Chapter Four Conflicts of Interest

1. Chapter FourConflicts 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

2. Chapter FourConflicts 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

3. 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

4. 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

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

6. 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

7. 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

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

9. 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

10. 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

11. 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.

12. 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