Podcast
Questions and Answers
An attorney serves as the lawyer for a corporation and is a member of its board of directors. Which of the following is true regarding this situation?
An attorney serves as the lawyer for a corporation and is a member of its board of directors. Which of the following is true regarding this situation?
- The attorney must limit his legal representation of the corporation to transactional and regulatory matters, and cannot represent the corporation in litigation against adverse parties, as there is always a material risk that the dual role will compromise the lawyer's independence of professional judgment
- The attorney must have the final word on decisions of the board when he is present as a director, because Attorney bears responsibility for the decisions in the form of potential legal malpractice liability, which does not apply to the other directors who are not lawyers.
- The attorney must advise the other board members that in some circumstances, matters they discuss at board meetings while the attorney is there as a fellow director would not be protected by the attorney-client privilege in later litigation; and that conflict of interest considerations might require the attorney’s recusal as a director, or might require the attorney to decline representation of the corporation in a matter. (correct)
- The attorney is subject to discipline, because the responsibilities of the two roles may conflict, as when Attorney must advise the corporation in matters involving actions of the directors, and there is always a material risk that the dual role will compromise the lawyer's independence of professional judgment (correct)
A municipal election for a seat on the city council was remarkably close one year, resulting in a run-off election that was ever closer. Both candidates claimed victory, and each accused the opposing candidate of voter fraud and violations of various election rules. There is potential for litigation if the two cannot agree as to a winner in the election, with one or the other conceding. A certain attorney is a prominent lawyer in the community and has previously represented each candidate in various legal matters. Both candidates would like to hire the attorney to represent them in negotiating a resolution to the election. Each candidate fully understands their adverse interests and the potential conflicts of interest for the attorney, but each is willing to provide written informed consent to have the attorney represent them both in facilitating the negotiations. May the attorney represent both candidates in this negotiation?
A municipal election for a seat on the city council was remarkably close one year, resulting in a run-off election that was ever closer. Both candidates claimed victory, and each accused the opposing candidate of voter fraud and violations of various election rules. There is potential for litigation if the two cannot agree as to a winner in the election, with one or the other conceding. A certain attorney is a prominent lawyer in the community and has previously represented each candidate in various legal matters. Both candidates would like to hire the attorney to represent them in negotiating a resolution to the election. Each candidate fully understands their adverse interests and the potential conflicts of interest for the attorney, but each is willing to provide written informed consent to have the attorney represent them both in facilitating the negotiations. May the attorney represent both candidates in this negotiation?
- Yes, common representation is permissible where the clients’ interests align overall, even though there is some difference in interest among them, so the attorney may pursue an agreement on an amicable and mutually advantageous basis.
- No, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, even in a negotiation. (correct)
- Yes, because conflicts of interest rules do not apply outside the litigation arena; the parties here are not litigating, and no litigation is pending, but instead are merely hiring the attorney to facilitate negotiations of an issue where the two sides are not far apart.
- No, because the fact that the attorney has represented each of the parties in the past means that he would possess confidential information that would make mutual representation nonconsentable in this case.
Two sisters are co-tenants of a house that they inherited from their father. They want to sell the house and hire an attorney to handle the real estate transaction. This attorney explains the potential for conflicts of interest in detail, and each sister readily agrees to provide written informed consent in the form of a waiver of future conflicts of interest. After a prolonged period, they finally find a buyer who is interested in the house, but the buyer wants to impose several onerous conditions on the purchase and engages in unreasonably protracted negotiations over the purchase price. The sisters themselves cannot agree on whether to accept any of the buyer’s proposals, further dooming the negotiations. Eventually, one sister becomes frustrated with the attorney over the prolonged, hitherto unsuccessful negotiations, and fires the attorney. The other sister wants the attorney to continue the representation. Regarding the sister who seeks to discharge the attorney, may she do so?
