Each purchased their own car from the money in their own bank account and each car's title is in only one name. They live in an apartment whose lease is expiring soon, so there is no real property to divide. Would it be proper for Attorney to represent both in the divorce?

No, because the representation involves 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

Client manufactures a new generation of magnetic-resonance imaging machines for medical diagnostics in hospitals. The machines sell for nearly one million dollars apiece. Three years ago, Client hired Attorney to draft a Purchase and Sale Contract for Client to use whenever Client sells one of the devices to a hospital. Attorney's representation of Client ended after drafting a model contract, and Attorney has done no legal work for Client since. Last week, Hospital Administrator hired Attorney to handle a dispute with the manufacturer of one of its high-end diagnostic machines. Attorney quickly learns that the faulty device is one of Client's magnetic-resonance imaging machines, and that the Hospital Administrator consummated the purchase by signing one of the contacts that Attorney had drafted. Hospital Administrator merely seeks to rescind the contract and return the machine for a full refund the hospital has not yet incurred damages due to the faulty machine, but the device is unusable and was very expensive. Would it be proper for Attorney to represent Hospital Administrator in this case?

No, because under the Rules of Professional Conduct, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client.

Attorney has applied to make a lateral move from her firm to Big Firm, and has already gone through the first two of three rounds of interviews for the position. Attorney agrees to represent Client in filing a breach of contract claim against Construction Company over a commercial development project. Big Firm is representing Construction Company, and the firm's lawyers drafted the contract that forms the basis of Client's complaint. Client claims that Construction Company breached a particular provision of the contract that is arguably ambiguous Construction Company is confident that its conduct falls within the contractual language in that provision. Is it proper for Attorney to undertake representation of Client in this case?

No, because when a lawyer has discussions concerning possible employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the lawyer's representation of the client.

Attorney seeks to represent a class of plaintiffs in a class-action lawsuit over lethal effects of a popular energy drink. The class action will have three named plaintiffs and approximately two thousand unnamed plaintiffs. After the class action lawsuit is underway, Attorney has the opportunity to represent another plaintiff in a personal injury case over a traffic accident, and the defendant is one of the unnamed members of the class action lawsuit over energy drinks. Must Attorney obtain written consent of the unnamed class member before representing the second client in suing the unnamed class member?

No, because when a lawyer represents a class of plaintiffs in a class-action lawsuit, unnamed members of the class are not clients of the lawyer for purposes of conflicts rules;the lawyer does not need to get the member's consent before representing a client suing the person in an unrelated matter.

Attorney worked for Big Firm in their intellectual property department, specializing in patent applications and patent enforcement, as well as some trademark disputes for clients. Unbeknownst to Attorney, the regular litigation department at Big Firm undertook representation of a trucking company in defending against a personal injury lawsuit over a roadway accident involving one of the trucks. Attorney worked in the Washington, D.C. office of Big Firm, near the United States Patent and Trademark Office, and the litigators handling the truck accident is in the firm's Dallas office. Each office of Big Firm has its own local computer network for sharing documents and files between lawyers there. It is possible for lawyers at Big Firm to access the networks of other satellite offices, however, with a special login that most lawyers never use. Attorney has never accessed the files of the Dallas office except for one trademark case four years ago. Attorney did not make partner at Big Firm, so he left and went to work for a small plaintiff's firm in Kansas. One of Attorney's first case assignments was the same truck accident case in which Big Firm was defending the trucking company - Attorney's new firm represents plaintiff in the case. Attorney was not aware of the case or that Big Firm represented the trucking company until the new firm assigned him to the case as second chair on the litigation. Is Attorney subject to disqualification in this matter?

No, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.

Attorney specializes in intellectual property law, and regularly represents both inventors and venture capitalists in tech startup businesses. Even though Attorney represents only one or the other side in each transaction, she may represent an inventor in one contract with a venture capitalist and represent that venture capitalist in drafting agreements with other inventors. Attorney has drafted a standardized "waiver of future conflicts" form that she asks all clients to sign along with their retainer agreement at the beginning of representation. The waiver of conflicts form explicitly consents to representation despite any and all conflicts of interest that might arise regarding Attorney's past, present, or future clients. When an actual conflict of interest or adverse relationship exists between clients at the outset of representation, Attorney carefully explains the situation to new clients and encourages them to seek advice from other counsel about signing the waiver. When no present conflicts are apparent, but only hypothetical potential conflicts are at issue, Attorney merely says that the form is for hypothetical, potential conflicts of interest that probably will not arise in the current transaction. Is Attorney's standardized "waiver of future conflicts," when signed by new clients, likely to be effective in this situation?

No, if the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved.

Attorney agrees to represent a group of three individuals in the same matter, a business transaction. Their interests are not directly adverse. Attorney has represented each of the clients in separate matters previously, and is already working under a retainer to do legal work for each under the same hourly rates. Two of the clients are currently traveling overseas, but everyone agrees to the representation by conference call. Attorney explains potential conflicts of interest that could arise in common representation, and all clients consent orally to the common representation despite the potential conflicts. Attorney proceeds with working on their matter for three weeks until all the clients are back from traveling and can sign written consent forms. By that time, Attorney has completed 50 hours of work, and has acquired significant confidential information by and about each of the three clients. Would Attorney be subject to discipline for performing this legal work before obtaining written consent to the conflict by each conflict?

No, it was not feasible to obtain or transmit the writing at the time the client gives informed consent, so the lawyer could obtain or transmit it within a reasonable time thereafter.

Businesswoman hired Attorney to represent her in a tax dispute with the government, in which the government accused her of hiding assets in overseas accounts and failing to report income from certain obscure investments. During this representation, Attorney learned extensive private financial information about Businesswoman, but the representation ended at the resolution of the tax case. Several years later, after the termination had ended, the husband of the Businesswoman filed for divorce. Attorney was the only lawyer the husband knew, so he retained Attorney to represent him in the divorce against Businesswoman. Businesswoman's lawyer moves to have Attorney disqualified from representing the husband, but Attorney claims that the matters were not substantially related enough to merit disqualification. Is Attorney correct?

No, matters are "substantially related" if there is a substantial risk that confidential factual information that would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter, such as personal financial information.

Lawyer worked for law firm and represented Client. Sometime after the conclusion of the case, Lawyer left law firm. Potential Client consults with firm after Lawyer left and discusses a potential case with Attorney, another attorney at the firm. Potential Client's interests would be materially adverse to those of Client. Attorney accepts Potential Client's case. Is Attorney subject to discipline?

No, prior attorneys' knowledge is not imputed unless the matter is the same or substantially related or another lawyer in the firm has information that is material to the matter.

