Chapter Four Conflicts of Interest In this chapter, you will learn about: Rules governing conflicts involving clients, including simultaneous and successive representation Rules governing personal and business conflicts Disqualifications caused by individual conflicts of interest that are imputed to an individual’s firm Page 1 of 2

Chapter Four Conflicts of Interest (continued) Client consent to conflicts Screens to protect against disqualification The use of conflicts checks and paralegals’ responsibility to maintain records Page 2 of 2

What Ethics Rules Governing Conflicts of Interest Cover Concurrent representation of adverse interests Representation that is adverse to a former client Representation of clients whose interests are aligned Lawyer’s financial, personal, or business interests that are or may be adverse to a client

Imputed/Vicarious Conflicts The conflict of interest of one person in a law firm is imputed to everyone in the firm, causing the whole firm to be disqualified

Concurrent Representation Concurrent (or Simultaneous) representation occurs when an attorney represents two clients whose interests are adverse to one another.

Consents (or Waivers) Whether a court honors a client’s consent depends on a number of circumstances, including: the extent of the disclosure and discussions with the client about the implications of the dual representation whether the consent was truly voluntary and not given under pressure from the attorney or others when the attorney raised the issue with his or her client the capacity of the client to understand fully the implications of the dual representation and consent whether or not the client consulted with and relied on independent counsel whether the consent is written and signed Page 1 of 2

Issue Conflicts Occur when an attorney argues opposing sides of a legal issue, the result of which may be that one client’s interests are harmed

Successive Representation Successive representation is a conflict of interest situation involving a current matter and a former client whose interests conflict.

Other Conflicts Rules Cover: Business transactions with clients Publication, literary, and media rights Financial assistance to clients A lawyer’s interest in litigation Gifts from clients Agreements with clients limiting the attorney’s malpractice liability Payment of attorney’s fees by a third party Relatives of lawyers Sexual relations with clients

Imputed Conflicts Imputed (or vicarious) conflicts: the imputation of a conflict to others in a firm so that the entire firm is disqualified from undertaking the representation

Screens A screen isolates a disqualified person by setting up law office procedures to prevent the affected person from any involvement with or communication about the matter.

Procedures for Using Screens A memorandum to all individuals in the firm informing them of a conflict and screen, and admonishing them not to discuss the matter with the disqualified person Indications on files and documents to indicate the limitations on access Programmed computer warnings or blocks to prevent screened employee’s access to documents on the firm’s computer network