Two sisters are co-tenants of a house that they inherited from their father. They want to sell the house and hire an attorney to handle the real estate transaction. This attorney explains the potential for conflicts of interest in detail, and each sister readily agrees to provide written informed consent in the form of a waiver of future conflicts of interest. After a prolonged period, they finally find a buyer who is interested in the house, but the buyer wants to impose several onerous conditions on the purchase and engages in unreasonably protracted negotiations over the purchase price. The sisters themselves cannot agree on whether to accept any of the buyer’s proposals, further dooming the negotiations. Eventually, one sister becomes frustrated with the attorney over the prolonged, hitherto unsuccessful negotiations, and fires the attorney. The other sister wants the attorney to continue the representation. Regarding the sister who seeks to discharge the attorney, may she do so?
- Yes, but only if discharging the lawyer will not be prejudicial to the interests of the buyer, who has already invested a lot of time and energy in the negotiations to purchase the property.
- No, because by agreeing to common representation with her sister, she implicitly agreed that discharging the attorney would require assent of both sisters, as they are both clients.
- Yes, each client in the common representation has the right to discharge the lawyer as stated in Rules of Professional Conduct and the accompanying Comments. (correct)
- No, because she signed a waiver of future conflicts of interest, which is binding and safeguards the attorney against premature discharge.
Three co-owners of a successful startup business hire a certain attorney to help with working out the financial reorganization of their enterprise. The attorney seeks to resolve potentially adverse interests by developing the parties' mutual interests. In assenting to represent all the parties as clients simultaneously, the attorney agrees to adjust the relationship between clients on an amicable and mutually advantageous basis. The clients each provide written consent to the potential conflicts of interest. Is it proper for the attorney to represent three clients with potentially adverse interests in a negotiated transaction?
Three co-owners of a successful startup business hire a certain attorney to help with working out the financial reorganization of their enterprise. The attorney seeks to resolve potentially adverse interests by developing the parties' mutual interests. In assenting to represent all the parties as clients simultaneously, the attorney agrees to adjust the relationship between clients on an amicable and mutually advantageous basis. The clients each provide written consent to the potential conflicts of interest. Is it proper for the attorney to represent three clients with potentially adverse interests in a negotiated transaction?
An experienced attorney practiced at a small firm in a rural area. The attorney regularly represented the county school district in employment discrimination matters. One day, a group of citizens asked the attorney to represent them before the county planning commission to oppose the widening of a county road. The school district had separate budgetary funding, and it had an elected governing Board with its own authority to hire legal counsel. In contrast, the members of the county planning commission were appointees by the County Executive, and lawyers at the County Solicitor’s office handled the legal work for the commission, though the commission and the County Solicitor’s office received their funding from separate line items in the county budget. Would it be proper, under these facts, for the attorney to agree to represent the citizens against the Commission, without informing them of her existing relationship with the School District, and without also securing the Board's consent?
An experienced attorney practiced at a small firm in a rural area. The attorney regularly represented the county school district in employment discrimination matters. One day, a group of citizens asked the attorney to represent them before the county planning commission to oppose the widening of a county road. The school district had separate budgetary funding, and it had an elected governing Board with its own authority to hire legal counsel. In contrast, the members of the county planning commission were appointees by the County Executive, and lawyers at the County Solicitor’s office handled the legal work for the commission, though the commission and the County Solicitor’s office received their funding from separate line items in the county budget. Would it be proper, under these facts, for the attorney to agree to represent the citizens against the Commission, without informing them of her existing relationship with the School District, and without also securing the Board's consent?
Conglomerate Corporation owns a little more than half the stock of Giant Company. Conglomerate’s stock, in turn, is public, available on the public stock exchange, as is the remainder of the stock in Giant Company. The president of Conglomerate Corporation has asked Attorney Stevenson to represent Giant Company in a deal by which Giant would make a proposed transfer of certain real property to Conglomerate Corporation. The property in question is unusual because it contains an underground particle collider used for scientific research, but also valuable farmland on the surface, as well as some valuable mineral rights in another part of the parcel. These factors make the property value difficult to assess by reference to the general real-estate market, which means it is difficult for anyone to determine the fairness of the transfer price in the proposed deal. Would it be proper for Attorney Stevenson to facilitate this property transfer at the behest of the president of Conglomerate, if Attorney Stevenson would be representing Giant as the client in this specific matter?
