Friday, September 19, 2014

More Notes from BNA on Conflicts


Two updates of notes from ABA/BNA:

"If Job Hunt Extends to Client’s Adversary, Risk of Personal Conflict Must Be Assessed" --
  • "A nuanced analysis rather than any bright-line test must be used to determine whether a conflict of interest exists when a lawyer wants to be hired by a client's opponent or the law firm representing the adversary, the District of Columbia bar's ethics committee advised in July."
  • "The comprehensive opinion explains how lawyers should judge whether and when a job hunt may create a conflict. It also outlines what options a lawyer has if a conflict does exist, and discusses the responsibilities of supervisory lawyers when an associate's employment search gives rise to a conflict."
  • "When a lawyer in a private firm is seriously angling for a job with a law firm or litigant she is opposing in a client's matter, the lawyer's representation of the client may be materially limited by the lawyer's personal interests. Model Rule 1.7 cmt. [10]. The lawyer facing such a conflict must let the client know so that the client can make an informed decision about whether to continue the relationship."
  • "'There is no ‘bright line' test for determining the point during the employment process when a personal interest conflict arises, and that point may vary,' the committee stated."
  • "The opinion identifies two criteria to consider in determining whether a personal interest conflict exists. One is whether the lawyer has a material and active role in representing the client, either by having contact with the client regarding the matter, having contact with the adversary or adversary's lawyer in the course of working on the client's matter or doing work on the substance of the matter."
  • "The second criterion is the extent to which the lawyer's interest in the adversary or the adversary's lawyer is 'targeted, communicated and/or reciprocated.'"
Read the full article for additional cases, ethics opinions, and suggested options for addressing these scenarios.

"Trying to Shift Sanction to Client Alone Creates Unwaivable, Disqualifying Conflict" --
  • "An attorney who argues that a sanction imposed jointly on his client and himself should be paid solely by the client creates an unwaivable conflict requiring the lawyer's disqualification even if no party has complained, the Washington Court of Appeals, Third Division, held Aug. 12.'"
  • "The panel disqualified the lawyer in question on its own initiative, saying that courts have inherent authority to order an attorney's removal even when no other participant has sought it."
  • "Moreover, the court said the lawyer cannot continue to represent his own interests in this matter. He must obtain independent counsel to argue that the client alone should pay the sanction, and he may not reveal confidential information to that attorney except in response to any accusations the former client asserts against the lawyer, Judge George B. Fearing said."
  • "The appeals court said that Caruso violated “the supreme commandment of attorney ethics”—undivided loyalty to the client and the shunning of any self-interest at odds with the client's interest—by contending on appeal that the sanction should borne entirely by Wixom if it is upheld."
  • "The court found that Caruso was representing both himself and Wixom in challenging the sanction, and that the lawyer's personal interest in shifting the sanction entirely to Wixom was directly adverse to Wixom's interests."
  • "Although no Washington cases have addressed this issue, Fearing said that, based on general principles of attorney ethics and several federal decisions, 'we possess authority to disqualify an attorney, whose representation of a client poses an actual conflict with himself or another client.'"

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