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LLM Law Outlines Professional Responsibility Outlines

Conflict Of Interest Outline

Updated Conflict Of Interest Notes

Professional Responsibility Outlines

Professional Responsibility

Approximately 95 pages

Professional Responsibility with Gillers Autumn 2018
Based on the textbook: Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics (11th Ed. 2018)...

The following is a more accessible plain text extract of the PDF sample above, taken from our Professional Responsibility Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

03. Conflict of Interest

163-185; 185-203; 214-226

226-237; 249-272

The Basic Architecture Of Lawyer-Client Conflicts

  1. Lawyers have duties to clients of diligence, confidentiality, loyalty and related fiduciary duties (e.g., honesty).

  2. The client is usually not able to monitor the behavior of a lawyer.

  3. Conflict rules aim to reduce the risk that the lawyer will violate the duties in #1.

  4. They do this by identifying situations where the lawyer’s duties to another client, to a former client, or to a third person, or the lawyer’s own interest will detract to an unacceptable degree from the lawyer’s ability to satisfy the duties in #1.

  5. Which can lead to (a) client suspicion and (b) misconduct.

  • Conflicts are –

    • Fact specific (granular): You must get into the detail

    • Literary: You will tell story that has the structure : “On the one hand…., but on the other hand….”

    • Psychological:

      • You will be assessing the lawyer’s temptation, conscious or otherwise

      • You will be assessing the client’s objectively reasonable suspicion of counsel’s loyalty

  • Actual misconduct – succumbing to a conflict is an

    • independent violation of other rules

  • Goals of the conflict rules:

    • Encourage client trust (allay suspicion)

    • Reduce the likelihood of temptation -- lawyer disloyalty or abuse of confidential information, even unintentionally

  • How do you measure temptation?

  • How do you measure reasonable suspicion?

  • Countervailing considerations:

    • Facilitate choice of counsel

    • Facilitate specialization and career development

    • Strategic abuse

  • Perez v. Kirk & Carrigan: Conflict between duty of confidentiality to Perez and interest of company in showing cooperation

  • “In A Box”: Conflict between duty to inform Jennie Marsh that Endicott is facing possible indictment and duty to protect the confidential information of Font &Blue

What Are the Sanctions?

  • Discipline (but usually not)

  • Liability for malpractice or breach of fiduciary duty

  • Fee disgorgement or forfeiture

  • Disqualification from a matter

  • Loss of a client

  • Bad publicity

Concurrent Conflicts of Interest P.163-185

  • Rule 1.7(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

    • (1) the representation of one client will be directly adverse to another client; or

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

  • Rule 1.7(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

    • (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; [a subjective/ objective test]

    • (2) the representation is not prohibited by law;

    • (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

    • (4) each affected client gives informed consent, confirmed in writing.

  • [7] loyalty and independent judgment are essential elements in the lawyer’s relationship to a client

    • Current client conflict exists if “significant risk that the representation of one or more client will be materially limited by the lawyer’s responsibilities to other client, a former client or third person or by a personal interest of the lawyer

    • Lawyers wishing to avoid a conflict must make predictions

  • Restatement s.121 “a conflict of interest is involved if there is a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person”

    • Risk to representation – need not be actual

    • Significant risk (and not only lawyers who actually betrayed a client/0

      • It reduces the risk of misbehavior rather than try to discover and prove the misbehavior later

      • encourage client trust and honesty

  • Concurrent conflict (conflicting interests a lawyer must avoid during the representation of a client)

    • C.f. successive conflict (chapter 6)

  • Conflict of interest can result in discipline, disqualification from a representation, attendant embarrassment and cost; delay of client’s cause, negative publicity, fee forfeiture, and civil liability (rarely, crime – US v Gellene perjury for failing to reveal firm’s representation of clients with conflicting interest)

  • Most conflict rules have no mens rea requirement – absolute liability

    • Exception: imputed conflicts - conflict that arises only because the conflict of a colleague is imputed to other lawyers in a law office (i.e. lawyer A has a conflict only because her office colleague lawyer B has a conflict)

  • Rule 1.10(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9…[with certain exceptions]

    • forbids a lawyer knowingly to accept certain work that a conflicted colleague would have to decline

    • firm = an organisation, office – all seen as one lawyer

Introduction to Conflicts rules

  1. Current client conflicts

    • Lawyer’s loyalties divided between 2 or more current clients, e.g. lawyer for co-defendants in a civil/ criminal case may find that on wants blame the other

    • Personal interest – e.g. lawyer’ spouse has large stock investment in the corporation that lawyer’s client wants to sue for a big sum

    • 1.7[1] uses the word ‘loyalty’ lawyer’s ability to be loyal and danger to client confidences

    • 1.7(a) definition of concurrent lawyer-client conflict

    • Rule 1.8 specific concurrent conflict situations – see later. Routinely reoccur

  2. Former client conflicts

    • Successive conflicts

    • E.g. lawyer represented a former client in...

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