LLM Law Outlines Professional Responsibility Outlines
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
Lawyers have duties to clients of diligence, confidentiality, loyalty and related fiduciary duties (e.g., honesty).
The client is usually not able to monitor the behavior of a lawyer.
Conflict rules aim to reduce the risk that the lawyer will violate the duties in #1.
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.
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
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
Former client conflicts
Successive conflicts
E.g. lawyer represented a former client in...
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Professional Responsibility with Gillers Autumn 2018
Based on the textbook: Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics (11th Ed. 2018)...
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