#11718 - Conflict Of Interest - Ethics

MR 1.7 prohibits representing two or more clients with conflicting interests where the representation is prohibited by law, or where the representation involves the assertion of a claim by one client against another client in the same litigation. (Dresser industries) Otherwise, a lawyer may represent a client despite a concurrent conflict with another client if two conditions are met: (1) each client gives informed written consent and (2) the lawyer reasonably believes that they will be able to provide competent and diligent representation to each client.

Arguing both sides of the same position: MR 1.7 bars a lawyer from representing a client if the representation of one client will be directly adverse to the representation of another. Therefore, a lawyer cannot argue one side of a legal question in one case and the other side in another case while the first case is still pending in the same court, because invariably one of the clients will prevail, and the one who does not will have had his lawyer arguing against his position. While both clients could give informed consent in writing, it is unlikely that they would.

Some conflicts are nonconsentable. If the lawyer does not reasonably believe that competent and diligent representation can be afforded to each client, a lawyer cannot properly even ask for client consent, and even where it is volunteered it would not be sufficient to allow the conflicted representation.

Multiple criminal defendants: a lawyer usually cannot represent multiple criminal defendants in the same case, unless the Ds interests are in alignment.

Hypo: a couple comes to you for a divorce. Usually routine to only represent one party. You can suggest another attorney to the other party.

Hypo: you represent doctor Jones. Doctor fired by the hospital, she believes that because of age discrimination. While the matter is pending, a buyer of the house comes to you for action of fraud to fix the house. The seller of the house is the doctor.

doctor is a current client, the representation involves the assertion of a claim by one client against another client, but it is not in the same litigation. Therefore, you have to get (1) consent, (2) reasonably believes that the will be able to provide competent and diligent representation to each client.

Counsel who was representing petitioner manufacturer in two law suits became counsel for a class action brought against petitioner and other manufacturers of oil well drill bits. The lower court denied petitioner's motion to disqualify counsel in the class action. The court held that the lower court clearly and indisputably abused its discretion. Petitioner's right to the grant of its motion was clear and indisputable. Under controlling national ethical standards, counsel was required to exercise independent professional judgment on behalf of petitioner and to avoid even the appearance of impropriety. In its representation of petitioner, counsel had had unfettered access to data concerning petitioner's management, organization, finances, and accounting practices. Counsel engaged in privileged communications with petitioner's in-house counsel and officers in choosing defense and litigation strategies. The public appearance of impropriety was not outweighed by any exceptional circumstances. Rather, counsel's sole reason for suing petitioner was its own self-interest. Thus, disqualification should have been granted. Therefore, the court issued a writ of mandamus.

Hot potato doctrine: A firm may not drop a client like a hot potato, especially if it is in order to keep a far more lucrative client.

Two appeals regarding the future of an institution in New Hampshire involving parties represented by New Hampshire Legal Assistance (NHLA) have been consolidated in this opinion. NHLA served as counsel for two class actions: one brought on behalf of female prisoners seeking better facilities, and one involving the residents of an institution for the mentally retarded that was under consideration as a temporary replacement for the women’s prison. (The state had, at one point, offered to use the institution as a replacement for the prison that the women were challenging, but NHLA did not accept this offer.) Appellants argue that these cases placed NHLA in an unresovable conflict of interest and that they should have been removed, an argument dismissed by the district court on the grounds of “necessity.”

Although this conflict probably didn’t seriously affect the trial proceedings, it undoubtedly affected NHLA’s actions in the remedial stage. As such, the district court’s remedial order is vacated and the case is remanded for a new trial to determine the proper remedy for the prisoner’s Constitutional deprivation.

Petitioners, three codefendants at a state criminal trial in Arkansas, made timely motions, both a few weeks before the trial and before the jury was empaneled, for appointment of separate counsel, based on their appointed counsel's representations that, because of confidential information received from the codefendants, he was confronted with the risk of representing conflicting interests and could not, therefore, provide effective assistance for each client. The trial court denied these motions, and petitioners were subsequently convicted. The Arkansas Supreme Court affirmed, concluding that the record showed no actual conflict of interests or prejudice to petitioners.

Supreme Court held that attorney's request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interests, should be granted.

Positional conflicts: A conflict would occur when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.

Successive conflict between a current client and a former client

MR 1.9 A conflict exists at all in this setting only if the interests of the two clients are materially adverse and if there is a substantial risk that confidential information obtained in the prior representation would materially advance the new client’s position in the second matter. However, the representation can still be undertaken if the former client gives informed written consent.

Two elements: 1. Materially adverse; 2. Substantially related (p389)

Plaintiff corporation purchased the subsidiary from its owner. The corporation sued defendants, a competitor company and its owners, the subsidiary's former owner and manager for violations of their non-competition/non-disclosure agreements, misappropriation of trade secrets, and intentional interference with employment relationships. The corporation moved to disqualify counsel for the previous owner based on a conflict of interest. The corporation's motion to disqualify the previous owner's counsel was granted.

Unless an exception applies, a lawyer or his firm cannot represent a client whose interests are materially adverse to those of the former prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. MR 1.18(c) and O Builders.

Three elements: (1) materially adverse, (2) same or substantially related matter, (3) significantly harmful to that person in the matter

Exceptions: firms are allowed to represent the new client (1) if both the new client and the former prospective client give informed written consent, or (2) the lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client and that lawyer is screened from any participation in the new case.

When a lawyer moves between law firms, both that lawyer and her new firm have a duty to determine whether the move creates any conflicts of interest, and to resolve any such conflicts if possible.

Petitioner was convicted and sentenced to death for premeditated murder during or following the commission of an attempted forcible sodomy. Mickens later filed a habeas petition, alleging he was denied his Sixth Amendment right to effective assistance of counsel because his lead attorney had represented the victim on criminal charges at the time of the murder. Saunders, Mickens’ attorney, never disclosed his representation to Mickens, his co-counsel, or to the court. Mickens brought appeal and the appellate court found he had not demonstrated adverse impact.

The court held that in order to demonstrate a Sixth Amendment violation, it is imcumbent upon the defendant to prove that he has been prejudiced by his counsel’s performance.

Holloway- automatic reversal under Strickland standard, because the same counsel was forced to jointly represent all defendants despite his objections on conflict of interest grounds.

Distinction: in Mickens the former client is dead, so it’s a former client case

Cronic- refuse to presume harm/ prejudice

Sullivan- multiple defendants and their interests are in alignment, same lawyer assigned. D must show prejudice.

Can lawyers moving from government service to private practice work on a case against the government?

Respondent represented the government of Libya in connection with criminal and civil disputes and litigation arising from a bombing of an aircraft over Lockerbie, Scotland....