Conglomerate Corporation owns a little more than half the stock of Giant Company. Conglomerate’s stock, in turn, is public, available on the public stock exchange, as is the remainder of the stock in Giant Company. The president of Conglomerate Corporation has asked Attorney Stevenson to represent Giant Company in a deal by which Giant would make a proposed transfer of certain real property to Conglomerate Corporation. The property in question is unusual because it contains an underground particle collider used for scientific research, but also valuable farmland on the surface, as well as some valuable mineral rights in another part of the parcel. These factors make the property value difficult to assess by reference to the general real-estate market, which means it is difficult for anyone to determine the fairness of the transfer price in the proposed deal. Would it be proper for Attorney Stevenson to facilitate this property transfer at the behest of the president of Conglomerate, if Attorney Stevenson would be representing Giant as the client in this specific matter?
Mr. Burns, the chief executive officer of Conglomerate Corporation, now faces criminal charges of discussing prices with the president of a competing firm. If found guilty, both Mr. Burns and Conglomerate Corporation will be subject to civil and criminal penalties under state and federal antitrust laws. An attorney has been representing Conglomerate Corporation. She has conducted a thorough investigation of the matter, and she has personally concluded that no such pricing discussions occurred. Both Conglomerate Corporation and Mr. Burns plan to defend on that ground. Mr. Burns has asked the attorney to represent him, as well as Conglomerate Corporation, in the proceedings. The legal and factual defenses of Conglomerate Corporation and Mr. Burns seem completely consistent at the outset of the matter. Would the attorney need to obtain informed consent to a conflict of interest from both Mr. Burns and a separate corporate officer at Conglomerate Corporation before proceeding with this dual representation?
Mr. Burns, the chief executive officer of Conglomerate Corporation, now faces criminal charges of discussing prices with the president of a competing firm. If found guilty, both Mr. Burns and Conglomerate Corporation will be subject to civil and criminal penalties under state and federal antitrust laws. An attorney has been representing Conglomerate Corporation. She has conducted a thorough investigation of the matter, and she has personally concluded that no such pricing discussions occurred. Both Conglomerate Corporation and Mr. Burns plan to defend on that ground. Mr. Burns has asked the attorney to represent him, as well as Conglomerate Corporation, in the proceedings. The legal and factual defenses of Conglomerate Corporation and Mr. Burns seem completely consistent at the outset of the matter. Would the attorney need to obtain informed consent to a conflict of interest from both Mr. Burns and a separate corporate officer at Conglomerate Corporation before proceeding with this dual representation?
An attorney meets with a potential client regarding representation in defense of a nuisance suit. Upon review of the original petition, the attorney realizes that she knows plaintiff’s lawyer. The attorney and plaintiff’s lawyer worked together as associates at the same law firm directly out of law school twenty years ago but have not practiced law together since the attorney started her own firm eleven years ago. The two lawyers do not regularly socialize together or otherwise encounter one another aside from occasionally crossing paths at the courthouse. From time to time, when they coincidentally come across one another at the courthouse, they have lunch together at a nearby café. The attorney discloses the nature of her relationship with the plaintiff’s lawyer. The potential client states that she still wants to retain the attorney, but the client does not provide written informed consent. Will the attorney be subject to discipline if she does not decline representation in this case?
An attorney meets with a potential client regarding representation in defense of a nuisance suit. Upon review of the original petition, the attorney realizes that she knows plaintiff’s lawyer. The attorney and plaintiff’s lawyer worked together as associates at the same law firm directly out of law school twenty years ago but have not practiced law together since the attorney started her own firm eleven years ago. The two lawyers do not regularly socialize together or otherwise encounter one another aside from occasionally crossing paths at the courthouse. From time to time, when they coincidentally come across one another at the courthouse, they have lunch together at a nearby café. The attorney discloses the nature of her relationship with the plaintiff’s lawyer. The potential client states that she still wants to retain the attorney, but the client does not provide written informed consent. Will the attorney be subject to discipline if she does not decline representation in this case?
