Conflicts Of Interest

Front 1

Advocate-Witness rule: 3.7

Back 1

when the lawyer is called as a witness by either side, an attorney cannot act both as an advocate for his client and witness on his client's behalf UNLESS:
-the testimony will relate solely to an uncontested matter.
-the testimony will relate solely to a matter of formally and there is no reason to believe that substantial evidence will be offered in opposition.
-the testimony relates solely to the nature of the legal services.
-refusal would work substantial hardship on the client because of the value of the lawyer in this case.

Front 2

Conflicts: strategy:

Back 2

1. Identify/diagram relationships
2. Think: first about value, then about rules: 1.7: is there a conflict? 1.7a2: directly adverse, 1.7a1: materially limited
3. Ascertain whether there is a conflict of interest
4. Consentable?: 1.7b: explain facts, downside risks: 1.7b1: L belives that will able to provide competent and diligent rep to each affected client (objectively reasonable), OR 1.7b2: the representation is not prohibited by law, OR 1.b3: assertion of a claim by one client against another client in the same litigation, AND 1.7b4: each affected client gives informed consent in writing.
5. Whether affected clients have given FULL informed consent
6. Confidentiality: idea of consent to disclose confidentiality just talk about informed consent.
7. Can it be imputed? 1.1(a) yes, except personal conflicts.

***make sure to differentiate between whether there is a conflict and whether it is consentable.

Front 3

"Business" Conflicts: 1.8

Back 3

when conflict arises between L's own interest and that of her client. Can only enter into a business transaction with a client/gain an economic interest adverse to a client if:

1. Terms are fair to client and fully disclosed in writing (fair & reasonable to outside 3P & Fully disclosed)
2. Client is advised in writing to seek independent counsel; and
3. Client gives informed written consent.

*Neville case. Argue that 1.8a rule on applies if you are a lawyer in THAT deal as opposed to a lawyer in general.

Front 4

Fee-payor interests: 1.8(f)

Back 4

A lawyers shall not accept compensation for representing a client from one other than the client unless:
1. the client gives informed consent;
2. there is no interference with the lawyer's independence of professional judgement or with the client-lawyer relationship; and
3. information relating to representation of a client is protected as required by Rule 1.6

Front 5

Neville

Back 5

Nevill has been repping business person in a number of circumstances. The particular deal comes up and atty wants to act as an investor.

Responsibility on Neville to explain risks to getting involved of atty getting involved in the transaction? YES

Neville say: "I wasnt atty on THAT deal, and the client is sophisticated"--regardless lawyer has fidcuiary duty

Front 6

Atty is lawyer and realtor

Back 6

problem is you want sale (as broker) and as lawyer you want to slow the process down.

Burden on proving fairness is onthe lawyer

Rule 1.8 vioaltion can entitle the client to void the business agreement with the lawyer

Front 7

Atty getting paid in stock

Back 7

1.8: cant be part-owner of client
ABA: possible, but requires informed, WRITTEN consent

Front 8

Media Rights

Back 8

cannot negotiate media rights/deals prior to termination of A-C relationship

Front 9

Insurance co. hires you to defend someone

Back 9

client is not the insurance company; client must consent to arrangement and company cannot interfere with the independence and professional judgement or with the lawyer-client relationship.

Front 10

1.7: Concurrent conflict of Interest

Back 10

You can have conflict with regard to a current conflict, a former client, and personal conflicts.

1.7(a): direct conflict (you are representing the other side)
1.7(b): material limitation; indirect conflict

KEY: the lawyer has responsibility to step back and be able to argue to himself that it is REASONABLE to think that he can give full and adequate representation.

Client must give informed consent in writing; means nothing without above, though.

So, 2-part test:

1. reasonable to go forward (REASONABLE IS KEY)
2. get written consent

Front 11

1.7 interpretation arguments

Back 11

"aversely": how adverse? personal? legal? business, positional, and legal conflicts.

