Conflicts of Interest: Current Clients: every key term you need (+ practice quiz)
25 flashcard terms for Professional Responsibility Topic 4, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
Under Model Rule 1.7 a conflict exists if representing one client will be directly adverse to another current client, or if there is a significant risk that the representation will be materially limited by other responsibilities or interests.
Direct adversity
Suing a current client, or cross-examining that client as an adverse witness, is directly adverse even where the two matters are wholly unrelated, because loyalty runs to the whole client relationship.
Material limitation conflict
Even without direct adversity, a conflict arises when the lawyer's duties to another client, a former client, a third person, or her own interests create a significant risk of materially limiting the representation.
Consentable conflict
A conflict may be waived when the lawyer reasonably believes she can competently and diligently represent each affected client, the representation is not prohibited by law, the clients are not opposing parties in the same litigation, and each gives informed consent confirmed in writing.
Nonconsentable conflict
Some conflicts cannot be cured by consent, notably representing opposing parties in the same litigation, or any situation where an objectively reasonable lawyer would not believe competent and diligent service is possible for each client.
Informed consent confirmed in writing
For current client conflicts the client must consent after full disclosure of risks and alternatives, and the consent must be confirmed by a writing; an oral waiver alone does not satisfy Model Rule 1.7(b).
Advance waiver of future conflicts
A prospective waiver is effective to the extent the client reasonably understands the material risks, so a general waiver from an unsophisticated client is usually ineffective while a narrow waiver from a sophisticated client with its own counsel often holds.
Positional conflict
Arguing opposite sides of the same legal question in different courts is permissible unless there is a significant risk that a win for one client would materially undercut the other, as when both matters are in the same appellate jurisdiction.
Imputation among current clients
Model Rule 1.10 imputes one lawyer's current client conflict to every lawyer in the firm, except for conflicts based on a purely personal interest that pose no significant risk of materially limiting other lawyers' work.
Business transactions with a client
Model Rule 1.8(a) permits a deal with a client only if the terms are fair and reasonable and disclosed in writing in understandable terms, the client is advised in writing to seek independent counsel, and the client gives signed informed consent to the essential terms and the lawyer's role.
Use of client information for advantage
Model Rule 1.8(b) forbids using information relating to the representation to a client's disadvantage without informed consent, which reaches trading on a client's confidential business plans.
Client gifts to a lawyer
Model Rule 1.8(c) forbids soliciting a substantial gift from a client and forbids preparing an instrument giving the lawyer or a close relative a substantial gift, unless the lawyer is related to the client.
Literary and media rights
Before the representation concludes, a lawyer may not acquire literary or media rights to an account based substantially on the representation, because that interest can skew tactical choices toward a better story.
Financial assistance to a client
Model Rule 1.8(e) bars financial help to a client in pending or contemplated litigation, except for advancing court costs and litigation expenses contingent on outcome, paying those costs outright for an indigent client, and modest emergency aid by a pro bono legal services lawyer.
Payment by a third party
Model Rule 1.8(f) allows someone other than the client to pay the fee only if the client gives informed consent, there is no interference with the lawyer's independent judgment or the relationship, and client confidences are protected.
Aggregate settlement
Model Rule 1.8(g) requires each client in a multiple client settlement to give informed consent in a signed writing after being told the existence and nature of all claims and the participation of each person in the settlement.
Proprietary interest in the cause of action
Model Rule 1.8(i) forbids acquiring a proprietary interest in litigation, except for a lien to secure the lawyer's fee or expenses and a reasonable contingent fee in a civil case.
Sexual relations with a client
Model Rule 1.8(j) prohibits sexual relations with a client unless a consensual relationship existed when the client-lawyer relationship began, and this personal conflict is not imputed to other firm lawyers.
Imputation of Model Rule 1.8 conflicts
Most of the specific transaction prohibitions apply to every lawyer in a firm as if each were the individual lawyer involved, so a partner cannot cure a barred transaction by routing it through an associate.
Insurance defense triangle
When an insurer retains counsel for an insured, the insured is ordinarily the client, so counsel may not let cost containment guidelines or reservation of rights positions compromise the defense of the insured.
Lawyer as intermediary between clients
A lawyer may represent both sides of a transaction only where the interests are substantially aligned, the risks including possible loss of privilege between them are explained, and each client consents in writing after full disclosure.
Conflicts among family and relatives
A lawyer whose close relative represents an opposing party has a personal conflict requiring informed consent from the affected client, but that conflict is not imputed to the lawyer's firm.
Conflict caused by lawyer's own interest
A lawyer's business investments, board seats, referral relationships, or desire to keep a large institutional client can materially limit the representation and must be disclosed and consented to where waivable.
Hot potato doctrine
A lawyer generally may not drop one current client in order to take on a more lucrative matter adverse to that client, because doing so converts a current client conflict into a former client conflict by manipulation.
Timing and remedies for conflicts
Conflicts must be screened at intake and monitored as parties change; remedies include obtaining valid consent, declining the matter, or withdrawing from one or both representations to avoid using confidences against a client.