Attorney is representing two French restaurants located across the street from each other the restaurants are bitter rivals and have sued each other in the past, using other lawyers. They are the only French restaurants in that area, so they compete for the same customers - their menus, décor, and prices are very similar. The owners were childhood friends who became sworn enemies as adults when one started a restaurant to compete with the other. Attorney represents one French restaurant in a dispute with its landlord, and the other French restaurant in a lawsuit by a former employee who claims she was wrongfully terminated for discriminatory reasons. When each French restaurant learns that Attorney represents the other, they both express deep dismay and some sense of betrayal, given that each is the other's worst enemy. One of the French restaurants believes Attorney has a conflict of interest and complains to the state bar. The other French restaurant, when it loses its lawsuit with its former employee, sues Attorney claiming that he had a conflict of interest in the representation. Does Attorney have a conflict of interest here?

No, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.

Attorney represents several clients in various matters before the Federal Trade Commission. In one proceeding, the FTC adopts a new interpretation of a recently enacted statute about unfair trade practices, and this becomes the rule of the case. Attorney has some new clients who are at the beginning stages of an FTC inquiry of their business pertaining to the requirements of the unfair trade practices statute. Without mentioning the identity of the other client or the exact nature of the proceedings, Attorney informs the new clients that the FTC has just adopted a particular interpretation that could be very favorable to the new clients in their interactions with the agency, as long as the clients conduct certain internal audits and recordkeeping. Is Attorney subject to discipline for sharing with new clients this information he learned during the representation of the other client?

No, the conflict of interest rules do not prohibit uses that do not disadvantage the client, so a lawyer who learns a government agency's interpretation of trade legislation during the representation of one client may properly use that information to benefit other clients.

Attorney works for a firm. She also describes herself as an outspoken advocate for the rights of unborn children, that is, she passionately favors legal restrictions on abortion. A local abortion clinic asks the firm to represent it in litigation over recent zoning measures that would significantly limit its hours of operation and therefore number of clients the clinic take. The firm agrees to the representation. Attorney firmly refuses to have any part in the representation, and though no formal screening measures are in place, everyone else in the firm avoids discussing the case with her or around her, because they are afraid of receiving another lecture about the wrongfulness of abortion. Early in the litigation, the judge considers disqualifying the firm because they employ Attorney, who has a reputation in the community for her advocacy against legalized abortion. Neither the clinic nor the opposing party (the municipal zoning authority) provided written consent to a conflict of interest. Should the firm be subject to disqualification in this case?

No, the firm should not be disqualified where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm.

Attorney previously represented Client in securing environmental permits to build a shopping center. State and federal agencies granted the necessary permits. Construction of the shopping center, however, did not begin immediately, because demolishing the outdated structures on the land and clearing the debris exhausted Client's initial supply of investment funds. Attorney's representation of Client ended once the environmental permits were securely in hand. Two years later, Client found another investor, overcame neighborhood opposition to the construction, obtained favorable rezoning for the parcel, and constructed the shopping center. Several business tenants moved in and operated in the shopping center. Eighteen months later, one of the tenants, an organic pet food store, was unable to pay rent for her unit for two consecutive months, so the property manager commenced eviction proceedings. Tenant hired Attorney to represent her in the eviction proceedings, but the shopping center's lawyer filed a motion to have Attorney disqualified due to the substantial relationship between his previous work in securing environmental permits for the building and the present legal dispute with one of the shopping center tenants. Is Attorney subject to disqualification from representing Tenant?

No, the matters are not substantially related because they do not involve the same transaction or legal dispute, and the confidential information Attorney learned in the process of securing environmental permits prior to construction would not relate to the nonpayment of rent by a tenant a few years later, after the shopping center is operational.

On the same day, Attorney agrees to represent Undocumented Immigrant in a visa-revocation matter, as well Victim in a tort action (product defect) against an automobile manufacturer. The two matters are unrelated. In the second case, Attorney anticipates that the defendant automobile manufacturer will argue that extensive federal safety regulations of automobiles, which require certain safety features and specifications, should preempt state tort law and therefore prevent a state court from adjudicating the case. On the other hand, many undocumented immigrants have relied upon federal preemption of state law in challenging onerous state penal statutes targeted at illegal immigrants. If Attorney prevails in his preemption argument in the vehicle manufacturing defect case, and on appeal creates precedent against federal preemption of state law, the precedent would probably be unfavorable to Attorney's other client, Undocumented Immigrant. The state legislature has several bills pending that would impose criminal sanctions on landlords who lease apartments to undocumented aliens, drivers who transport undocumented aliens to work sites, and contractors who hire subcontractors that employ undocumented aliens. Does the fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of the other client create a conflict of interest, for which the lawyer must obtain consent from each client?

No, 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 interest.

A group of several individuals seeking to form a joint venture asked Attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. Two of the individuals were to provide most of the initial funds for the startup two others were experienced inventors who were to provide new product designs;two others had expertise in business management and were to serve as managers;and two had proven records in high-end sales and marketing. They have not yet resolved the allocation of ownership shares, bonuses for managers, whether to have anti-compete agreements for each participant, whether patents will belong solely to the joint venture or partly to the inventors themselves, and whether sales reps will work on salary or commissions. Each individual says that she wants whatever terms would be best for the joint venture overall, rather than what would be most beneficial for each one individually. The shared objectives and goals of the group lead Attorney to conclude that no conflicts of interest are present and that it would be counterproductive to try to convince each member of the group to sign an informed consent form acknowledging that conflicts of interest exist and that Attorney may still represent everyone at once. May Attorney trust his professional judgment and proceed without obtaining separate consent forms from each person in the joint venture?

No, the situation is likely to limit materially Attorney's ability to recommend or advocate all possible positions that each might take because of his duty of loyalty to the others;representing the group's overall interests in effect forecloses alternatives that would otherwise be available to the client.

Attorney worked at Big Firm, which was disqualified from representing Client in a case because one of the other lawyers at the firm had a conflict of interest regarding a former client, and this conflict was imputable to the entire firm. The firm was not timely in implementing screening measures and became subject to disqualification. Attorney was at the firm during this time, but was not involved in the matter and did not learn any confidential information about Client. Attorney left that firm and went to work at another firm. It turned out that Attorney's new firm is representing Client instead - Client hired the new firm after the previous firm was subject to disqualification. The new firm has no measures in place to screen Attorney from participation in the matter, though Attorney is not in fact participating in the representation. Will the new firm be subject to disqualification now, because Attorney joined the firm from another firm that was subject to disqualification?

No, there is no doctrine of double-imputation that would impute a purely imputed conflict from Attorney onto the other lawyers in the new firm.

