Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Chapter 4 Conflicts of Interest The Duty of Loyalty

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Duty of Loyalty Each and every person in the legal profession owes the duty of absolute loyalty to each and every client.

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Add the Duty of Confidentiality We have a duty to preserve the confidences of our client FOREVER. Duty of Loyalty Duty of Confidentiality Possibility of a conflict of interest

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Personal Life Creates Conflicts Purchases and sales of items from clients raises a question of conflict  transaction in good faith exception? Membership in an organization raises a question

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Being a Witness Creates a Conflict If you are a witness in the case  your interests may be adverse to the interests of the client  your credibility may put your client’s case at risk

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. A Financial Interest In The Case Creates A Conflict Champerty is the purchasing of a claim. Runners/cappers have a financial interest in a claim/case. Splitting fees with a lawyer gives you a financial interest in the claim/case.

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Gifts Create Conflicts A gift of anything other than a small token of appreciation creates a conflict of interest.

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Publicity Rights Create Conflicts Don’t take/accept the literary rights to the client’s story prior to the conclusion of the case.  It gives the appearance of a personal interest in dragging the case out or making it more sensational

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Intimate Relationships Create Conflicts An emotional relationship with a client can impair your professional judgment.

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Professional Independence You are in a fiduciary relationship with the client Fiduciary relationship is one of trust and confidence.

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Representing Multiple Clients In The Same Transaction May Create A Conflict Watch out for  Seller and purchaser  Insured and insurer  Husband and wife  Debtor and creditor

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. When Your Client Is A Corporation Your duty of loyalty is to the corporation in the form of its Board of Directors. No duty to individuals or officers

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Joint Representation of Criminal Defendants It is possible that their interests may conflict as the case progresses. This would result in a conflict of interest.

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. What Happens If A Conflict Of Interest Occurs? It would be assumed:  That you shared your client’s confidential information.  This would reflect upon the entire firm.

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Preventing Disqualification Start out with a really good personal conflict check system Add an honest and up-to-date resume Pay attention to new cases as they come in to the firm Be up front about potential conflicts

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. The Ethical or Chinese Wall Theory Originally reserved for government lawyers transitioning to the public sector Our state law on ethical wall:

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Getting a Waiver From your former client The one whose confidential information you already hold

Orlik: Ethics for the Legal Professional, 6 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. What To Do When A Conflict is Evident Gather your facts Speak directly to a responsible lawyer Do not try to hide a conflict