Professional Responsibility - post-midterm

Lawyers as Agents

Act on the client’s behalf in matters in which they represent their clients.

Clients are generally bound by their lawyer’s actions

NOTE: Lawyers cannot bind clients usually to:

settlement decision or plea bargain in criminal case

waiver of a privilege or waive jury trial, testify in criminal case

 

Best to get express authorization from client at important stages in settlement process

get them on board

common for people to talk to others & think they could have gotten a better deal!

Overview of Conflicts of Interest

A conflict of interest may arise between:

the client and the lawyer’s personal interest

the interests of current clients or

the interests of current and prospective clients or

current and former clients, and

between current clients and third parties

Actual conflicts where interests are directly adverse (e.g., representing both parties in a lawsuit) are not waivable.

Potential conflicts are typically waivable with informed consent in writing by the client.

Types of Conflicts of Interest, generally

Concurrent: conflicts between current clients

Successive: between current or prospective and a former client

Imputed: Conflicts that a conflicted lawyer spreads to other members of their firm, which could be concurrent or successive.

Consequences of Violating Conflicts of Interest Rules

uCivil liability

uEthical violations

uLoss of fee

uDisqualification (and thus loss of fee)

uCourt sanctions

uEmbarrassment

Poor client relations

Conflicts of Interest Analysis - 4 Cs

Client?: Is there an attorney-client relationship? (none, past, prospective, current)

Conflict?: Is there a conflict? (potential, concurrent, successive)

Consentable?: Is the conflict consentable?

Consented?: If consentable, has consent been properly obtained?

Conflicts of Interest - 7 Step Analysis

Step 1:  Start with the duty of loyalty:

an attorney owes clients a duty of undivided loyalty and independent judgment

MR 1.7, Comment 1; CR 1.7,  Comment  1.

If there is any tension between this duty and the attorney’s representation of a current client, proceed to step 2.

Step 2:

Does the tension arise from the lawyer’s personal interests? 

If so, go to rule 1.7 (Cmt.10 (lawyer’s interest--e.g., referring client to a business in which the lawyer has a financial interest)), (Cmt. 11 lawyers related by blood or marriage)), and (Cmt. 12 sexual relationships)) to determine whether a conflict exists.

 If not, proceed to Step 3.

Step 3: Does the tension arise between the lawyer and a current client (usually financial)? 

If so, go to MR 1.8 and check which iteration applies (e.g., business transactions w/ client).

If not, proceed to Step 4.

Step 4: Does the tension arise between two current clients (potentially adverse or directly adverse)?

If yes, got to rule 1.7(a) and (b).

If not, proceed to step 5.

Step 5:  Does the tension arise between a current client and a former client?

If yes, go to rule 1.9. 

If not, proceed to Step 6.

Step 6:  Does the tension arise between a current client and a potential client?

If yes, go to Rule 1.18(c).

Step 7:  Last step for all instances where a conflict exists. 

Is the conflict waivable/consentable? 

If yes, was waiver properly obtained (informed consent in writing: ICCIW)? 

If waiver was proper, no discipline and no need to withdraw. 

If waiver was not properly obtained, subject to discipline for breach of duty of loyalty and mandatory withdrawal.

MR 1.7 Concurrent Conflict of Interest

A lawyer must not represent a client if doing so would be directly adverse to the interests of another current client or there is a significant risk that the representation of the client will be materially limited by the lawyer’s responsibilities to the current client, unless:

(i) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(ii) the representation is not prohibited by law;

(iii) 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 

(iv) each affected client gives informed consent, confirmed in writing. MR 1.7.

MR 1.9 Successive Client Conflicts

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

“Materially Limit” under MR 1.7 - Concurrent Client Conflicts

Although not a “direct adversity,” the lawyer’s other duties and responsibilities create a potential conflict that might undermine the lawyer’s ability to fully represent the client’s interests

-Loyalty to another client

-Loyalty to a former client

-Lawyer’s own financial interests

Lawyer’s relationship with a third-party or organization

Model Rule 1.7(b) Consentability of Conflicts

MR 1.7 permits most conflicts to be waived if the following conditions are meet:

◦The lawyer reasonably believes that she can provided “competent” and “diligent” service to affected clients;

◦Not prohibited by law;

◦Does not involve an “assertion of a claim by one client against another client in the same litigation or other proceeding in a tribunal”; and

Each affected client gives informed consent, confirmed in writing.

Conflicts and Lawyer’s Personal Interest

A lawyer must not represent a client if the representation of the client may be materially limited by the lawyer’s own interests, unless:

(i) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to the affected client;

(ii) the representation is not prohibited by law; and

(iii) the affected client gives informed consent, confirmed in writing. MRPC 1.7; CRPC 1.7(a)-(c).

NOTE: both subjective and objective standards apply in determining reasonable belief:

both the specific lawyer’s subjective belief and a disinterested lawyer’s reasonable belief are required in the analysis of whether the representation would be materially limited by the lawyer’s own interests.