Attorney worked for several years as a city attorney for a large municipality in its employment litigation division, defending the municipality against employment-related lawsuits from city employees, including discrimination claims. Attorney then left that position and went to work for a federal regulatory agency, the Equal Employment Opportunity Commission. The EEOC is sometimes an adverse party to the municipality where Attorney once worked. Even when not involved in the same matter or litigation, their goals and interests are often adverse, as the city attorneys are usually arguing for limitations on employer liability in discrimination cases, while the EEOC generally seeks to expand protections for workers against discrimination by employers. At her new position, Attorney has no assignments that are the same cases or matters in which she participated as a city attorney, but there are a number of cases pending in the office that are adverse to the interests of her former employer, and some in which they are opposing parties in the same litigation. Must the EEOC screen Attorney from such cases in the same way that a private firm would need to do under the Rules of Professional Conduct?

No, when a lawyer is employed by a city and subsequently is employed by a federal agency, the latter agency is not required to screen the lawyer.

Which of the following is NOT one of the reasons that a conflict of interest might be "nonconsentable" under the Rules of Professional Conduct?

One of more clients pay the lawyer lower fees than the other(s)

Comment 16 to Rule 1.7(b)(2) describes three examples of "conflicts that are nonconsentable because the representation is prohibited by applicable state law." Which of the following is NOT one of the examples of conflicts that are nonconsentable because the representation is prohibited by applicable state law?

State hate crime statutes prohibit a lawyer who shares the same protected status as the victim from representing the defendant in the criminal proceeding.

Business Manager and Shift Supervisor, who worked at a customer service call-center, became co-defendants in a lawsuit by a disgruntled former employee. The plaintiff claimed to have been the victim of gender discrimination in the form of a hostile work environment, as well as intentional and negligent infliction of emotional distress related to the same factual allegations about her treatment at the workplace. Business Manager hired Attorney to represent both himself and the Shift Supervisor, who had been the plaintiff's direct superior. Based on Business Manager's initial investigation and review of the personnel files of the plaintiff and the Shift Manager, he believes the allegations are baseless and that the suit will end in a dismissal or summary judgment before trial. Shift Supervisor had a spotless work history, but the plaintiff had numerous interpersonal conflicts with her peers, was frequently late for work or missed work completely, and was the subject of several customer complaints. From his consultations with the defendants, Attorney understood that both Business Manager and Shift Supervisor were equally targets of the complaints. Business Manager and Shift Supervisor both gave Attorney written informed consent to the potential conflicts of interest in having Attorney represent both of them. Business Manager obtained tentative permission to have the business cover the legal fees for Attorney. Near the end of the discovery phase, however, plaintiff produced numerous inappropriate love letters to her from Shift Supervisor, many with explicit sexual overtures, and a few that sounded threatening based on her lack of response to previous letters. In addition, several co-workers of plaintiff gave depositions explaining that they had witnessed Shift Supervisor engaging in inappropriate and unwanted touching of plaintiff on many occasions. Several also testified that Shift Supervisor would often accost her for ten or fifteen minutes outside, before she could reach her workstation, and that this was the cause of her tardiness for work. Business Manager had never heard about any of these problems before. Moreover, during depositions the plaintiff explained that she always had very little contact with Business Manager and had no direct complaints about his treatment of her, and acknowledged that she had never complained to Business Manager about Shift Supervisor's harassment of her. She disclosed that Business Manager was a co-defendant only because her attorney believed it was necessary to name someone from upper management in the lawsuit in order to trigger the legal protections of Title VII and other antidiscrimination laws. Business Manager then revoked his consent to the conflict of interest, explaining that he wanted separate representation from Shift Supervisor. Trial was due to begin two weeks later. Would it be proper for Attorney to continue representing either Shift Supervisor or Business Manager, but withdraw from representing the other?

Yes, Attorney can probably continue representing Shift Supervisor but not Business Manager, given the nature of the conflict, the fact that Business Manager revoked consent because of a material change in circumstances, the expectations of Shift Supervisor, and so on.

Two clients agree to representation by the same Attorney in a civil action, and both provide written informed consent to the potential conflicts of interest. Halfway through trial, the opposing party unexpectedly makes a settlement offer that one client wants to accept. The other client prefers to decline, as he believes that a favorable jury verdict is a certainty and will be much higher. Attorney strongly encourages them to accept the settlement offer, which he believes is generous, given his perception that their chances for a favorable jury verdict are slim. Unable to reach a consensus on whether to accept the settlement offer, one of the clients revokes his consent to the conflict of interest. Assuming there are no other special circumstances in this situation and that the court would not prohibit withdrawal, must the Attorney withdraw from representation?

Yes, Attorney must petition the court to withdraw from representing both clients.

A subcontractor on a highway construction project negligently damaged the General Contractor's equipment and simultaneously inflicted property damage on a state building storing the equipment. The relevant state office, along with the general contractor, hire Attorney to represent them in a lawsuit against the subcontractor. The state client and the private party each provide written informed consent to potential conflicts of interest in the form of a waiver. Is it proper for Attorney to represent both the government and a private party at the same time?

Yes, The Rules of Professional Conduct do not strictly prohibit a lawyer from jointly representing a private party and a government agency

Two separate clients hired Attorney, signing their retainer agreements one week apart, on unrelated matters, though both involve property owners' rights under the state's common law doctrine of public trust for beaches, which guarantees public access to beaches up to the vegetation line on the shore. In one case, erosion has moved the boundary back on the property owner's lot to the point where his house is now clearly on the public access portion, and he seeks a declaratory judgment that erosion cannot jeopardize the private ownership of a building and its curtilage. Current public trust doctrine in the state would suggest that the property owner has lost all the value in his property, so he needs to seek a change or exception to the current law. The other case involves a property owner whose lots had always been separated from the beach by a small public park, but erosion has eliminated the park and given him water access from his property, which has greatly increased the value of his land under current public trust doctrine. The state government, however, is seeking a declaratory judgment in his case, arguing for an exception or change to the current law that would rob the owner of the windfall he received due to the erosion. Does this situation present a conflict of interest that would require Attorney to obtain informed consent, in writing, from both clients in order to proceed with the representation?

Yes, a conflict of interest exists if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case, as when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.

