Current-client conflicts - Lawyer’s personal interest or dut...

Learning Outcomes

After reading this article, you will be able to identify when a lawyer’s personal interests or duties create a conflict with current client representation. You will understand the rules for identifying, avoiding, and waiving such conflicts, including the requirements for informed consent. You will also be able to apply these principles to MPRE-style questions and avoid common pitfalls.

MPRE Syllabus

For the MPRE, you are required to understand the rules governing conflicts of interest arising from a lawyer’s personal interests or duties. This article covers:

• The prohibition on representing a client when the lawyer’s personal interests may materially limit the representation.
• The effect of personal relationships, financial interests, and other duties on current-client conflicts.
• The requirements for waiving personal interest conflicts, including informed consent confirmed in writing.
• The distinction between personal conflicts and those imputed to the lawyer’s firm.
• The prohibition on sexual relationships with clients and exceptions.
• The lawyer’s duties when a personal interest conflict arises during representation.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A lawyer is asked to represent a client in a matter where the lawyer’s spouse represents the opposing party. What must the lawyer do before accepting the representation?
   1. Decline the representation.
   2. Obtain informed consent from both clients, confirmed in writing.
   3. Proceed without disclosure if the lawyer believes they can be impartial.
   4. Refer the client to another lawyer.
2. Which of the following is true regarding sexual relationships with current clients?
   1. They are always permitted if the client consents.
   2. They are prohibited unless the relationship predated the representation.
   3. They are allowed if disclosed to the client’s adversary.
   4. They are permitted if the client is a business entity.
3. If a lawyer’s personal financial interest may materially limit the representation of a client, the lawyer:
   1. Must withdraw immediately.
   2. May proceed if the client gives informed consent, confirmed in writing, and the lawyer reasonably believes they can provide competent and diligent representation.
   3. May proceed if the client is not harmed.
   4. May ignore the conflict if the lawyer’s interest is minor.
4. A lawyer’s personal interest conflict is:
   1. Always imputed to the entire firm.
   2. Never imputed to the firm.
   3. Imputed only if it presents a significant risk of materially limiting other lawyers’ representation.
   4. Imputed only in criminal cases.

Introduction

A lawyer’s duty of loyalty to a current client is fundamental. However, conflicts can arise if the lawyer’s own interests, relationships, or duties to others may materially limit their ability to represent the client. The Model Rules prohibit a lawyer from representing a client in such situations unless strict requirements are met. Understanding these rules is essential for the MPRE and for ethical legal practice.

Key Term: Personal Interest Conflict
A situation where a lawyer’s own interests, relationships, or duties may materially limit their ability to represent a current client.

Identifying Personal Interest Conflicts

A lawyer must not represent a client if there is a significant risk that the representation will be materially limited by the lawyer’s own interests. This includes financial interests, personal relationships, or duties to third parties.

Key Term: Material Limitation
A substantial risk that a lawyer’s ability to consider, recommend, or carry out appropriate action for a client will be limited by the lawyer’s own interests or duties.

Common Types of Personal Interest Conflicts

1. Financial Interests

A lawyer’s financial stake in a matter, such as an investment adverse to the client, can create a conflict. For example, if a lawyer owns stock in a company that is adverse to a client, the lawyer’s judgment may be compromised.

2. Personal Relationships

Close family relationships between lawyers on opposing sides (e.g., spouses, parents, children, siblings) create a conflict unless both clients give informed consent, confirmed in writing. This conflict is personal and is not imputed to the lawyer’s firm.

Key Term: Informed Consent
Agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks and alternatives.

Key Term: Imputed Conflict
A conflict that is attributed to all lawyers in a firm due to one lawyer’s conflict, unless the conflict is personal and does not present a significant risk of materially limiting other lawyers’ representation.

3. Duties to Others

A lawyer may owe duties to former clients, third parties, or other entities (such as serving as a fiduciary or board member) that could materially limit their representation of a current client.

4. Sexual Relationships with Clients

A lawyer is prohibited from engaging in a sexual relationship with a current client unless the relationship existed before the representation began. This prohibition is personal and is not imputed to the firm.

Key Term: Sexual Relationship Conflict
A conflict arising when a lawyer has a sexual relationship with a current client, unless the relationship predated the representation.

Waiver of Personal Interest Conflicts

A lawyer may proceed with representation despite a personal interest conflict only if:

1. The lawyer reasonably believes they can provide competent and diligent representation to the client.
2. The representation is not prohibited by law.
3. The client gives informed consent, confirmed in writing.

If these conditions are not met, the lawyer must decline or withdraw from the representation.

Imputation of Personal Interest Conflicts

Most personal interest conflicts are not imputed to other lawyers in the firm unless there is a significant risk that the conflict will materially limit the representation of the client by the other lawyers.

Worked Example 1.1

A lawyer is asked to represent a client in a contract dispute. The opposing party is represented by the lawyer’s sibling, who works at a different firm. Can the lawyer accept the representation?

Answer:
The lawyer may accept the representation only if both the client and the sibling’s client give informed consent, confirmed in writing. The conflict is personal and is not imputed to the lawyer’s firm.

Worked Example 1.2

A lawyer is negotiating a business deal for a client. The lawyer owns a significant interest in a competing business. The lawyer discloses this to the client and believes they can represent the client competently. The client consents in writing. Is the representation proper?

Answer:
Yes, if the lawyer reasonably believes they can provide competent and diligent representation, and the client gives informed consent in writing, the representation may proceed.

Worked Example 1.3

A lawyer begins a romantic relationship with a client after the representation has started. The client consents to the relationship. Is this permitted?

Answer:
No. A lawyer may not initiate a sexual relationship with a current client during the representation, even with the client’s consent. The only exception is if the relationship predated the representation.

Exam Warning

Be careful: A client’s consent alone does not cure a personal interest conflict unless the lawyer also reasonably believes they can provide competent and diligent representation. Both elements are required.

Revision Tip

Always check if a personal interest conflict is personal to the lawyer or could affect the entire firm. Most are not imputed unless they present a significant risk to other lawyers’ representation.

Key Point Checklist

This article has covered the following key knowledge points:

• A lawyer must not represent a client if personal interests may materially limit the representation.
• Personal interest conflicts include financial interests, close family relationships, duties to others, and sexual relationships with clients.
• Sexual relationships with current clients are prohibited unless pre-existing.
• Most personal interest conflicts are not imputed to the firm unless they risk materially limiting other lawyers’ representation.
• Waiver of a personal interest conflict requires informed consent, confirmed in writing, and the lawyer’s reasonable belief in competent, diligent representation.
• If a personal interest conflict cannot be waived, the lawyer must decline or withdraw from the representation.

Key Terms and Concepts

• Personal Interest Conflict
• Material Limitation
• Informed Consent
• Imputed Conflict
• Sexual Relationship Conflict