An attorney sued Giant Company on behalf of a client in a personal injury matter. During the protracted litigation that ensued, Conglomerate bought Giant Company. The attorney was already representing Conglomerate in a regulatory compliance matter before a federal administrative agency. Assuming this development was unforeseeable at the outset of representing the client against Giant Company, will the attorney have the option to withdraw from representing one of the clients to avoid the conflict?
An attorney sued Giant Company on behalf of a client in a personal injury matter. During the protracted litigation that ensued, Conglomerate bought Giant Company. The attorney was already representing Conglomerate in a regulatory compliance matter before a federal administrative agency. Assuming this development was unforeseeable at the outset of representing the client against Giant Company, will the attorney have the option to withdraw from representing one of the clients to avoid the conflict?
Big Firm represents hundreds of corporate clients out of a dozen offices in different states. The firm has no formal procedures in place to check for conflicts at the outset of representation for new clients, but the managing partner of the firm has an incredible memory and has never failed to spot a potential conflict of interest in the past. An attorney agrees to represent a new corporate client that owns many subsidiaries, and checks with the managing partner, who assured Attorney there are no potential conflicts. After the new corporate client had disclosed a substantial amount of confidential information, it emerged that some of its subsidiaries were directly adverse to other clients of Big Firm. The attorney was completely unaware of the potential conflicts at the time he agreed to the representation, despite asking the corporate client a few questions about the opposing parties in pending litigation it might have. Will the attorney be subject to discipline for not declining representation in this case?
Big Firm represents hundreds of corporate clients out of a dozen offices in different states. The firm has no formal procedures in place to check for conflicts at the outset of representation for new clients, but the managing partner of the firm has an incredible memory and has never failed to spot a potential conflict of interest in the past. An attorney agrees to represent a new corporate client that owns many subsidiaries, and checks with the managing partner, who assured Attorney there are no potential conflicts. After the new corporate client had disclosed a substantial amount of confidential information, it emerged that some of its subsidiaries were directly adverse to other clients of Big Firm. The attorney was completely unaware of the potential conflicts at the time he agreed to the representation, despite asking the corporate client a few questions about the opposing parties in pending litigation it might have. Will the attorney be subject to discipline for not declining representation in this case?
A husband and wife decide to divorce and reach an agreement to share the same lawyer in hopes of saving money. They hire an attorney to represent each of them in Family Court for the dissolution of marriage. The attorney explains that there is an obvious conflict of interest here, but the husband and wife insist, and sign informed consent forms waiving the conflict and their rights to assert any future claims related to the conflict. The husband and wife have no children, and they have always kept separate bank accounts. Each purchased their own car from the money in their own bank account and each car’s title is in only one name. They live in an apartment whose lease is expiring soon, so there is no real property to divide. Would it be proper for the attorney to represent both in the divorce?
A husband and wife decide to divorce and reach an agreement to share the same lawyer in hopes of saving money. They hire an attorney to represent each of them in Family Court for the dissolution of marriage. The attorney explains that there is an obvious conflict of interest here, but the husband and wife insist, and sign informed consent forms waiving the conflict and their rights to assert any future claims related to the conflict. The husband and wife have no children, and they have always kept separate bank accounts. Each purchased their own car from the money in their own bank account and each car’s title is in only one name. They live in an apartment whose lease is expiring soon, so there is no real property to divide. Would it be proper for the attorney to represent both in the divorce?
