Conflicts of Interest
Terms in this set (41)
Concurrent Representation of Conflicting Interests - Two subcategories
i. Concurrent representation: conflicts arise between two present or prospective clients or between one present and one prospective client
ii. Successive representation: conflicts between former client and present or prospective client
Rule on Concurrent Conflicts
Lawyer shall not represent client if concurrent conflict - 1.7
Concurrent conflict exists if
1. The representation will be directly adverse to another client OR
2. There is a substantial risk that representation will be materially limited by responsibilities to another/former client or third person
Directly Adverse Representation
Representing an opposing party in another lawsuit - affects how client views the lawyer's loyalty
Materially Limited Representation
Risk that one representation will be materially limited by the lawyer's responsibilities to another client, a third person, or by the lawyer's own interests
Despite conflict, lawyer may represent client if all the following are met - 1.7(b)
1. Lawyer reasonably believes he will be able to provide competent and diligent representation to each affected client
2. Representation is not prohibited by law
3. Representation does not involve same litigation (can't represent both parties in same litigation, but can represent both in separate)
4. Each affected client gives informed consent, confirmed in writing
Must meet requirements 1-3 or nonconsentable!
Hot Potato Doctrine
In some situations lower cts have held it is improper to drop old client "like a hot potato" to take on new more lucrative client
Remedies for conflicts
1. Basis for disqualification, fee forfeiture, setting aside contract or gift
2. May provide for malpractice action, including possibility of punitive damages
Disqualification of an entire firm because one lawyer within a firm has a disqualifying conflict - 1.10
Concurrent representation in criminal litigation
Different conflicts issues than civil because D are entitled to constitutional protections
Courts duty to look into multiple representation in criminal cases- If objection has been raised
a. Fed. R. Civ. P. 44(c) requires fed cts to hold a hearing to determine whether representation will cause conflict of interest
b. State cts must investigate timely objections to conflicts - Holloway v. Arkansas
Courts duty to look into multiple representation in criminal cases - If no objection has been raised
1. If no objection, than no requirement that ct inquire
2. But attorney has ethical obligation to: avoid conflicting representation and to advise both ct and client of conflicts
3. If no objection than D has obligation to show actual conflict that adversely affected lawyer's performance
4. Ct can insist on separate representation and refuse D waiver to conflict
If a judge knows or should know that a conflict exists, can she step in?
Yes. Cuyler v. Sullivan.
Concurrent representation in criminal litigation - Ways to prevent conflict
1. Courts disfavor joint representation - hold hearing to ensure clients realize risks from joint and that any potential conflicts are waived
2. Attorneys aren't appointed to 2 or more clients to prevent problems with pleas
3. Don't let 1 client pay all the fees
4. Prevent working together on testimony because could result in cooperative perjury
Are Transactional Conflicts consentable?
Depends on circumstances. Clients interests cannot be fundamentally antagonistic to each other, but can have interests generally aligned with some differences - comment 28 to 1.7
Can a single lawyer represent both spouses in court in a divorce case?
No. Prohibited by 1.7. But could handle the matter prior to court room stage.
What must a lawyer do to represent both parties in a real estate transaction?
i. Disclose great deal of info relating to the representation
ii. Obtain informed consent in writing
What should a lawyer disclose in a real estate transaction if representing both parties?
1. Interests of the lawyer and other client
2. Considerations and alternative courses of action that could be foreclosed or made less available because of conflict
3. Effect of representation upon confidential info
4. Material reservations that disinterested lawyer may have about arrangement if lawyer were representing only that client
5. Consequences and effect of future withdrawal of consent by client
Successive Representation - General Rule
Lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interest of the former client - 1.9(a)
Successive Representation - A conflict exists if:
a. Lawyer had attorney-client relationship with former client
b. Present client's matter is same or substantially related matter as previous client
c. Interests of second client are materially adverse to first client's
d. Former client did not consent to representation after consultation
May the rule on successive representation apply to firms?
Yes. Lawyer shall not knowingly represent a person in the same or substantially related matter in which a firm with which the lawyer formerly was associated had represented a client whose interests are materially adverse and about whom lawyer acquired info protected under 1.6 and 1.9(c) - 1.9(b)
Can a former client give consent to successive representation? What limitations are there on consentable matters?