Informed Consent & Confirmed in Writing for Waiver of Conflict, Requirements

“Informed Consent”:  this term means the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks and reasonably available alternatives to the proposed course of conduct.

“Confirmed in writing”: means informed consent given in writing by the person or a writing that the lawyer promptly transmits to the person confirming an oral informed consent.

Related Lawyers, conflicts

A lawyer related to another lawyer (e.g., parent, child, sibling, or spouse) may not represent a client in a matter in which the related lawyer is representing another party, unless each client gives informed consent. Disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. MR 1.7, cmt. 11.

CR 1.7(c)(2):  written disclosure required when “the lawyer knows or reasonably should know that another party’s lawyer is a spouse, parent, or sibling of the lawyer, lives with the lawyer.”

Sex with Clients (MR)

A lawyer is prohibited from engaging in sexual relations with a client, unless a consensual sexual relationship existed between the lawyer and client when the client-lawyer relationship commenced. MR 1.8(j).

The rule does not permit the client to waive the conflict through informed consent. The conflict is personal to the lawyer and is not imputed to others in the lawyer’s firm. MR 1.8(k).

If the client is an organization, the lawyer for the organization (whether inside counsel or outside counsel) is prohibited from having a sexual relationship with a constituent of the organization (e.g., employee of a corporation) who supervises, directs, or regularly consults with the lawyer with regard to the organization’s legal matters. MR1.8, cmt. 19.

Sex with Clients (CR)

CRPC 1.8.10

(a)  A lawyer shall not engage in sexual relations with a current client who is not the lawyer’s spouse or registered domestic partner, unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.

(b)  For purposes of this rule, “sexual relations” means sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification, or abuse.

(c)  If a person other than the client alleges a violation of this rule, no Notice of Disciplinary Charges may be filed by the State Bar against a lawyer under this rule until the State Bar has attempted to obtain the client’s statement regarding, and has considered, whether the client would be unduly burdened by further investigation or a charge.

NO PUBLISHED CA BAR OPINIONS on this: unclear if waivable through informed consent. 

Lawyer as a Witness, MR and CR

Lawyer generally disqualified from representing a client if the lawyer is likely to be a necessary witness in the action

Circumstances Under Which Lawyer May Testify (MR 3.7a)

A lawyer is not permitted to act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless:

i) The testimony relates to an uncontested issue;

ii) The testimony relates to the nature and value of legal services rendered in the case; or

iii) Disqualification of the lawyer would work substantial hardship on the client.

A lawyer is generally permitted to act as an advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a necessary witness.

CR

(a)  A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless:

(1)  the lawyer’s testimony relates to an uncontested issue or matter;

(2)  the lawyer’s testimony relates to the nature and value of legal services rendered in the case; or

(3)  the lawyer has obtained informed written consent* from the client. If the lawyer represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the lawyer is employed. DIFFERENT.

(b)  A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9.

Direct Adversity Conflicts of Interest

Under no circumstances may a lawyer represent opposing parties in the same lawsuit.

Absent informed consent in writing, a lawyer also may not act as an advocate in one matter against a person the lawyer represents in some other matter, even if the matters are wholly unrelated. MR1.7, cmt. 6.

Solely economic adversity is fine, so long as unrelated litigation.

Conflicts b/w Former and Current Clients

A lawyer who has previously represented a client in a matter must not subsequently represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client, unless the former client gives informed consent, confirmed in writing. MR 1.9(a).

N0TE: Cannot be waived if the lawyer could not have reasonably believed that she could provide competent/diligent representation to the new client

Common Triggers for Former/Current Client Conflicts

Will the lawyer:

Betray confidences of a former client to a current client?

Make adverse use of confidences that the lawyer learned during the representation of the former client?

Attack or challenge the work that the lawyer did on behalf of the former client?

Engage in work that is in some way disloyal to the former client or could cause the former client to feel betrayed?

If yes to any of these, you have a successive conflict.

When are Matters “Substantially Related”?

Matters are “substantially related” if they involve the same transaction or legal dispute, or if there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.

e.g., a lawyer who learned extensive private financial information about a business client in the ordinary course of representing that client may not subsequently represent that person’s spouse in seeking a divorce

 

Info Obtained in Former Representation

A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter is not permitted to reveal information relating to the representation to the disadvantage of the former client except when permitted or required by the MR.

In addition, a lawyer is not permitted to use such information except when the Model Rules so require or permit, or the information has become generally known. The former client can waive this requirement through informed written consent. MR 1.9(c), incl. cmt. 9.

Conflicts when a lawyer switches firms

1) Limitations on lawyer

A lawyer is not permitted to represent knowingly a person in the same or a substantially related matter in which a firm with which the lawyer was formerly associated had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired confidential information that is material to the matter.

The former client may give informed consent, confirmed in writing, to permit such representation, however. MR 1.9(b).

2) Limitations on former firm

If a lawyer has terminated an association with a firm, the firm is not prohibited from subsequently representing a person with interests that are materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has confidential information that is material to the matter. MR 1.10(b).

A client may give informed consent, in writing, to overcome a disqualification.

