Florida Professional Responsibility Rules - Conflict of Interests


Terms in this set (...)

1. Identify the client or clients

2. determine whether a conflict of interest exists (whether the lawyer's judgment may be impaired or the lawyer's loyalty may be divided if the lawyer accepts or continues the representation)

3. decide whether the representation may be undertaken despite the existence of a conflict (whether the conflict may be waived by the client with informed consent)
Current Clients - General Rule
Lawyer must not represent client if:

1. representation of one client will be directly adverse to another

2. there is a substantial risk that representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, former client, third person, or a personal interest of the lawyer

A lawyer may not represent opposing parties in the same lawsuit or transaction
Exceptions to General Rule (Current Clients)
If the lawyer

1. reasonably believes that he can provide competent and diligent representation to each affected client

2. representation is not prohibited by law and does not involve the assertion of another client's adverse position if both clients are represented in the same proceeding before a tribunal and

3. each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing
Representing Multiple Clients in a Single Matter
Consultation must include an explanation of the implications of the common representation as well as the advantages and risks involved
Multiple Clients and Aggregate Settlements
if a lawyer represents two or more clients, they must not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or solo contendere please.

However, if each client fives informed consent in a signed writing, then it is permitted, but the lawyer must not disclose the existence and nature of all claims involved and the participation of each person in the settlement.
Current Clients and Former Clients
Duty of loyalty to a client extends beyond the duration of the representation and can limit a lawyer's ability to represent other clients or use information obtained in representing the former client
New Client Representation Materially Adverse to the Former Client
lawyers who have previously represented a client in a matter must not subsequently represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client UNLESS former client gives informed consent
Scope of the Matter
If a lawyer was directly involved in a specific transaction, then subsequent representation of other clients with materially adverse interests in that transaction is clearly prohibited.

if commonly handled a type of problem for a former client, not prohibited from later representing another client in a factually different problem of the same type even though the subsequent representation involves a position adverse to the prior client
Substantially Related
involve the same transaction or legal dispute or involve substantial risk that confidential factual information normally obtained in the prior representation would materially advance the new client's position in the subsequent matter.
Use of Information Obtained in Former Representation
if formerly represents client or whose present or former firm has formerly represented a client in a matter is not permitted to use confidential information relating to the representation of the former client to the former client's disadvantage or reveal confidential information relating to the the representation

waiver by informed consent
Related Opposing Lawyers
a lawyer related to another lawyer (parent, child, sibling, spouse) must not represent a client in a representation directly adverse to a person whom the lawyer knows is represented by the other related lawyer unless informed consent is given. this conflict is not imputed on the rest of the firm.
Acquiring Interests in Litigation
Generally, a lawyer must not obtain a propriety interest in the COA or SM of litigation in which a client is represented, except a lawyer MAY:

1. acquire a lien granted by law to secure payment of a fee and

2. contract with a client for a reasonable contingent fee
Financial Assistance
cannot provide financial assistance to a client with respect to a pending or contemplated litigation.

MAY advance court costs and litigation expenses to the client

client must remain liable for such costs, repayment may be made contingent on the outcome of the case.

if representing an indigent client, a lawyer may advance court costs and litigation expenses on behalf of the client
Business Transactions
L must not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, except a lien granted by law to secure a lawyer's fee or expenses UNLESS:

1. transactions and terms on which he acquires an interest are (a) fair and (b) reasonable to the client and are fully disclosed and transmitted in writing in a way that can be reasonably understood by the client

2. the client is advised in writing of the desirability of seeking independent counsel and is given a reasonable opportunity to do so and

3. the client gives informed consent in a signed writing.
Literary or Media Rights
L is prohibited from negotiating for or entering into any arrangement for literary or media rights relating to representation of a client or prospective client prior to the conclusion of all aspects of the matter that gave rise to the representation.

NOTE: situations in which a lawyer acquires literary or media rights from a client based on a previous concluded matter in which the lawyer represented the client, as payment for representation of that client in a current matter. This is permissible and does not violate the RPC.
Literary Rights Exception
Client Joe is being sued for defamation. He offers to pay Attorney Bob an amount of money from the proceeds of the book he is writing about his highly publicized murder trial in which Attorney Bob represented him five years ago. The murder case has been completely concluded. Attorney Bob can validly enter into an agreement with Client Joe for the proceeds (literary interest) of Client Joe's book.
a lawyer may accept an unsolicited gift from client if the transaction meets general standards of fairness

a present given at a holiday or as a token of appreciation is permitted. If a client offers the lawyer a more substantial gift, then the rule does not prohibit the lawyer from accepting it, but such a gift may be voidable by the client.
Soliciting Gifts and Wills
A lawyer must not solicit any substantial gift from a client, including a testamentary gift, or prepare an instrument on behalf of a client giving the lawyer or his parent, child, sibling, or spouse any substantial gift from a client, unless the lawyer or recipient is related to the client.
Settlement of Legal Malpractice Claim
L prohibited from settling a malpractice claim with an unrepresented or former client without first advising that person in writing that independent representation is appropriate
Promise to Limit Malpractice Recovery
L is prohibited from making an agreement prospectively limiting malpractice liability to a client, unless permitted by law to do so and client is independently represented in making the agreement.