Three individuals plan to form a joint venture and ask an attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. They have already agreed that everyone will contribute exactly one-third of the startup funds for the venture, each will own one-third of the shares, each will have equal control over the Board, and each agrees to indemnify the others for a one-third share of any personal liability related to the joint venture. They have also agreed that they will have no non-compete agreements. The joint venture will hire managers, marketers, and other employees to operate the business. The three individuals are co-owners of a patent that could potentially be very lucrative when they bring it to market, and they have known each other and worked together for a long time. The attorney cannot find any current areas of conflict between them, though he knows that it is technically possible that some unforeseen conflict could arise in the future. The shared objectives and goals of the group lead the attorney to conclude that no conflicts of interest are present and that it would be counterproductive to try to convince each member of the group to sign an informed consent form acknowledging that conflicts of interest exist and that the attorney may still represent everyone at once. May the attorney trust his professional judgment and proceed without obtaining separate consent forms from each person in the joint venture?
Three individuals plan to form a joint venture and ask an attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. They have already agreed that everyone will contribute exactly one-third of the startup funds for the venture, each will own one-third of the shares, each will have equal control over the Board, and each agrees to indemnify the others for a one-third share of any personal liability related to the joint venture. They have also agreed that they will have no non-compete agreements. The joint venture will hire managers, marketers, and other employees to operate the business. The three individuals are co-owners of a patent that could potentially be very lucrative when they bring it to market, and they have known each other and worked together for a long time. The attorney cannot find any current areas of conflict between them, though he knows that it is technically possible that some unforeseen conflict could arise in the future. The shared objectives and goals of the group lead the attorney to conclude that no conflicts of interest are present and that it would be counterproductive to try to convince each member of the group to sign an informed consent form acknowledging that conflicts of interest exist and that the attorney may still represent everyone at once. May the attorney trust his professional judgment and proceed without obtaining separate consent forms from each person in the joint venture?
A client owns a partnership share of a closely held business, and the other partners vote to impose an involuntary buy-out of the client to remove him from the firm. The client is clearly upset about this, but the partnership agreement clearly permits involuntary buyouts by a majority vote of the other shareholders. Then the client hires an attorney to represent him in the buyout transaction, to review the necessary documents and provide legal counsel about it. No litigation is under consideration yet. The attorney’s sister is also a lawyer in that city, at another firm, and the sister represents the other shareholders in the partnership. Nevertheless, the attorney did not disclose that her sister represented the other partners, as she and her sister are not close and rarely speak, and the matter is unlikely to turn into litigation. Is the attorney, or the other lawyers in her firm, subject to disqualification in this matter?
A client owns a partnership share of a closely held business, and the other partners vote to impose an involuntary buy-out of the client to remove him from the firm. The client is clearly upset about this, but the partnership agreement clearly permits involuntary buyouts by a majority vote of the other shareholders. Then the client hires an attorney to represent him in the buyout transaction, to review the necessary documents and provide legal counsel about it. No litigation is under consideration yet. The attorney’s sister is also a lawyer in that city, at another firm, and the sister represents the other shareholders in the partnership. Nevertheless, the attorney did not disclose that her sister represented the other partners, as she and her sister are not close and rarely speak, and the matter is unlikely to turn into litigation. Is the attorney, or the other lawyers in her firm, subject to disqualification in this matter?
An attorney has applied to make a lateral move from her firm to Big Firm, and she has already gone through the first two of three rounds of interviews for the position. Then the attorney agrees to represent a client in filing a breach of contract claim against Construction Company over a commercial development project. Big Firm represents Construction Company, and the firm’s lawyers drafted the contract that forms the basis of the client’s complaint. The client claims that Construction Company breached a certain provision of the contract that is ambiguous; Construction Company is confident that its conduct falls within the contractual language of that provision. Is it proper for the attorney to undertake representation of the client in this case?
An attorney has applied to make a lateral move from her firm to Big Firm, and she has already gone through the first two of three rounds of interviews for the position. Then the attorney agrees to represent a client in filing a breach of contract claim against Construction Company over a commercial development project. Big Firm represents Construction Company, and the firm’s lawyers drafted the contract that forms the basis of the client’s complaint. The client claims that Construction Company breached a certain provision of the contract that is ambiguous; Construction Company is confident that its conduct falls within the contractual language of that provision. Is it proper for the attorney to undertake representation of the client in this case?