Attorney has been representing Client in a simple adoption of an orphan from Zimbabwe. Corporation then hires Attorney to defend it against a defective-products lawsuit brought by Victim, whom Attorney does not represent. During the discovery phase of litigation, before trial, Victim's lawyers disclose the list of witnesses they plan to call to support Victim's claims of injuries and the scope of damages. Attorney notices that Client, for whom he has been handling an adoption matter, is going to testify at trial in support of Victim's claims, against Corporation. Client is still unaware that Attorney is representing Corporation, and Client is merely testifying as a friend of Victim about Victim's character traits of caution and care, and the suffering Victim has endured since the incident with Corporation's defective product. Attorney was not aware that Client even knew Victim, and unsurprisingly did not obtain consent from Client, Corporation, or Victim about this issue. Is Attorney subject to disqualification in this case?

Yes, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit.

Attorney obtained a successful outcome in Client's matter, and Client was grateful. Client sent Attorney a gift basket that year as a holiday gift, containing high-quality fresh fruit, sample-size jars of gourmet fruit preserves, and a few other delicacies. The gift basket cost Client $50. Is it proper for Attorney to accept this gift, or must Attorney refuse it?

Yes, a lawyer may accept a simple gift such as a present given at a holiday or as a token of appreciation.

Attorney represents Conglomerate Corporation in a regulatory compliance matter, drafting documents for Conglomerate to file with the Securities and Exchange Commission and the Federal Trade Commission regarding executive salaries (for the SEC) and product market share (for the FTC's antitrust inquiry). Conglomerate Corporation owns or co-owns numerous subsidiaries and affiliates in unrelated industries. Attorney's retainer agreement limits his representation exclusively to the SEC and FTC regulatory matters. Victim hires Attorney to represent him in a personal injury suit against Subsidiary Corporation, partly owned by Conglomerate Corporation, over a slip and fall accident in Subsidiary's parking lot. Is it proper for Attorney to represent Victim in a tort action against an affiliate or subsidiary of his other client, Conglomerate Corporation?

Yes, a lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary, and the lawyer for an organization may provide representation adverse to an affiliate in an unrelated matter.

Attorney is a partner in a law firm, and owns $100,000 worth of stock in Conglomerate Corporation, the named defendant in a new antitrust suit. Attorney's total compensation from the firm is around $15 million per year, including bonuses, and his net worth is around $500 million. His home is worth about $7 million and Attorney inherited it, so the property is unencumbered by any mortgage or liens. Attorney works in a specialized area of law at the firm and does not have much interaction with the other lawyers, except at parties and occasional partners' meetings. Another lawyer in the firm seeks to represent the plaintiffs in the antitrust action against Conglomerate Corporation, which is not a client of the firm. Would it be proper for the firm to represent the plaintiffs in litigation against Conglomerate Corporation?

Yes, as long as Attorney is not involved in the representation, there will be no imputation of Attorney's conflict of interest to the other lawyers in the firm, because it is Attorney's personal interest and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm

Attorney was a judge but has left that job and joined Big Firm. Another lawyer at Big Firm represents Client in a case on the docket at the same court where Attorney worked as a judge. In fact, as a judge, Attorney ruled on some of the pre-trial motions in the case, mostly evidentiary motions. The firm has screening measures in place to screen Attorney from any participation in the matter. Attorney will receive no part of the fee from the matter, and timely notice went to the parties about the screening measures in place. The other parties, however, did not provide informed written consent to Big Firm's representation of Client. Is it proper for the other lawyer at Big Firm to continue representing Client in this matter?

Yes, as long as Big Firm also provides timely notice to the appropriate tribunal as well, so that the tribunal may ascertain compliance screening measures.

The Workers' Union at a manufacturing plant is having annual collective bargaining negotiations with the Management. Wages and benefits are not in dispute this year, as the parties reached an agreement in the previous year's collective bargaining about a five-year schedule for wages and benefits that was acceptable to both the Union and Management. The sole issue in dispute this year is hiring: the Workers' Union wants the plant to hire five or six new assembly line workers so that there will be more efficiency and more flexibility for workers requesting days off or changes in their shifts. The Management wants to hire fewer new workers, perhaps two at most, in order to keep payroll costs down and their stock share prices high. The Union and Management agree to hire Attorney, an experienced labor lawyer at an outside firm, to facilitate the collective bargaining negotiations. Neither side is currently expecting a breakdown in bargaining that would lead to litigation. Would it be proper for Attorney to have both the Union and the Management as clients while facilitating the negotiations?

Yes, as long as both clients provide written informed consent, common representation is permissible where the clients' interests generally align, even though there is some difference in interest among them, so a lawyer may seek an agreement between them on an amicable and mutually advantageous basis

Attorney represented Small Business Associates while working at Big Firm, her first law firm after law school. When Attorney did not make partner at the firm, she ended her employment there and started her own new firm. Attorney took some of her clients with her, including Small Business Associates, whom she continues to represent. Big Firm no longer has Small Business Associates as a client. Big Firm then agrees to represent Conglomerate Corporation in a trademark infringement case against Small Business Associates, the first such case that the latter has ever faced. Can Big Firm represent Conglomerate in a case against its former client, Small Business Associates?

Yes, as long as the matter is not the same or substantially related to that in which Attorney formerly represented the client;and no lawyer remaining in the firm has confidential information about Small Business Associates from when Attorney represented them at that firm.

Attorney recently moved laterally to a new firm. Attorney's previous firm represented Conglomerate Corporation and Attorney occasionally worked on some of Conglomerate's legal matters. Attorney's new firm has recently decided to represent Plaintiffs in a lawsuit against Conglomerate, and the cause of action arises from a new consumer protection statute that the state legislature passed in its last session. Attorney had left the previous firm before the new lawsuit began, and will not work on the new lawsuit at all. Would it be proper for Attorney's new firm to represent the Plaintiffs in an action that is directly adverse to Conglomerate Corporation?

Yes, as long as the new firm screens Attorney from the case, and provides written notice to Conglomerate about its screening procedures, as well as periodic certifications that the firm is indeed following the screening procedures regarding Attorney.

Client and her estranged husband have lived separately for several years. Client faces charges for involvement in an armed robbery. Client retains Attorney to represent her in the armed robbery case. Client's estranged husband learns that Client faced criminal charges and looks up her attorney's information in the local court records. Client's estranged husband then contacts Attorney and asks to make a payment for Client's representation because he feels guilty for leaving her several years before. Attorney accepts payment from Client's estranged husband. Is Attorney subject to discipline?

Yes, attorneys are required to obtain informed consent from the client before accepting payment from a third party.

Attorney handles claims against banks for many clients for issues regarding the failure of banks to investigate in a timely manner claims of fraud or unauthorized use of bankcards. Most of Attorney's work consists of sending demand letters, and most cases never actually result in the filing of a suit. Bank, a small local bank, retains Attorney to handle a particular claim against a customer for non-payment of a loan. Attorney has not represented any clients against Bank. Attorney includes in his contract for services a clause in which Bank waives any conflicts that may arise in the future - conflicts that involve Attorney representing clients against Bank for issues regarding failure to investigate claims of fraud or unauthorized use of bankcards. Is Attorney's conduct proper?

