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Flashcards in Conflicts of Interest Deck (42)
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1
Q

When is a lawyer prohibited from representing a client?

A
  1. The representation would violate the Rules or other law; or
  2. The lawyer’s physical or mental condition would materially impair the lawyer’s ability to represent the client.

Rule 1.2(b)

2
Q

Can a lawyer take inconsistent legal positions in different tribunals at different times on behalf of different clients?

A

Generally yes. But, 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.

Rule 1.7, comment 24

3
Q

Can a lawyer enter into a business transaction with a client, or knowingly acquire a possessory interest adverse to the client?

A

No, unless:

  1. The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted clearly in writing;
  2. The client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
  3. The client gives written informed consent to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Rule 1.8(a)

4
Q

Can a lawyer use confidential information obtained from a client to benefit the lawyer or third party?

A

Yes, unless the information disadvantages the client, in which case the client must give informed consent.

Rule 1.8, comment 5

5
Q

If a lawyer is representing two or more clients, does the lawyer need to disclose each individual’s settlement amount?

A

Yes, the lawyer must disclose all material terms of the settlement, including what each client will receive, and get written informed consent from each client.

Rule 1.8(g)

6
Q

Can a lawyer have a sexual relationship with a client?

A

No, unless a consensual relationship existed prior to the lawyer-client relationship.

Rule 1.8(j)

7
Q

When the lawyer is representing a corporation, does the prohibition on sexual contact apply? (i.e. Is a lawyer prohibited from having sexual relations with employees of an organization they are representing?)

A

Prohibition only applies to those who supervise, direct or regularly consult with the lawyer concerning the organization’s legal matters.

Rule 1.8, comment 19

8
Q

Can an attorney solicit or prepare a will that gives a substantial gift to the attorney?

A

No, unless the client is someone with whom the lawyer maintains a close, familial relationship.

Rule 1.8(c)

9
Q

Can lawyers solicit substantial gifts from clients?

A

No, but they can receive simple gifts (presents given at a holiday or as a token of appreciation) as long as they meet the general standards of fairness.

Rule 1.8, comment 6

10
Q

Can a lawyer acquire literary or media rights for a pending representation?

A

No because it creates a conflict between the interests of the client and the personal interests of the lawyer.

Rule 1.8, comment 9

⚠️ Note: The lawyer can, however, represent the client in a transaction concerning literary property and have the lawyer’s fee consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and paragraphs 1.8(a)and (i).

11
Q

What is the lawyer required to do if opposing counsel is a close relative?

A

Withdraw from the case unless the client gives informed consent.

Rule 1.7, comment 11

12
Q

Can a lawyer represent two parties in the same litigation (i.e. on the opposite side of the “v”) if they obtain informed consent?

A

No, a lawyer may not represent opposing parties in the same litigation, regardless of the clients’ consent.

Rule 1.7, comment 23

13
Q

When does a concurrent conflict of interest exist?

A

If:

  1. The representation of one client will be directly adverse to another client; or
  2. There is a significant risk that the representation will be materially limited by the lawyer’s personal interests or responsibilities to another client/third party

Rule 1.7(a)

14
Q

When can a lawyer still represent a client if a concurrent conflict of interest exists?

A

If:

  1. The lawyer reasonably believes that they will be able to provide competent and diligent representation to each affected client;
  2. The representation is not prohibited by law;
  3. The representation does not involve two clients directly adverse to one another in the same proceeding; and
  4. Each affected client gives written informed consent

Rule 1.7(b)

15
Q

What must the client be aware of to give proper informed consent?

A
  1. The relevant circumstances and material;
  2. The reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client.

See Rule 1.0(e)(informed consent)

16
Q

When there are multiple clients being represented in a single matter, what information must be included to obtain informed consent?

A

The implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved.

Rule 1.7, comments 30 and 31

17
Q

What type of writing does informed consent require?

A

Either a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent.

Rule 1.0(b)

18
Q

Does simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation constitute a conflict of interest?

A

Generally no, and as such, client informed consent is not needed.

19
Q

Can a client revoke their consent for a waiver of conflict at any time?

20
Q

Can a lawyer represent multiple defendants in a criminal case if they obtain informed consent?

A

No, the potential for conflict with multiple criminal defendants is so grave that the lawyer must decline representing both.

Rule 1.7, comment 23.

⚠️ Note: Common representation of persons having similar interests in civil litigation is proper if Rule 1.7(b) is met.

21
Q

Who is considered a prospective client?

A

Those who consult with a lawyer about the possibility of forming a client-lawyer relationship.

⚠️ Note: A person is not a perspective client if they communicate unilaterally to the lawyer without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship.

Rule 1.18, comment 2

22
Q

Can a lawyer reveal information learned from a prospective client?

A

No, even if no lawyer-client relationship ensues except as permitted by Rule 1.9.