A group of several individuals seeking to form a joint venture asked an attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. Two of the individuals were to provide most of the initial funds for the startup; two others were experienced inventors who were to provide new product designs; two others had expertise in business management and were to serve as managers; and two had proven records in high-end sales and marketing. They have not yet resolved the allocation of ownership shares, bonuses for managers, whether to have anti-compete agreements for each participant, whether patents will belong solely to the joint venture or partly to the inventors themselves, and whether sales reps will work on salary or commissions. Everyone says that she wants whatever terms would be best for the joint venture overall, rather than what would be most beneficial for each one individually. The shared objectives and goals of the group lead the attorney to conclude that no conflicts of interest are present and that it would be counterproductive to try to convince each member of the group to sign an informed consent form acknowledging that conflicts of interest exist, and that the attorney may still represent everyone at once. May the attorney trust his professional judgment and proceed without obtaining separate consent forms from each person in the joint venture?
A group of several individuals seeking to form a joint venture asked an attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. Two of the individuals were to provide most of the initial funds for the startup; two others were experienced inventors who were to provide new product designs; two others had expertise in business management and were to serve as managers; and two had proven records in high-end sales and marketing. They have not yet resolved the allocation of ownership shares, bonuses for managers, whether to have anti-compete agreements for each participant, whether patents will belong solely to the joint venture or partly to the inventors themselves, and whether sales reps will work on salary or commissions. Everyone says that she wants whatever terms would be best for the joint venture overall, rather than what would be most beneficial for each one individually. The shared objectives and goals of the group lead the attorney to conclude that no conflicts of interest are present and that it would be counterproductive to try to convince each member of the group to sign an informed consent form acknowledging that conflicts of interest exist, and that the attorney may still represent everyone at once. May the attorney trust his professional judgment and proceed without obtaining separate consent forms from each person in the joint venture?
Flashcards
Can a lawyer represent two opposing parties in a negotiation?
Can a lawyer represent two opposing parties in a negotiation?
A lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, even in a negotiation.
Can a lawyer provide financial assistance to an indigent client?
Can a lawyer provide financial assistance to an indigent client?
Generally, a lawyer may not provide financial assistance to a client, even if the client is indigent.
Can a lawyer accept an ownership interest in a client's property as a fee?
Can a lawyer accept an ownership interest in a client's property as a fee?
A lawyer may not accept an ownership interest in a client's property as part of the fee for undertaking a representation in a litigation matter.
When does a lawyer need informed consent to represent a client and a partly-owned organization?
When does a lawyer need informed consent to represent a client and a partly-owned organization?
A lawyer must obtain the informed consent of both clients before representing both individuals and an organization that is partly owned by one of the individuals, particularly if there is a significant risk of conflicting positions in a future proceeding.
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Can a lawyer accept an ownership interest in a client's property as a fee for representation?
Can a lawyer accept an ownership interest in a client's property as a fee for representation?
A lawyer may not accept an ownership interest in a client's property as part of the fee for undertaking a representation in the matter.
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What happens when a lawyer considering a job with opposing council?
What happens when a lawyer considering a job with opposing council?
When a lawyer has discussions concerning potential employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the lawyer's representation of the client.
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What information must a lawyer provide to clients in common representation?
What information must a lawyer provide to clients in common representation?
When undertaking representation of multiple clients in a single matter, the information must include the implications of the common representation, including potential effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved.
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When does a lawyer need informed consent to represent multiple clients?
When does a lawyer need informed consent to represent multiple clients?
A lawyer generally must obtain informed consent from both clients to commonly represent them when there is a significant risk that the lawyer's representation of one client will be materially limited by the lawyer's representation of another client.
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Can a lawyer provide financial assistance to an indigent client and advertise it?
Can a lawyer provide financial assistance to an indigent client and advertise it?
A lawyer may not provide financial assistance, even if the lawyer is representing the client pro bono and the lawyer does not seek or receive reimbursement from the client, if the lawyer publicizes or advertises a willingness to provide such assistance.
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Why might a lawyer's job interview create a conflict of interest?