Yes, attorneys can include waiver clauses for future conflicts in their contracts if the clients are aware of the waiver and the types of future representations that may arise are limited and detailed in the contract.

Client hires Attorney in high-profile murder case in which Client is the defendant. Client is unable to pay the fee, but offers Attorney full media and literary rights in exchange for representation. Attorney agrees, but specifically states in contract that no media or literary rights shall be used by Attorney until the case concludes. Is Attorney subject to discipline?

Yes, attorneys cannot make an agreement with a client giving the lawyer media and/or literary rights in exchange for representation before the conclusion of the case.

Client is represented by a lawyer in a law firm for a malpractice suit against a doctor. Client incurred significant medical bills and expenses after a surgery went unusually wrong. Attorney, who works in the same law firm as the lawyer representing Client, offered to give Client a set amount of money each month until the case ended. Client could then repay this attorney with his recovery from the lawsuit. Is Attorney subject to discipline?

Yes, attorneys cannot provide financial assistance to their clients and this rule applies to other attorneys in the firm.

Client consults with Attorney regarding a criminal case in which Client is the defendant. Attorney previously represented Client's friend, who is a co-defendant in the current case, in another matter. Attorney does not believe that the previous representation of Client's friend will disable him from providing competent and diligent services to Client, and the parties are not making any claims against each other. May Attorney represent Client in this case?

Yes, attorneys may represent conflicting parties as long as both clients give informed consent and both parties' confirm their consent in writing.

Attorney represented Husband in a divorce case against Wife. Several years later, Wife contacted Attorney regarding filing an enforcement against Husband for Husband's failure to pay child support. Attorney called Husband at a phone number provided by Wife. Attorney discussed the conflict with Husband and Husband advised that he was not opposed to Attorney representing Wife. Attorney then accepted the case and filed the enforcement. Is Attorney subject to discipline?

Yes, attorneys shall obtain informed consent, confirmed in writing, if representing a person in a case in which that person's interests would be materially adverse to a previous client's interests.

Two successful business partners hired Attorney to help with the dissolution of the partnership, as the two partners no longer want to work together. Attorney was very concerned about the obvious conflict of interest, but the partners insisted that they did not want to complicate matters unnecessarily by hiring separate counsel, and that they were already in complete agreement about how to divide the business. They even signed informed consent statements acknowledging and waiving the conflict. Each partner believed it would be in both of their best interest to use only one lawyer to dissolve the business. The matter was purely transactional at this point, and did not involve any anticipated litigation before a tribunal. One partner had already mentioned to Attorney that he might need his legal services in setting up a new business, as well as handling some estate planning issues for him. Attorney still believed that dual representation was not a good idea, given the complexity of the business and the debatable future value of some of the patents, goodwill, and other intellectual property involved, and because one partner contributed a much larger share of the startup funds years before. The partner who mentioned hiring Attorney to do estate-planning work wanted the dissolution to include assigning his proceeds from the business to his heirs. Attorney proceeded with the dual representation and the dissolution appeared to proceed smoothly. Is Attorney subject to discipline for representing both partners?

Yes, because Attorney did not reasonably believe that he would be able to provide competent and diligent representation to each affected client.

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired Attorney for a substantially higher salary, and Attorney accepted the position and left her government position. One of Attorney's first assigned cases at Big Firm was a new action by Client against the same government agency for which Attorney had previously worked, defending against an enforcement action that Attorney had initiated while at the agency. The defense will involve challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, Attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in Client's challenge, but instead worked exclusively on enforcement litigation matters. Is Attorney subject to disqualification in Client's matter against Attorney's former employer?

Yes, because Attorney participated personally and substantially in the matter as a public officer or employee

Attorney spent several years working on the state intermediate appellate court as one of its nine justices, in a state in which such judges run for election in the general elections every four years. When Attorney ran for re-election, she lost, and needed to return to private practice. Client wants Attorney to represent her in her appeal of a state trial verdict. The case previously came up on appeal before the state intermediate appellate court, but Attorney was not on the panel that decided the case. The state Supreme Court subsequently reversed the decisions of both the appellate court and the trial court, and remanded the case for a new trial. The new trial resulted in an unfavorable verdict for Client, so she wants to appeal the case again. Would it be proper for Attorney to represent her in this matter?

Yes, because a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate.

Attorney worked for several years for a federal government agency in regulatory enforcement. Attorney was involved in several enforcement matters against Conglomerate Corporation. Big Firm has always represented Conglomerate Corporation in all its litigation and regulatory compliance matters. Attorney made a good impression on the Big Firm partners when serving as opposing counsel in the same litigation. At the end of a deposition of Conglomerate Corporation's executives during the discovery phase of an enforcement proceeding, Big Firm partners approached Attorney privately and asked if Attorney would be interested in leaving the agency for a position at Big Firm. Attorney explained that they would have to match his current salary at the government agency in order for him to consider the proposal. Big Firm then scheduled an employment interview with Attorney, at the end of which they offered to double his salary if he left the agency and accepted a position at Big Firm. Attorney decided to postpone making a decision until the pending agency enforcement matters against Big Firm's client were complete, in order to avoid the appearance of a conflict of interest. The matters dragged on for another year, however, and Big Firm eventually withdrew its offer. Is Attorney subject to discipline?

Yes, because a lawyer currently serving as a public officer or employee shall not 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.

Client hired Attorney to represent her in a personal injury lawsuit in which Client is the plaintiff. After an initial consultation and two meetings to review the main evidence in case and to discuss the nature of the claims, Attorney drafted the initial pleadings, served the opposing party, and filed the pleadings in the appropriate court. Attorney did not allow Client to review the pleadings before filing them, and afterward, Client expresses disappointment that she did not have the opportunity to review the pleadings beforehand and make suggested edits, given that it is her case and that Attorney is working for her. Was it proper for Attorney to draft the pleadings based on conversations with the plaintiff and file the documents without first having the plaintiff review them?

Yes, because a lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.

Client hires Attorney to represent her in business litigation. Another lawyer in the firm, unknown to Attorney, approaches Client with a proposal for an unrelated business transaction, the sale of a parcel of real estate adjacent to the lawyer's own land. Client agrees to sell the other lawyer in the firm the parcel of real estate for a reasonable price. The lawyer is not involved at all in the representation of client and works exclusively in the estate-planning department of the firm, rather than in litigation. Must the lawyer nevertheless advise the client in writing of the desirability of seeking the advice of independent legal counsel, and obtain written informed consent from the client before proceeding with the purchase?