Rule 1.18(b)

23
Q

Can a lawyer represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter?

A

If the lawyer received information that could be significantly harmful to the client, then no, unless:

  1. Both the affected and the prospective client give written informed consent; or
  2. The lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
  3. The disqualified lawyer is timely screened and apportioned no part of the fee; and
  4. The prospective client is promptly given written notice.

Rule 1.18(c)

24
Q

Can a lawyer require a prospective client to agree that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter?

A

Yes, via written informed consent. Rule 1.18, comment 5.

25
Q

Can lawyer who has formerly represented a client in a matter represent another person in the same or a substantially related matter afterwards?

A

Yes, as long as the person’s interests are not materially adverse to the former client’s interests.

If the interests are adverse, then the former client must consent in writing after consultation.

Rule 1.9(a).

26
Q

Can a lawyer represent a client in a substantially similar matter in which the lawyer’s former firm represented a client with adverse material interests?

A

No, unless the former client gives written informed consent.

Rule 1.9(b)(2)

27
Q

Can a lawyer knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client about whom the lawyer had acquired privileged information?

A

No, unless the former client gives written informed consent.

Rule 1.9(b)(2).

28
Q

Can a lawyer whose former or present firm formerly represented a client reveal information relating to the representation of the former client?

A

No, unless the Rules would allow it or the information is generally known.

Rule 1.9(c)

29
Q

Can a third party pay for another’s legal costs?

A

Yes, as long as:

  1. The client gives informed consent;
  2. There is no interference with the lawyer’s professional judgment or the client-lawyer relationship; and
  3. Lawyer-client confidentiality under Rule 1.6 is maintained (i.e. the lawyer cannot reveal information to the payor).

Rule 1.8(f)

30
Q

True or false: Under the Model Rules, a firm of lawyers is essentially one lawyer for purposes of client loyalty and conflicts of interest.

31
Q

What is imputed disqualification?

A

If one lawyer in the firm would be disqualified from representing a client, then all lawyers will be disqualified (i.e. conflicts are imputed to one another).

Rule 1.10(a)

32
Q

Disqualification is not imputed to other lawyers under which two circumstances?

A
  1. The disqualification is based on personal interests of the disqualified lawyer and there is no significant risk of materially limiting the representation of the client;
  2. Prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm and disqualified lawyer is timely screened, given no part of the fees, and notice is given to the client. See Rule 1.10(a)(2)(i-iii).

Rule 1.10(a)

33
Q

If an imputed confiict is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, when is representation allowed?

A
  1. Disqualified lawyer is timely screened and receives no part of the fees;
  2. Client is given prompt written notice, including a description of the screening procedures employed; a statement of the firm’s compliance with the Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections about the screening procedures; and
  3. Certifications of compliance with the Rules and with the screening procedures are provided to the former client upon the former client’s written request and upon termination of the screening procedures.

Rule 1.10(a)(2)

34
Q

If a new lawyer is properly screened in accordance with the model rules, what happens if the former client still objects?

A

As long as the new lawyer was properly screened, client objection is irrelevant because consent wasn’t required, only notice.

Rule 1.10

35
Q

Can a partner receive compensation directly related to a matter from which they are disqualified?

A
36
Q

If a lawyer no longer works at a firm, is the firm prohibited from representing a person who has interests materially adverse to those of a client the lawyer formerly represented?

A

No, unless:

  1. The matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
  2. Any lawyer remaining in the firm possesses protected confidential information that is material to the matter.

Rule 1.10(b)

37
Q

Can a disqualification under Rule 1.10 be waived by the affected client?

A

Yes, but this is rare.Rule 1.10(c).

38
Q

Can a former government lawyer join a firm that has clients with direct conflicts with the government agency, and about which the attorney possesses protected information?

A

Yes, as long as the lawyer does not represent a client in connection with a matter in which the lawyer has personally and substantially participated as a public employee unless the government agency gives written informed consent.

Rule 1.11(a).

39
Q

If a lawyer formerly worked for the government and joins a new firm, can lawyers in new firm handle matters the lawyer participated in while in public service?

A

Yes as long as:

  1. The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
  2. The appropriate government agency is given prompt written notice so that it can ascertain compliance with the provisions of Rule 1.11(b).

Rule 1.11(b)

40
Q

Can a lawyer represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer (arbitrator, etc?)

A

No, unless all parties give written informed consent. Rule 1.12

41
Q

If a lawyer is disqualified under Rule 1.12 (former participation as a judge, etc), can other lawyers in the same firm represent the matter?

A

Yes, if:

  1. Disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee; and
  2. Parties involved are given prompt written notice so that they may ensure compliance with the provisions of this Rule.

Rule 1.12(c)

42
Q

Is an arbitrator selected as a partisan of a party in a multimember arbitration panel prohibited from subsequently representing that party?

A