Why might a lawyer's job interview create a conflict of interest?
When a lawyer has discussions concerning potential employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the lawyer's representation of the client.
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Can a lawyer offer financial assistance to a client before the representation begins?
Can a lawyer offer financial assistance to a client before the representation begins?
A lawyer may not provide financial assistance, even if the lawyer is representing the client pro bono and the lawyer does not seek or receive reimbursement from the client, if the lawyer has promised, assured or implied the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention.
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Does representing a corporation mean you represent its subsidiaries?
Does representing a corporation mean you represent its subsidiaries?
A lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary, and the lawyer for an organization may provide representation adverse to an affiliate in an unrelated matter.
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Can a lawyer represent a defendant in a class action if they represent a plaintiff in the class?
Can a lawyer represent a defendant in a class action if they represent a plaintiff in the class?
A lawyer may not represent an opponent in a class action lawsuit when the lawyer is representing an unnamed member of the plaintiff class in an unrelated matter.
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When can a lawyer's representation of an unnamed plaintiff create a conflict?
When can a lawyer's representation of an unnamed plaintiff create a conflict?
A lawyer may not represent an opponent in a class action lawsuit when the lawyer is representing an unnamed member of the plaintiff class in an unrelated matter.
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What happens when a conflict arises after representation begins?
What happens when a conflict arises after representation begins?
Even though the lawyer may be able to provide competent and diligent representation for both clients, a lawyer must ordinarily withdraw from the representation of both clients when a conflict of interest arises after representation is underway, unless the lawyer obtained the informed consent of each client at the outset.
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What about attorney-client privilege in common representation?
What about attorney-client privilege in common representation?
The attorney-client privilege does not attach between jointly-represented clients. The prevailing rule is that when litigation arises between the clients, the privilege will not protect communications between them and the lawyer.
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When can a lawyer represent both sides of a negotiation?
When can a lawyer represent both sides of a negotiation?
A lawyer generally must obtain informed consent from both clients to commonly represent them when there is a significant risk that the lawyer's representation of one client will be materially limited by the lawyer's representation of another client.
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When can a lawyer represent multiple clients with differing interests?
When can a lawyer represent multiple clients with differing interests?
A lawyer may represent multiple clients whose interests align, even if there is some difference in interest among them, so long as the lawyer reasonably believes that the lawyer can represent each client effectively.
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Can a lawyer representing a client in a real estate transaction also represent an opponent in a class action lawsuit?
Can a lawyer representing a client in a real estate transaction also represent an opponent in a class action lawsuit?
A lawyer generally must obtain informed consent from both clients to commonly represent them when there is a significant risk that the lawyer's representation of one client will be materially limited by the lawyer's representation of another client.
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Can a lawyer accept an ownership interest in a client's property as a fee?
Can a lawyer accept an ownership interest in a client's property as a fee?
A lawyer may not accept an ownership interest in a client's property as part of the fee for undertaking a representation in the matter.
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Can a lawyer represent both a union and its management?
Can a lawyer represent both a union and its management?
A lawyer may represent multiple clients whose interests align, even if there is some difference in interest among them, so long as the lawyer reasonably believes that the lawyer can represent each client effectively.
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Can an attorney include a waiver of future conflicts in a contract?
Can an attorney include a waiver of future conflicts in a contract?
An attorney may include waiver clauses for specific future conflicts in their contracts, if the clients are aware of the waiver, and if the contract delineates the types of future representations that may arise.
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Can a lawyer offer financial assistance to a client before the representation begins?
Can a lawyer offer financial assistance to a client before the representation begins?
A lawyer may not provide financial assistance, even if the lawyer is representing the client pro bono and the lawyer does not seek or receive reimbursement from the client, if the lawyer has promised, assured or implied the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention.
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Can a lawyer interview for a job with an opponent's firm?
Can a lawyer interview for a job with an opponent's firm?
When a lawyer has discussions concerning potential employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the lawyer's representation of the client.
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When does a lawyer need informed consent to represent a client and a partly-owned organization?