MR 1.11(a) - Government Lawyers COIs

a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:

(1) is subject to Rule 1.9(c) (shall not use information relating to the representation to the disadvantage of the client or reveal confidential information); and

(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.

Meaning of “Matter” under MR 1.11(e)

For purposes of determining a conflict by a former or current government lawyer, the Model Rules define the term “matter” as including:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties

(ii) any other matter covered by the conflict of interest rules of the appropriate government agency. MR 1.11(e).

Same definition works substantively for CA.

NOTE: Statute drafting, rule making, or other policy drafting is not listed here

MR 1.9(c)

c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client

Compare MR 1.11(a) and MR 1.9(a)

MR 1.11(a)(2):

(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation

-Narrower than “represented” in 1.9

MR 1.9(a):

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

NOTE: Material adversity is not a requirement in MR 1.11.

Whole Firm Disqualification due to former government attorney

If a former government lawyer is disqualified from representation, no lawyer in the firm with which the former government lawyer is associated may knowingly undertake or continue representation in the matter unless:

(i) the disqualified lawyer is timely screened from any participation in the matter and gets no part of any fee from the matter; and

(ii) written notice is promptly given to the appropriate government agency to enable it to ascertain whether the lawyer and firm are in compliance with the conflict rules MR 1.11(b).

MR 1.11(c) Confidential Government Information

“Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person”

‘confidential government information’ means information that has been obtained under governmental authority and … the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public 

Paragraph (c) operates only when the lawyer in question has knowledge of the information, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the lawyer

Overview of Conflicts for Government Attorneys

Government officials and employees are conflicted under two distinct circumstances:

1. Where they “personally and substantially” participated in the matter (CAN be consented to by government agency); and

2. Where they obtained “confidential government information” that can be used to benefit a private client whose interests are adverse, to that person’s disadvantage (Consent NOT an option)

MR 1.11 Screening Requirements for Government Lawyers

When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule

SB 574, Attorney use of GenAI

-bans delegating practice of law to AI

-Requires citation verification before filing briefs

-Requires disclosure of AI use for anything filed with courts and to consider disclosure for materials to the public

-Ban confidential info into open-access AI tools

-Allows for Bar discipline and court sanctions

MR 1.12(b): Neutrals

(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.

Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

MR 1.12(c): Screening

(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule

MR 1.10: Imputed Conflicts

(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 MR 1.7, unless:

(1) the prohibition is based on a personal interest of the disqualified lawyer and doesn’t present a significant risk of materially limiting the representation of the client by the remaining lawyers . . . or

Comment 3: MR 1.10 does not prohibit where neither questions of client loyalty or protection of confidential information are involved

(2). . . the prohibition arises out of the disqualified lawyer’s association with another firm . . .”

Imputed Conflicts, Summary

Generally, if one lawyer in a firm is barred from working on a matter by MR 1.7 or 1.9, none of the firm’s other lawyers can’t work on it unless: 

*you get informed client consent or

*prior representation not by that lawyer personally but by other former firm lawyers & fits the exception re: no significant risk of materially limiting representation

*or, if the conflict arises under MR 1.9(a) (former client of a lawyer when she was at a previous firm) or (b) (former client of a firm where lawyer once worked) and the firm sets up a SCREEN meeting the requirements of MR 1.10(a)(2)

Practical Aspects and Ramifications of Screening

Screening involves a set of intra-firm protocols that isolate the work of one lawyer (or group of lawyers) from the work another lawyer (or group of lawyers)

Examples of screening procedures:

Firm wide notification of the screen

Secured client files

Prohibition on fee sharing

Under MR, screens are not permitted where the conflict involves:

Two present clients of a firm

One present client and one former client of a single firm

Under MR, screens are permitted where the conflict involves:

1.9(a) or 1.9(b) arising out of disqualified lawyer’s association with prior firm (1.10)

Work before lawyer became a lawyer

Former government lawyer joins a firm (1.11)

Prospective client who does not become actual client (1.18)

Lawyer disqualified based on work as judge, law clerk, arbitrator, mediator (1.12(c))

NOTE:  screens under these rules have different requirements check individual rules and include requirements in outline

Screening Details under MR 1.10(a)(2)

Instead of getting ICCIW (informed consent in writing) from former client, firm has to do an effective screening communication as described in MR 1.10(a)(2):

  *prompt written notice to any affected former client

  *a description of screening procedures

  *a statement of the firm’s and screened lawyer’s compliance w/ MRs

  *a statement that review may be available before a tribunal  

  *and an agreement by the firm to respond promptly to written inquiries/objections from former client &

  *certifications of compliance with MRs given to former client by the screened lawyer and a partner of the firm, if requested in writing, and upon termination of the screening procedures

u

Nonconsentable Conflicts

Can NEVER get consent to conflict where:

-Representing one client against another client in the same litigation

-Attorney reasonably believes that she will be unable to provide competent and diligent representation

-Prohibited by law (for example, some states prohibit co-defendants in a criminal matter being represented by the same lawyer)