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9 Cards in this Set
- Front
- Back
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1.7 v. 1.9
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1.7 is about loyalty
1.9 is about confidentiality Reasonableness: for 1.9, a lawyer does NOT have to do initial "reasonableness inquiry" prior to obtaining consent. CONSENT IS GOLDEN. Relatedness: 1.9 does not prohibit you from being adverse to a former client unless they are SUBSTANTIALLY related |
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1.9: Successive conflicts
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A lawyer who formerly represented a client cannot thereafter represent another person IN THE SAME OR SUBSTANTIALLY RELATED MATTER in which that persons's interests are materially ADVERSE to the former clients, UNLESS the former client gives informed consent in writing.
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1.9: 4 requirements
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1. former client
2. now adverse 3. with regard to a substantially related matter 4. confidential information If all 4 are met and Lawyer does not get consent, he is dead meat. |
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1.9: Lawyer's former firm
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without informed consent in writing by the former client, a lawyer shall not knowingly represent a person in the same or substantially related matter in which the LAWYER'S OLD FIRM had previously represented a client:
whose interests are materially adverse to that person; and about whom the lawyer had acquired confidential information thats material to the matter. |
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1.9: Key question
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Whether the confidential info obtained in the first representation would materially advance the new client's position in the subsequent matter?
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1.9: breakdown:
substantially related v. vulnerability of confidential info. which is key? Analytica case |
substantial relationship: by law or by fact?
the relationship will tell you about the vulnerability of confidential information and vice versa. Analytica: Posner: confidential information (substance) is more important than substantial relation (form). The confidential information will tell you where the substantial relation is! |
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1.9 breakdown:
substantially related v. vulnerability of confidential info. which is key? T.C. Theatere Corp v. Analytica |
T.C. Theater: 2 representations are not really substantially related so law firm might be able to hold on to the second representation.
Analytica: confidential information is enough to make the company a client in former representation, thus successive conflict. **argue both on exam |
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1.9: loyalty
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a lawyer cannot turn around and benefit from his own prior malpractice.
i.e. creates leases from Landlord, and now rep Tenant who wants to attack lease and argue its bad. Just smells: court must say appearance of impropriety |
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1.9: result if there is a successive conflict
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presumptive conclusion: dont have to show that anyone is misusing info, just there is conflict.
imputation: under 1.9, the whole firm is effected Screening: 2. BUT if former client was represented by another law firm & a L from that firm moved over, THEN there is rebuttable presumption that L coming into firm has confidential information & it will spread. -L can testify that they never worked on this, know nothing -Firm can screen out this L to ensure L doesn’t infect rest of firm -If worked for client & has confidential info [get to later] Governmental lawyers: 1.11 ABA accepted screening to allow firm to be adverse to gov; if not, would be bad for gov workers going to private prospective client: 1.18: can screen off attorney that talked to them |
