1.Overview of Conflicts of Interest

a. MR 1.7(a)(2) states conflict of interest in most general terms; threshhold test

i. Significant risk that representation would be materially limited by

(1) Responsibilities to another client

(2) Relationship with a third person

(3) Lawyer’s own interests

ii. If yes, don’t represent unless

(1) You reasonably believe that you can provide competent and diligent representation to client (subjective AND objective), and

(2) Client provides informed consent, confirmed in writing [See MR 1.0(e) for definition of informed consent]

iii. MR 1.8 contains a list of specifically prohibited conflicts of interest

(1) Some are absolute prohibitions

(2) Some contain exceptions for client consent

(3) Always remember that 1.7(a)(2) still applies as a general prohibition

2. Attorney - Client Conflicts MR 1.7(a)(2) (generally)

a. Lawyer’s financial interests

i. Business relations with client MR 1.8(a)

ii. Beneficiary under will MR 1.8 (c)

iii. In litigation itself

(1) Media rights MR 1.8(d)

(2) Lawyer’s investment in litigation

(a) $$ to client MR 1.8 (e)

(i) court costs and expenses permitted MR 1.8(e)(1) or (2)

(b) Proprietary interest MR 1.8 (i)

(i) lien to secure fees and expenses permitted [BUT SEE: GA S CT Formal Advisory Opinion 87-5 limiting use of lien over client papers and GA Rule 1.8(j)(1)]

(ii) contingent fee in a civil case permitted

b. No sexual relationship with client unless pre-existing MR 1.8(j)

c. Family member as opposing counsel ?

i. Pre-2002 prohibits absent client consent [old MR 1.8 (i)]

ii. Nothing in Rule 1.8 but see MR 1.7 Comment [11]

d. Lawyer as witness MR 3.7

3. Third Party Conflicts MR 1.7(a)(2) (generally)

a. Other person paying lawyer’s fee MR 1.8 (f)

i. Client consent

ii. No interference from payor

iii. Client confidentiality protected

b. Direction from a non-lawyer MR 5.4

i. No fee sharing

ii. No partnership

iii. No professional corporation

c. Referrals MR 5.4 (c)

4. Client - Client Conflicts

a. Simultaneous

i. Corporation/Organization vs. its directors, officers or shareholders MR 1.13

ii. Vicarious disqualification in a firm MR 1.10(a)

iii. Opposing a current client MR 1.7(a)(1)

(1) Lawyer must reasonably believe that she can still represent both competently (subjective and objective)

(2) Cannot represent clients with opposing claims in same litigation

(3) Informed client consent confirmed in writing

iv. Clients with differing interests MR 1.7(a)(2)

(1) Combined settlements or pleas MR 1.8(g)

(2) Almost never permissible to represent criminal co-Ds Comment [23] to MR 1.7

b. Successive

i. Lawyer’s own past client MR 1.9 (a)

(1) Sullivan County v. Town of Acworth, 686 A.2d 755 (N.H. 1996)

(a) Sets out four elements of a MR 1.9 violation

(b) Violation of MR 1.9 is sufficient for disqualification; showing of actual disclosure of confidences or other harm not required

ii. Client of lawyer’s former firm MR 1.9 (b)

iii. Client of lawyer who has left firm MR 1.10(b)

(1) Nissan Motor Corp. v. Orozco, 595 So.2d 240 (Fla.App.1992)

Chart summarizing Nissan case

iv. Former client of lawyer who has joined firm

2002 MODEL RULES

(1) MR 1.9(b) and MR 1.10(a) combine to disqualify the new firm if the newly associated lawyer would be.

(2) But see MR 1.11 if the new lawyer comes from government practice (permitted if screening requirements are met)

2009 AMENDMENT TO MODEL RULE 1.10(a)

New firm is NOT disqualified if screening requirements are met

v. Former government lawyer MR 1.11 (a), (b)

vi. Past client of government lawyer MR 1.11 (c)

vii. Former judge, arbitrator, law clerk MR 1.12

c. Prospective MR 1.18