MPRE Chapt 2

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MPRE Chapt 2
2012-07-09 16:30:14
MPRE Chapt

MPRE Chapt 2
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  1. Conflict of Interest: Current Clients

    Conflict Abatement Structure
     - Informed Consent
     - Confirmed in Writing
    Conflict Abatement Structure - Client may be allowed to agree to the prohibited conduct in question as long as the lawyer reasonably believes that no harm will result.

    • Informed Consent - 
    •  1) explanation of material risks and dangers
    •  2) explanation of available alternatives

    • Confirmed in Writing - Either:
    •  1) In writing by person or
    •  2) client gives oral consent and lawyer promptly confirms in writing. 
  2. Conflict of Interest: Current Client

    Client to Client 
    Lawyer's benefit to one client is also a detriment to the other client.

    a) Directly Adverse Clients - A lawyer shall not represent a client if the representation is directly in opposition to the interests of another of hte lawyer's clients.

    • b) Lawyer's Responsibilities are Materially Limited -
    •  - May arise because of responsibilities to another client, a third party, or her own interests.
    •  - A lawyer may take inconisitent legal positions in different tribunals at different times on behalf of different clients; except if it will create precedent likely to seriously weaken the opsition of hte other client. 
  3. Conflict of Interest: Current Client

    Adverse Clients Identification
    Confidential Information Authorization 
    Adverse Clients Identification - Lawyer's disclosure to the clients must usually include the identification of hte other conflicting client(s) and the lack of the attorney-client privilege between clients

    Confidential Information Authorization - Full disclosure to one client in securing hte conflict informed consent may require the other client's authorization if it contains his confidential information. 
  4. Conflict of Interest: Current Client

    To abate a 1.7 Conflict - NIC 
    • No harm will result
    • Informed consent
    • Confirmed in writing 
  5. Conflict of Interest: Current Clients

    Related Attorneys 
    A lawyer is prohibited from representing a party if an attorney who is related to the first lawyer representas a directly adverse party.

    An informed consent of both clients after consultation may abate this restriction, and a writing is not required. 

    The prohibition is not imputed firm-wide 
  6. Conflict of Interest: Current Client

    Organizational Clients 
    Lawyer representing one corporate or governmental unit does not necessarily represent their affiliate organizations, therefore a lawyer may accept representation of a case adverse to the affiliate. 
  7. Conflict of Interest: Current Clients

    Organzational Clients
     - Exceptions 
    • No-conflict outcome does not apply if:
    • 1) the related affiliated is considered to be a client of the lawyer;
    • 2) there is a prior understanding that the lawyer will avoid representation adverse to the affiliate
    • 3) the representation would in fact place a material limitation on the loyalty afforded to either client. 
  8. Conflict of Interest: Current Client

    Client to Client 
     - Lawyer Board Member 
    A lawyer for an entity who is also an official member of hte board of directors may be conflicted in advising board of directors when the lawyer's prior work is at issue.

    The lawyer may be required to withdraw from the board to eliminate the conflict.

    Other board members should be advised that the attorney-client privilege does not apply if the lawyer is in a director's capacity.
  9. Conflict of Interest: Current Client

    Current Client/Prohibited Transactions and Related: 
     - No Business Relationship Unless TIC 
    A lawyer shall not eneter into a business relationship with a client (including an estate) she represents in the same transaction.

    An exception allows the client transaction if all three TIC transaction elements are met:

    • 1) Terms of transaction are fair
    • 2) Independent Counsel - must advise in writing to seed the advice of independent counsel
    • 3) Consent in writing - client must consent in a signed writing.  Informed consent must go to both the transactions essential terms and the lawyer's conflict of interest disclosure, not only terms of the underlying transaction.
  10. Conflict of Interest: Current Client

    Information Disadvantaging the Client 
    Lawyer must not use information to a client's disadvantage unless the client gives informed consent.  Mere use of client information wihtout disadvantage is not usually a violation of client loyalty. 
  11. Conflict of Interest: Current Client

    Gifts from Clients
    Lawyer may accept a gift from a client only if the transaciton meets general standards of fairness and does not involve undue influence.

    1) Solicitation and Instrument Preparation: Prohibition includes a testamentary device, unless the lawyer is related to the donor.

    2) Allowed Gifts - Gifts given to a lawyer without a prepared instrument - say a cash bonus at the end of a case - are not per se improper as they are for a judge.