Former client can give informed consent confirmed in writing.
No limitations to consentable matters as in concurrent conflicts.
Duty of Confidentiality to Former Clients
i. Lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter - 1.9(c)
1. Use info relating to former representation to disadvantage of former client
2. Reveal info relating to the representation except as these rules would permit or require
Define "matter" under 1.9
depends on facts of situation; whether lawyer is so involved in matter that subsequent representation can be justly regarded as changing sides
Define "substantially related" under 1.9
Involve the same transaction or legal dispute or is a substantial risk that confidential factual info as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter
General problem of a potential client contacting a lawyer and revealing confidential info to the lawyer, but then not hiring a lawyer, solely for the purpose of ensuring that the lawyer will be conflicted out
Individual conflicts of one lawyer may be imputed to whole firm
Rule on Imputed Conflicts
When lawyers are associated in a firm, none of them shall knowingly represent a client when one of them practicing alone would be prohibited from doing so by rules 1.7 (current) or 1.9 (former), unless prohibition is based upon personal interest and does not present significant risk of materially limiting representation of the client by the remaining lawyer - 1.10
Exceptions to Imputed Conflicts Rule
i. Prohibition is based on personal interest and there is no risk of materially limiting representation of client by remaining lawyers in firm - 1.10(a)
ii. Written informed consent - requirements laid out in 1.7 - 1.10(c)
Migratory Lawyers - New Firm
1. Lawyer can't represent client if old firm represented adverse client and lawyer knows material info about matter 1.9(b) (unless client gives informed written consent)
2. If that lawyer is disqualified, whole firm may be imputed under 1.10(a) (see outline)
Migratory Lawyers - Old Firm
1. When lawyer leaves, old firm is not disqualified from representing person with materially adverse interests unless - 1.10(b)
a. Matter is same or substantially related to that in which the formerly associated lawyer represented the client and
b. Any lawyer remaining in the firm has material confidential info protected by 1.6
Preventing the conflicted attorneys from contact with case so firm can still represent client
Screening not allowed in Kansas rules or in majority of states.
Kansas applies no screening rule to secretaries and legal assistants (law students)
Allowed for former gov lawyers that have moved to private practice - as long as effected lawyer is screened and gov agency consents - 1.11(a)
Screening and Model Rules
1. Sets out new requirements to allow firm to represent client when attorney at firm has conflict
2. Permits screens for concurrent and successive clients
3. Firm certifies that there is conflict and that it has been addressed - guarantees that there will be disciplinary proceedings if this is incorrect
MR 1.10 Comment 4
Representing an Organization
1. Lawyer employed or retained by an org represents the org acting through its duly authorized constituents - 1.13
2. Rule adopts the "entity" theory - lawyer represents org, not the people
3. The officers, employees, or board members may also be separate clients, in which case a conflict of interest can be presented
When does an organization's lawyer have a duty to an organization's directors, officers, etc. as to the identity of her client?
Kansas: When it is apparent that the org's interests are adverse to those of the constituents with whom the lawyer is dealing -1.13(d)
Model Rules: Lawyer must explain/identify only when he knows or reasonably should know that the org's interests are adverse - 1.13(f)
Insured and Insurer - All Jurisdictions
In all jurisdictions the lawyers for insured owe at least some obligation to insurance co, but insured retain all the rights of ordinary clients unless they waive or contract away those rights
Receiving Compensation from Third Party
Lawyer shall not accept compensation for representing a client from one other than the client unless
1. client gives consent,
2. there is no interference with the lawyer's independence of professional judgment or attorney-client relationship, and
3. info relating to representation is protected under 1.6 - 1.8(f)
Insured and Insurer - Majority of States
1. Only the insured is the client and it is just in his interest to cooperate with the insurance co
2. Lawyer cannot abide by restrictions set by insurance co if they would materially impair his professional judgment or ability to provide competent representation
3. Lawyer still owes a duty of care to the insurance co
Insured and Insurer - Minority of States
Insurer is co-client
May an insurance company by liable to the insured for refusing a reasonable settlement offer?
The insured has a claim for breach of K against insurance company.
The lawyer is not liable unless bad advice was given to client.
Can the insured fire the lawyer at any time?