Yes, because a prohibition on conduct by an individual lawyer under the conflicts of interest rules would automatically apply to all lawyers associated in a firm with the personally prohibited lawyer, even if the first lawyer is not personally involved in the representation of the client.

Attorney represents Defendant in a criminal case in which Defendant is accused of assault causing bodily injury. Defendant details the events that led to the charge to Attorney. Attorney believes Defendant is not guilty and has defeated such charges against other clients in the past. Defendant asks Attorney to get him the best possible plea deal and explains that he does not want to take the case to trial. Attorney contacts Prosecutor who offers Defendant a reasonable settlement, but it requires the Defendant to serve jail time. Attorney refuses the offer and tells Defendant they are taking the case to trial because Prosecutor did not offer ideal plea. Is Attorney subject to discipline?

Yes, because attorneys shall abide by client decisions regarding plea deals, regardless of the attorney's opinion about the guilt or innocence of the defendant.

Big Firm represents hundreds of corporate clients out of a dozen offices in different states. The firm has no formal procedures in place to check for clients at the outset of representation for new clients, but the managing partner of the firm has an incredible memory and has never failed to spot a potential conflict of interest in the past. Attorney agrees to represent a new corporate client that owns many subsidiaries, and checks with the managing partner, who assured Attorney there are no potential conflicts. After the new corporate client had disclosed a substantial amount of confidential information, it emerged that some of its subsidiaries were directly adverse to other clients of Big Firm. Attorney was completely unaware of the potential conflicts at the time he agreed to the representation, despite asking the corporate client a few questions about the opposing parties in pending litigation it might have. Will Attorney be subject to discipline for not declining representation in this case?

Yes, because ignorance caused by a failure to institute reasonable procedures, appropriate for the size and type of firm and practice, will not excuse a lawyer's violation of the Rules regarding conflicts of interest.

Attorney represents Client, who is a defendant in a criminal matter. Defendant faces felony charges. Attorney is very experienced in handling this type of case, and knows from experience that defendants receive acquittals far more often in jury trials than in bench trials, at least with this type of case. Client, however, does not want to incur the legal fees involved in jury selection (voir dire, etc.), and cannot really afford it, so Client tells Attorney that he does not want a jury trial, but rather a bench trial. Attorney is convinced that Client is innocent of the crimes charged, and that a bench trial is likely to result in a wrongful conviction in this particular case, given some of the evidentiary issues. Attorney postpones notifying the court that the defendant will waive his right to a jury trial, in hopes of changing Client's mind. The court schedules jury selection, and Attorney goes and participates in the voir dire without telling his client, because he still hopes and believes that he will change his client's mind about the issue. On the first day of trial, Client arrives in court and is shocked to see a jury seated. Defendant stands and objects loudly to the jury and explains that he wants to waive his right to a jury trial and have a bench trial instead. The judge refuses to dismiss the jury at this point, informing the defendant that his opportunity to request a bench trial has passed. The trial proceeds and the jury acquitted Client of all charges, as Attorney had expected, and to the apparent dismay of the judge, who would have ruled to convict if it were up to him. Is Attorney subject to discipline in this situation?

Yes, because in a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to whether to waive jury trial.

Attorney represented Client in litigation over a breach of contract. After a long period of discovery, as the trial date approaches, the two parties make a new attempt at settlement negotiations, with each party's lawyer acting as representative. Client is the plaintiff in the case, and has told Attorney on several occasions that she will not consider any settlement offer less than $100,000. Client is a sophisticated business owner who has weathered litigation many times in the past, including litigation over a breach of a nearly identical contract term. Based on her experience, Client has made an informed estimate that her chances of winning a $250,000 verdict at trial are almost exactly 50%, and that trial expenses are likely to be around $50,000 whether she wins or loses, and from there she derived her reserve amount of $100,000. Attorney met with Client the evening before Attorney would meet with opposing counsel for negotiations, and Client reiterated her reserve amount to Attorney, adding, "Do not even call me if the opposing party offers less than $100,000 - I will not accept it, and I want you to simply decline lowball offers." The next day, Client leaves on a business trip, and Attorney heads to the settlement negotiation meeting, where opposing counsel offers $90,000 to settle plus a written apology from the defendant to Client for breaching their contract. May Attorney reject this offer without first consulting with Client?

Yes, because the client has previously indicated that the proposal will be unacceptable and has authorized the lawyer to reject the offer.

Three individuals plan to form a joint venture and ask Attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. They have already agreed that each individual will contribute exactly one-third of the startup funds for the venture, each will own a one-third share, each will have equal control over the Board, and each agrees to indemnify the others for a one-third share of any personal liability related to the joint venture. They have also agreed that they will have no non-compete agreements. The joint venture will hire managers, marketers, and other employees to operate the business. The three individuals are co-owners of a patent that could potentially be very lucrative when they bring it to market, and have known each other and worked together for a long time. The attorney cannot find any current areas of conflict between them, though he knows that it is technically possible that some unforeseen conflict could arise in the future. The shared objectives and goals of the group lead Attorney to conclude that no conflicts of interest are present and that it would be counterproductive to try to convince each member of the group to sign an informed consent form acknowledging that conflicts of interest exist and that Attorney may still represent everyone at once. May Attorney trust his professional judgment and proceed without obtaining separate consent forms from each person in the joint venture?

Yes, because the mere possibility of subsequent harm does not itself require disclosure and consent.

Attorney's new firm agrees to represent Client in an action against Corporation, which Attorney's previous law firm has represented for many years, and continues to represent in the present matter. Conglomerate's lawyers, that is, Attorney's previous firm, moves to disqualify Attorney's new firm from representing Client. The partners at Attorney's new firm were unaware that Attorney's previous employer represented Conglomerate, and the partners at her new firm first learned of this when they received the motion to disqualify their firm. The firm immediately implemented screening procedures to keep Attorney from working on the case or receiving or sharing any confidential information about the case or about Conglomerate's other legal matters. The firm provided notice to opposing counsel about the screening procedures and plans to provide periodic certifications of compliance as well. Should Attorney's new firm be subject to disqualification under these facts?

Yes, because the new firm did not implement the screening procedures soon enough.

Attorney represents Client, a wealthy executive, for the first time in a divorce case. Attorney learns that Client intends to purchase and develop several parcels of land in an undeveloped area on the outskirts of the city. Attorney also represents Physician in an estate planning matter. Attorney and Physician have a longstanding relationship. Attorney mentions the parcels of land that are for sale on the outskirts of the city, which Client brought to Attorney's attention. Attorney recommends that Physician also try to buy one of the parcels of land as an investment for the estate, knowing that the area will soon see development and the property values will increase. Even in the short term, Attorney knows that Physician could probably make a quick profit by buying a parcel and selling it to Client when Client gets around to purchasing the parcels. Attorney did not mention to Physician that Client was the individual planning to purchase and develop the parcels, or reveal anything about his representation of Client. Is Attorney subject to discipline?

