with conflicts the remedy is disconfrontation.
conflicts is part of the artisinal of strategic weapons because
they can increase the opponent's expenses and delays.
hypo. you are representing A and you represents B.
if you cross-examine B revealing privileged info about him,
you
concurrent/prospective conflicts - conflicts between two current
and ongoing obligations, such as between two clients or client and
prospective client, where analyzed from the POV of the current or
prospective it makes a difference.
or it can be a conflict around attorney's current/prospective obligs.
sometimes informed consent cannot cure concurrent conflicts.
successive conflicts: conflicts between obligs to current and former
clients. these conflicts can always be waived by informed consent.
imputed conflicts: conflicts between obligs to lawyer and client
and obligations of another lawyer who is affiliated with the first
lawyer. always waivable by informed consent, and there are even
screening procedures that can waive the obligation.
certain obligs on governmental lawyers, where the rules are different.
rule 1.7 - concurrent conflicts.
there are two general catergories1. directly adverse: you're expected to not represent someone who's
interests are directly adverse to your current client. this can also happen
outside of litigation (for example, negotiating a sale of property).
see comment 6: "simultaneous representation in unrelated matters
of clients whose interests are only economically adverse, such as
representation of competing economic enterprises in unrelated
litigation, does not ordinarily constitute a conflict of interest and thus
may not require consent of the respective clients." it's not enough just because you're representing competitor companies
to constitute a conflict of interest that requires waiver by informed
consent.
2. the materially limited concurrent conflict - rule 1.7(a)(2)
situations where there's a significant risk that a client will be
materially limited by the lawyer's responsibilities to another client
or another person or another interest. this sort of concurrent conflict
focuses on client harm implicating significant risk that the ability to
represent a client will be limited by some other obligation.
if you represent several people forming a business, you can't allow
the responsiblity to one of those clients to materially limit your
responsibilities to the other clients.
see comment 8, identifying material limitation: how much of a risk
is a significant risk? "the mere possibility of subsequent harm does
not itself require disclosure and consent. The critical questions are
the likelihood that a difference in interests will eventuate and, if it
does, whether it will materially interfere with the lawyer's independent
professional judgment in considering alternatives or foreclose courses
of action that reasonably should be pursued on behalf of the client."
rule 1.7(b)
1. must decide if
2. must decide if the rule keeps you from taking some other
representation
3. can't ever represent one client against the other in the same
matter
4. must get it in writing
all four elements must be satisfied, and failure of any of these
elements means the conflict is not resolved!
rule 1.7 b(1) - when you can competently represent both clients
see comment 15 - the test of reasonableness
if the test is not met, then the context of this conflict is not
reasonable.
considerations of reasonability:
1. are the conflicting representations un/related? if they're not
factually related then the conflict may be consentable.
2. does the problem involve joint representation of parties with
very diverse interests? if so, it may not be possible for them/you
to pursure those interests without harm to some party.
3. does the lawyer have a bond of loyalty to one of the clients?
if so, it seems less likely the lawyer can be impartial.
4. how sophisticated is the client? the greater the probability the
client will be able to give informed consent.
rule 1.7(b)(3) stops litigants at conflict in the same litigation.
you can't represent defendant and plaintiff, you can't represent
cross claimants, you can't represent 3d party interpleaders.
if it doesn't fall into 1.7(b)(1) to (3), then the concurrent
representation is representable.
you then must explain to your client the situation of going with/out
you as counsel.
see comment 18: *** and listen to recording***
to get informed consent, you may have to disclose confidential
info about the other client. if the other client refuses premission to
disclose, you can't and you can't get informed consent.
hypo.
client A wants to purchase a business from client B. both want
you as their attorney. you know that B is leaving that industry
to become an evangelical minister, and knows that A plans to
expand the business to include X-rated immoral materials. you
might have to disclose that information if you were both parties
representative, because it's material to the agreement. you will
have to share info obtained in confidence to client B. but if A
refuses to let you, you're screwed: you can't get B's consent
without disclosing about A.
see comment 19: "Under some circumstances it may be impossible
to make the disclosure necessary to obtain consent. For example,
when the lawyer represents different clients in related matters and
one of the clients refuses to consent to the disclosure necessary to
permit the other client to make an informed decision, the lawyer
cannot properly ask the latter to consent. In some cases the
alternative to common representation can be that each party may
have to obtain separate representation with the possibility of
incurring additional costs. These costs, along with the benefits of
securing separate representation, are factors that may be considered
by the affected client in determining whether common
representation is in the client's interests."
see comment 21: "A client who has given consent to a conflict may
revoke the consent and, like any other client, may terminate the
lawyer's representation at any time. Whether revoking consent to
the client's own representation precludes the lawyer from continuing
to represent other clients depends on the circumstances, including the
nature of the conflict, whether the client revoked consent because of
a material change in circumstances, the reasonable expectations of
the other client and whether material detriment to the other clients
or the lawyer would result."
other interesting insights on rule 1.7
rule 1.10
if you have a conflict of interest, you can't have any of your affiliates
involved either.
hypo.
you're a personal injury lawyer, and a driver and a cab company both
want you. one passenger just needs phys therapy. the other passenger
had serious injury: bone fracture and injury and 5 week hospitalization.
fee structure is contingent - 1/3 of recovery.
how to solve the problem:
1. turn to the rule, start with rule 1.7
- is rule 1.7 (a) implicated?
no there is no direct adversity because each party has an interest in
proving the cab driver/company were reckless
- is rule 1.7(a)(2) implicated?
is there a significant risk of material limitation? if so, then
you can't represent without going thru the 1.7(b) steps.
- what do you need to know to answer 1.7(b)(1) questions?
* extent of medical injuries
* insurance implications
- at this stage, is it consentable?
a reasonable lawyer at this point would probably conclude
that if the conflicts were disclosed, that it's ok
- however a conflict could arise that could make a conflict situation
- do you have to get informed consent?
yes, because there's a possibility that representation of one
client could materially limit the representation of the other
- since you need informed consent, what do you need to disclose
in order to get informed consent? comment 18
hypo.
you've concluded that you can represent both clients, and you sue
the cab company and are contacted to discuss settlement. the lawyer
says i'll settle the harder case for $350 if you take the lesser for $50.
have the circumstances changed?
- rule 1.4 duty of communication states you must communicate and
convey the offers to both parties.
- if the more seriously injured client puts pressure on the less injured,
have you now assisted opposing counsel?
- do you have to withdraw?
you have to consult with the clients at this point, and it may not be
absolutely vital to the clients that they get the most at this point.
if they do want the max and don't know one another and have
no sympathetic interests, then you haven't done as well as you can
for the lesser injured client.
small law firm, A who represents bob in an IP matter against mogul
at firm B. firm B is a client of firm A for various malpractice claims.
none of the malpractice overlaps the IP claim. at the time, they're
not using firm A. are there any problems, and how are they analyzed?
if there's a conflict, turn to rule 1.7(a)(1).
- even though/if firm A is currently working for firm A, the case is not
directly against firm B as a litigant, not in its representational capacity.
by virtue of representing firm B, A doesn't owe a duty to oppose its
other clients in a matter. just as firm B's lawyers representing mogul
is not adverse to its other clients.
- what about 1.7 (a)(2): is there a materially limited aspect to either
lawyer's work?
* law firm A's interest in keeping firm B's malpractice work
* firm B's interest in not antagonizing firm A
- what about 1.7(b)(1) "use the pissed off test"
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