"unrelated": in law, cases can be related in many different ways: on basis of facts, law.

TPT: concurrent is about LOYALTY

Front 12

1.7 consent issues

Back 12

sophistication of client is significant in determining adequate consent: want more detail form less sophisticated clients; blanket advanced consents only work for sophisticated clients.

*Waiver: if client knew of waiver and did not object, then court might infer waiver, especially if delay in objecting was a tactical maneuver.

Front 13

1.7: client-client conflicts:

confidentiality and privilege in Joint-defense and multiple representation

Back 13

communication between 2 or more clients and 2 or more lawyers may be privileged if in furtherance of a joint defense or common interest (exception to 3rd party exception of A/C priv.)

rules:

-conversations with both covered by a-c privilege
-one client in joint rep cannot waive confidentiality; need unanimity
-neither party may exercise the a/c privilege in subsequent controversy with the other
-once clients "split" no A-C privilege

Front 14

1.7 hypo: joint rep: what if C1 tells you something bad about himself that would help C2?

Back 14

have duty of confidentiality and duty to inform; split in authority about what you do first, ultimately, drop entire representation.

*L should write out arrangement with groups of people spelling out what is confidential and privileged.

Before you drop rep, you still need to do something...

********ABA says go with confidentiality; Gillers/Restatement: duty to inform is stronger.

Front 15

1.7 Eureka exception

Back 15

Lawyer with multiple clients but lawyer from beginning botched relationship.

1. lawyer did not recognize it and did not fix it. Have two defective representations that are conflicted--what is going to be the workout of that representation?
2. If initially conflicted, have defective representation, all conversations will be vulnerable
ABILITY TO PROTECT CONVO IN THE FUTURE DEEPLY COMPROMISED.

Front 16

1.7: Business Start-up hypo

Back 16

3 clients come into you office and want to start a business, who do you represent?

Can you give index, unbiased advice to each? (foresee all conflicts)

1. dont give a lot of advice at outset; lay out a range of options and encourage a second opinion.
2. make clear there is NO confidentiality among group members.
3. all have A/C priv., but conversations outside presence of atty is not covered, and there is no confidentiality AMONG GROUP.

*once business is launched, the BUSINESS is your client.
SPLIT: some authority suggests that the individuals were never clients (if you rep corp, dont rep SHs); others say individuals are now former clients.

Front 17

1.7: insurance triangle

Back 17

even though insurance company hires lawyer, "client" is insured.

Possible for in-house attorney at insurance company to rep insured? Split, but trending to yes; as long as insured is notify of possible conflicts.

What f lawyer discovers insured's actions falls outside of policy, tell company? No; A/C priv, loyalty.

Front 18

1.7: positional conflicts

Back 18

occurs when arguing opposing sides of the law.

Rule: cant check all possible positional conflicts, so there is some leniency here.

Bottom line: if one position will substantially undermine the other position and hurt your client, either need to not take rep or inform client of problem.

Front 19

3.7: Advocate-Witness rule

Back 19

3.7(a): a lawyer shall not act as advocate at a trial in which the lawyer is likely to be necessary witness unless:

1)the testimony relates to an uncontested issue;
2)the testimony related to the nature and value of legal services rendered in the case; or
3) disqualification of the lawyer would work substantial hardship on the client.

(b): a lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by rule 1.7 or 1.9

Front 20

Criminal Cases (Defense attorneys): importance of constitutional protections to criminal defendants:

Strickland v. Washington

Back 20

Issue of concurrent conflicts occurs: between clients in criminal representation arise when a single lawyer represents 2 or more Ds or persons under investigation.

If D's are convicted, may challenge the lawyer's performance as constitutionally ineffective (6th amendment).

Defense counsel hav an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.

*In order to establish a vilation of 6th amendment, D who raised an objection at trial must demonstrate ACTUAL conflict of interest adversely affected the L's performance; possibility is insufficient.