Yes, because using information gleaned from representation of a client to the disadvantage of the client violates the lawyer's duty of loyalty, even when the lawyer uses the information to benefit a third person, such as another client.

Attorney sued Company on behalf of Client in a personal injury matter. During the protracted litigation that ensued, Conglomerate bought Company. Attorney was already representing Conglomerate in a regulatory compliance matter before a federal administrative agency. Assuming this development was unforeseeable at the outset of representing Client against Company, will Attorney have the option to withdraw from one of the representations in order to avoid the conflict?

Yes, but Attorney must seek court approval where necessary and take steps to minimize harm to the clients, and must continue to protect the confidences of the client from whose representation the lawyer has withdrawn.

Three co-owners of a successful startup business hire Attorney to help with working out the financial reorganization of their enterprise. Attorney seeks to resolve potentially adverse interests by developing the parties' mutual interests. In assenting to represent all the parties as clients simultaneously, Attorney agrees to adjust the relationship between clients on an amicable and mutually advantageous basis. The clients each provide written consent to the potential conflicts of interest. Is it proper for Attorney to represent three clients with potentially adverse interests in a negotiated transaction?

Yes, common representation is permissible where the clients' interests generally align, even though there is some difference in interest among them, so Attorney may pursue an agreement on an amicable and mutually advantageous basis.

Attorney agreed to represent Seller, who wishes to sell her business to Buyer, a sale already bogged down in protracted negotiations over sale price, outstanding liabilities, and certain trade secrets. Attorney also represents Buyer in unrelated litigation over custody of his children after a divorce. Buyer and Seller are not litigating against each other, and that Attorney represents each in completely unrelated matters. Must Attorney obtain informed consent from each client to undertake representation of Seller in the negotiations over the sale of the business?

Yes, directly adverse conflicts can also arise in transactional matters, and when a lawyer agrees to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer cannot undertake the representation without the informed consent of each client.

Two sisters are co-tenants of a house that they inherited from their father. They want to sell the house and hire Attorney to handle the real estate transaction. Attorney explains the potential for conflicts of interest in detail, and each sister readily agrees to provide written informed consent in the form of a waiver of future conflicts of interest. After a long period, they finally find a buyer who is interested in the house, but the buyer wants to impose several onerous conditions on the purchase, and engages in unreasonably protracted negotiations over the purchase price. The sisters themselves cannot agree on whether to accept any of the buyer's proposals, further dooming the negotiations. Eventually, one sister becomes frustrated with Attorney over the prolonged, hitherto unsuccessful negotiations, and fires Attorney. The other sister wants Attorney to continue the representation. With regard to the sister who seeks to discharge Attorney, may she do so?

Yes, each client in the common representation has the right to discharge the lawyer as stated in Rules of Professional Conduct and the accompanying Comments.

Attorney worked for a small plaintiffs' firm in Dallas, Texas. The firm undertook the representation of Victim, who suffered severe injuries in a traffic accident with a large truck, allegedly due to the truck driver's negligence. Attorney was not involved in the case at all another associate at the firm represented Victim in the lawsuit. Big Firm, which has offices in several states, is defending the trucking company in the personal injury lawsuit brought by Victim. Attorney's small firm has a single office and a computer network that allows the five lawyers there to share documents and files from all their cases with each other. Any lawyer in the firm could access all of the other lawyers' documents, which saved time as lawyers could copy and paste from various motions and pleadings that other lawyers had drafted previously on unrelated matters. Every Thursday afternoon, there was a mandatory meeting of the lawyers in the firm, in which they discussed whether to accept the cases of new potential clients, and they discussed how the pending litigation of each lawyer was proceeding. The lawyers exchanged advice and suggestions for one another's cases. Attorney did not make partner at the small firm, so he left and went to the Kansas satellite office of Big Firm instead. Big Firm assigned Attorney to work on the trucking company case, the same case in which his pervious firm represented the opposing party. Attorney had not worked previously on the case and had heard about it only in passing during the weekly litigation meetings at his previous firm, and now remembers almost nothing from the conversations. Should Attorney be subject to disqualification from defending the trucking company?

Yes, if a lawyer has general access to files of all clients of a law firm and regularly participates in discussions of their affairs, it creates an inference that such a lawyer in fact is privy to all information about all the firm's clients, and the burden of proof should rest upon the firm whose disqualification is sought.

Attorney has a private practice in a large rural township, and she specializes in commercial real estate transactions, such as the sale and lease of farmland, stables, granaries, and mills. As the only lawyer in the township with expertise in this area, she has represents most of the parties who buy and sell commercial real estate there. As a result, most of her clients pose potential conflicts of interest with other current, former, or future clients, so Attorney has a standard "waiver of future conflicts" form that explains conflicts of interest that typically arise in commercial real estate transactions, and she asks every client to sign it at the commencement of representation. Client is a major landholder in the township, who inherited extensive tracts of farmland from his family, who in previous generations were some of the original settlers in the area. Over the years, Client has sold off dozens of small parcels of farmland to neighboring farmers or small businesses such as honey processors, taxidermists, a hardware store, and a veterinarian. Client has also bought properties at times that were adjacent to his existing landholdings. Client has always used other lawyers for these transactions in the past, and in each previous instance, the other party had separate counsel. Client now wants to hire Attorney to sell a parcel to a real estate developer. Buyer (the developer) is also a client of Attorney on unrelated matters, but the Buyer has hired another lawyer to handle this particular matter. Client and Buyer have had a good working relationship in the past and have consummated a few transactions that went smoothly. When Client meets with Attorney to review and sign a retainer for this representation, Attorney includes with the retainer her standard "waiver of future conflicts" form, without additional oral explanation except to mention that she represents Buyer in an unrelated matter. Client reads the form and signs it. As the negotiations for the sale to the developer proceed, an unforeseen conflict emerges between Client's interests and the unrelated matters for which Attorney has represented the developer, as one will significantly affect the road traffic for the other. Is Attorney's standardized "waiver of future conflicts," signed by Client, likely to be effective in this situation?

Yes, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict.