When does a lawyer need informed consent to represent a client and a partly-owned organization?
A lawyer must obtain informed consent from both clients before representing both individuals and an organization that is partly owned by one of the individuals, particularly if there is a significant risk of conflicting positions in a future proceeding.
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What happens when a conflict of interest arises after representation begins?
What happens when a conflict of interest arises after representation begins?
Even though the lawyer may be able to provide competent and diligent representation for both clients, a lawyer must ordinarily withdraw from the representation of both clients when a conflict of interest arises after representation is underway, unless the lawyer obtained the informed consent of each client at the outset.
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Can a lawyer seek reimbursement for financial assistance given to an indigent client?
Can a lawyer seek reimbursement for financial assistance given to an indigent client?
If a lawyer representing an indigent client gives the client modest contributions for food and similar basic necessities of life, the lawyer may not seek or accept reimbursement from a relative of the client or anyone affiliated with the client.
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Rule 1.7: Conflict of Interest – Current Clients
- Dual Roles: Representing a corporation and being a board member creates a potential conflict. The attorney's judgment may be compromised, especially in matters involving director actions. The attorney must disclose potential conflicts and may need to choose between roles.
- Negotiations: Representing multiple parties in negotations, even amicable ones, is permissible only if all clients' interests align. If interests are fundamentally antagonistic, it is not permissible. Prior representation of parties can pose an ethical barrier.
- Client Discharge: A client has the right to fire an attorney, but the discharged attorney may need to ensure the other clients are not harmed or prejudiced. Consent waivers for future conflicts might not apply to the situation.
- Common Representation in Negotiations: Common representation in negotiations is permissible, even with some conflicting interests, if efforts are to reach mutually advantageous outcomes.
- Firm Representation/Conflict Waiver: A lawyer in a firm representing a party in a dispute with another of the firm's clients must disclose this to the new client and obtain informed consent.
Rule 1.7: Conflict of Interest – Current Clients (Continued)
- Ownership Conflicts: Representing a company with conflicting, substantial interest in a transaction could present a conflict, even if the attorney has consent of both companies.
- Criminal Charges & Corporate Representation: Representing a client in a proceeding involving both the organization and an individual involved may create a conflict and require informed consent from relevant parties.
- Close Relationships w/ Opposing Counsel While the presence of a friendship does not necessarily cause a conflict, disclosure to the client and obtaining written consent from them is better practice in such cases.
- Conflict Arising After Initial Consent: If a conflict develops after representation starts, withdrawal from either or both representations may be necessary in many cases.
- Firm Procedures & Conflicts: Law firms need to have reasonable measures to detect conflicts on the front end. Failure to do so, and failing to realize a conflict after initially deciding to accept a case can be a violation.
Rule 1.7: Conflict of Interest – Current Clients (Continued)
- Divorce & Shared Representation: A lawyer may represent both parties in a divorce only after obtaining written informed consent if there are no assets in dispute. The lawyer needs to ensure he can represent both competently.
- Joint Venture Formation: A lawyer is allowed to undertake representation of several individuals involved in joint venture formation, but only as long as a reasonable belief exists that competency and diligence can be maintained.
Rule 1.8: Conflict of Interest Specific Rules
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Pro Bono Financial Assistance: A lawyer can financially assist a pro bono client for basic living expenses, but can't seek repayment from others.
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Pro Bono Assistance & Reimbursement A lawyer's giving financial assistance to a client in a pro bono case does not authorize taking reimbursement from a relative or associated person.
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Property as Fee: The acceptance of a client’s property as a fee requires written consent and notification of the client’s rights to seek counsel for the transaction.
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Borrowing from Client: A lawyer may borrow money from a client, but the terms must be fair and reasonable and the lawyer must disclose the nature of the transaction. Independent legal counsel should also be advised to the client.
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Complex Fee Arrangements: A lawyer handling complex fee arrangements, which might include fixed fees, hourly rates, and contingent fees, needs the client's clear written consent in the arrangement. Independent counsel regarding the transaction must also be considered.
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