TOPIC I: CONFLICTS BETWEEN CURRENT CLIENTS R. 1.7, 1.8 P.R Prof. Janicke

TWO IMPORTANT RULES RULE 1.7 SETS THE GENERAL STANDARDS RULE 1.8 APPLIES THE STANDARDS IN SPECIFIC SITUATIONS – OFTEN SURPRISING 2016CONFLICTS BETW. CURRENT CLIENTS 2

RULE 1.7 REPRESENTATIONS NOT ALLOWED (WITHOUT CONSENTS) IF: –THE INTERESTS ARE “DIRECTLY ADVERSE,” or –A SIGNIFICANT RISK THAT ONE OF THE CLIENTS WILL BE SHORT-CHANGED DUE TO THE OTHER REPRESENTATION 2016CONFLICTS BETW. CURRENT CLIENTS 3

“DIRECTLY ADVERSE” HELPING ONE CLIENT WILL NEGATIVELY IMPACT THE OTHER –EXAMPLE: MAKING OUT-OF-COURT CLAIM FOR BREACH OF CONTRACT RULE APPLIES EVEN IF LAWYER’S WORK FOR THE OTHER CLIENT IS IN AN UNRELATED AREA 2016CONFLICTS BETW. CURRENT CLIENTS 4

BOTTOM LINE: LAWYER GENERALLY CANNOT PURSUE ANY TYPE OF CLAIM AGAINST A PRESENT CLIENT BUT CAN OVERCOME THE CONFLICT IF: THERE IS INFORMED CONSENT BY BOTH –REALLY HARD TO GET IN PRACTICE –AND IS ALWAYS REVOCABLE R. 1.7 C CONFLICTS BETW. CURRENT CLIENTS 5

SECOND KIND: RISK OF SHORT-CHANGING A CLIENT APPLIES WHERE THERE IS NO DIRECT ADVERSE INTEREST –EXAMPLE: NEGOTIATING AN AGREEMENT BETWEEN TWO NOW-FRIENDLY CLIENTS USUALLY NO CONFLICT IF THEY ARE ALIGNED –RISK: LAWYER WILL FAVOR ONE OVER THE OTHER (USUALLY THE MORE LUCRATIVE ONE, OR THE MORE LONGSTANDING ONE) 2016CONFLICTS BETW. CURRENT CLIENTS 6

THIS KIND IS ALSO “CONSENTABLE” BUT ALSO DIFFICULT TO GET AND IS ALSO REVOCABLE LATER ON R. 1.7 C CONFLICTS BETW. CURRENT CLIENTS 7

A SUBTLE DISTINCTION CONFLICT ARISES IF REPRESENTATION OF CLIENT #2 IS UNDER A “RISK” OF BEING “MATERIALLY LIMITED” CONFLICT CAN BE CURED IF THE REPRESENTATION WILL NONETHELESS BE “COMPETENT AND DILIGENT” [???] >>> 2016CONFLICTS BETW. CURRENT CLIENTS 8

MEANINGLESS PHRASES? PERHAPS IN REALITY, THE LAWYER MAKES THE CALL MANY CLIENTS ARE HAPPY WITH THE ARRANGEMENT – IT SAVES MONEY AND HASSLE 2016CONFLICTS BETW. CURRENT CLIENTS 9

SOME NON-CONSENTABLE SITUATIONS SAME FIRM REPRESENTING BOTH SIDES IN A COURT CASE OR A CASE BEFORE A “TRIBUNAL” THAT IS NOT A COURT R. 1.0(m) : –ARBITRATOR –LEGISLATIVE BODY MAKING AN ADJUDICATION –ADMIN. AGENCY MAKING AN ADJUDICATION 2016CONFLICTS BETW. CURRENT CLIENTS 10

WHAT IS CONSENTABLE: REPRESENTING BOTH SIDES IN A MEDIATION, IF DILIGENT AND COMPETENT R. 1.7 C17 –THIS IS NON-ADJUDICATIVE 2016CONFLICTS BETW. CURRENT CLIENTS 11

COMMON REPRESENTATIONS ARE PERILOUS ESPECIALLY IN CRIMINAL CASES PRESERVATION OF EACH CLIENT’S CONFIDENCES MAY WEAKEN THE OTHER’S CLAIM OR DEFENSE >>> 2016CONFLICTS BETW. CURRENT CLIENTS 12

WHAT TO DO IF ONE CLIENT WANTS TO PLEAD OUT (TYPICALLY BE TURNING STATE’S EVIDENCE) USUALLY THE LAWYER MUST WITHDRAW TOTALLY R. 1.7 C29 – IMPORTANT TO READ FULLY 2016CONFLICTS BETW. CURRENT CLIENTS 13

SOME SPECIFIC SITUATIONS RULE 1.8 USING CLIENT INFO TO THAT CLIENT’S “DISADVANTAGE” R. 1.8(b) NO AGGREGATE SETTLEMENTS OR AGGREGATE GUILTY PLEAS R. 1.8(g) 2016CONFLICTS BETW. CURRENT CLIENTS 14

ORGANIZATIONAL CLIENTS R. 1.7 C34 CORPORATIONS, ETC. COMPANY IS THE CLIENT CORPORATE PERSONNEL WOULD BE ADDITIONAL CLIENTS, IF CLIENTS AT ALL –CONFLICT RULES KICK IN –MORE ON THIS SUBJECT IN A LATER TOPIC (TOPIC O) 2016CONFLICTS BETW. CURRENT CLIENTS 15