Attorney represented Defendant in a criminal case involving serious felony charges. Defendant rejected all proffered plea bargains from the prosecutor, and insisted upon a jury trial, and he then expressed his desire to testify at his trial to assert his innocence. Attorney knew that it would be a disaster for Defendant to testify. First, Defendant initially confessed to the crime, but Attorney managed to have the confession excluded due to a technical defect in the Miranda warnings Attorney believed that the otherwise excluded confession will become admissible for impeachment purposes if Defendant took the stand and tried to assert a contradictory version of the facts. Defendant also has a long record of prior convictions involving fraud and embezzlement, which also would otherwise be inadmissible at trial, but will become admissible to impeach Defendant's credibility if Defendant actually testifies. Even worse, Attorney has confidential information that Defendant committed several related crimes to those charged in the case, and the prosecutor would probably be able to elicit testimony implicating Defendant in additional crimes if Defendant waives his Fifth Amendment rights and insists on taking the stand. Attorney knows the prosecutor in the case is notorious for aggressive cross-examination of witnesses at trial, and even teaches special training courses to other litigators on how to conduct merciless, devastating cross-examination. Finally, Defendant is not very articulate;he constantly uses street slang, gratuitous profanity, and incorrect grammar when speaking, which combined with his odd mannerisms, would be very alienating for most jurors. Attorney angrily explains all of this to Defendant, and then reminds Defendant that he already rejected several generous plea offers, insisted on a jury trial in a case where a bench trial would have been more strategic, and now is about to lose any chance of winning at trial due to his insistence about testifying. Attorney ends by saying, "There is no way I will allow you to testify in this case;it would be malpractice on my part." Defendant understands this to mean that he has no choice, so he gives up and does not testify. The trial went well and the jury acquitted Defendant of all charges. Would Attorney be subject to discipline under these circumstances?

Yes, in a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to whether the client will testify.

A producer of popular energy drinks and the owner of a popular chain of video-rental kiosks wanted to undertake a joint venture to distribute energy drinks and DVD rentals through the same kiosks. They approached Attorney to work out the details of the joint venture and draft the necessary legal documents. Attorney would provide common representation to both as clients in the matter. As part of obtaining informed consent from the clients regarding potential conflicts, Attorney explains that all information would be shared, even information that otherwise would have been confidential information in a normal representation with a single client. Attorney explains he will have to withdraw if one client decides that some matter material to the representation should be kept from the other. The energy drink maker, however, has a secret formula for the drinks, and the DVD kiosk owner has a trade-secret method of tracking the distribution and stocking of the DVDs in the kiosks minute-by-minute. Neither wanted the other to discover their trade secrets, but Attorney may eventually possess the secrets as part of his document review for the joint venture. Neither client actually needs to know the trade secrets of the other, however, in order to proceed with the joint venture. Attorney concludes that failure to disclose one client's trade secrets to another client would not adversely affect the representation in this case, and agrees to keep that information confidential with the informed consent of both clients. Is Attorney's conduct proper?

Yes, in limited circumstances like this, it would be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential.

Attorney represents Client in a civil matter, and has represented Client several times before. Client and Attorney purchase a piece of property together, with an appraisal value of $4 million. Each contributes fifty percent to the purchase price. Client received a five percent interest in the property and Attorney receives a ninety-five percent interest in the property. Attorney received a greater interest in the property as payment for representing Client for several traffic citations recently, with the total fees being around $2000, but the value of the representation is far less than the value of the additional interest Attorney received in the property. Client was represented by independent legal counsel for the property purchase. Is Attorney subject to discipline?

Yes, the business transaction must be fair and reasonable even when the client obtains representation by independent legal counsel, though representation by counsel will be a factor in determining the fairness of the transaction.

Attorney was a judge for several years. Near the end of her tenure as a judge, she functioned in the role of the chief administrative judge in that court, assigning cases to the other judges and supervising their work, and had only a limited docket of her own trials. Attorney then left the bench and opened her own law practice. Attorney agrees to represent Client in a matter in the same court house where Attorney formerly served as a judge. Attorney even remembers the case, but only the names of the parties and the nature of the action, because she assigned it to the trial judge who currently has the case on his docket, but Attorney had no other involvement in the matter. Client's previous lawyer in the matter was subject to disqualification at the motion of the opposing party due to a conflict of interest. Is it proper for Attorney to represent Client in this matter?

Yes, the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits.

Attorney represented Husband twenty years ago in a divorce with Husband's first wife. Husband is a well-known local celebrity, a retired professional athlete who became a semi-successful actor and an outspoken advocate of a radical political cause. Recently, Husband's third wife approached Attorney asking him to represent her in obtaining a divorce from Husband. There are no children from the marriage - their children from previous marriages are now adults - and the distribution of assets will follow the terms of a carefully drafted prenuptial agreement between Husband and his third wife, which Husband's new lawyer drafted for them. Husband long ago provided written informed consent for future conflicts of interest if Attorney represented another party with adverse interests to Husband. Attorney does not believe that any confidential information learned from representing Husband twenty years ago in his first divorce will be relevant to the pending third divorce. On the other hand, there is regular media coverage of Husband's trysts and on-and-off sexual relationships with various actresses and female socialites in the area, and marital infidelity could trigger certain except clauses in the prenuptial agreement. Can Attorney use the information about Husband's recent indiscretions in representing the third wife?

Yes, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.

Three individuals hire Attorney to represent them as co-defendants in a tort action. Attorney tells them that there could be a potential conflict of interest if he represents all three of them, and that they will need to sign informed consent forms, which they do. The three individuals have common goals and interests in the litigation, so they do not hesitate to sign the forms or inquire further about the implications of the potential conflicts. No further discussion occurs about the issue, and Attorney proceeds with the representation. Could Attorney be obligated to withdraw from representation later in the litigation, if the clients gave written consent to the shared representation at the outset?

Yes, when representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved.

Two brothers work together in a family landscaping business, and each is a named defendant in a lawsuit over a broken sewage pipe on a client's property where the brothers were digging holes to plant new trees. The two brothers hire their family's lawyer, Attorney, to represent them. Though the brothers get along reasonably well, there are a number of topics they avoid discussing, especially related to family matters and the inheritance, and who is to blame for some lost clients and damaged equipment in the recent past. Attorney explains the potential for conflicts of interest in the common representation and asks if they are willing to sign a waiver to the conflicts. One asks the lawyer privately about the issue of confidentiality and privileged information, because it is possible that litigation could emerge within the family later over various issues - the inheritance, control of the business, liability for business losses, and even a marital dispute. Does the common representation have implications for the attorney-client privilege?

Yes, with regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach, and lawyers should assume that if litigation eventuates between the clients, the privilege will not protect any such communications.

What is the most frequently occurring enforcement mechanism for the rules regarding conflicts of interest?

Disqualification from representation at the request of the opposing party in litigation