Show:
Former Client Conflicts
Joint Representations
Problem on p.460
Who Actually Read the Cases?
Fun Facts! :-)
100
Which Model Rule sets forth the standard for determining when a conflict exists with respect to a former client?
MR 1.9
100
Can multiple non-adverse clients consent to joint representation notwithstanding a conflict among them?
Yes, they can. The lawyer should not seek consent when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances.
100
Who are the three clients the General Counsel wants to represent?
Carter, Woodward, and the corporation.
100
From the Analytica case: Is the law firm disqualified from representing Analytica in an antitrust suit against NPD given that it previously had access to NPD’s confidential financial and operating data? Why or why not?
Yes. A lawyer may not represent an adversary of his former client if the subject matter is “substantially related.” The Schwartz attorneys had access to NPD’s confidential financial and operating data while putting together the stock deal for Malec. The Schwartz attorneys then wanted to represent Analytica, an adversary of NPD in this antitrust lawsuit. The data provided all matters potentially relevant to both the liability and damage phases of an antitrust lawsuit. The two representations are thus substantially related, even though we don’t know whether any of the information received would be useful in Analytica’s lawsuit.
100
Which members of the team religiously watch The Bachelor/Bachelorette together?
Kristina and Frannie
200
An attorney is providing representation against a former client in a matter substantially related to the initial representation. What is the standard for determining whether a conflict exists?
Whether the new client’s interests are materially adverse to the interests of the former client
200
An attorney represented two plaintiffs who were separately suing a single defendant. Both plaintiffs sustained injuries and/or damages that potentially exceeded 50% of the defendant's insurance policy limit. Should the attorney withdraw from representing one party?
If one case settled first, the second plaintiff's right to a full settlement might be prejudiced. The panel concluded that Rule 1.7 applied and mandated withdrawal from representing one client.
200
Make an argument that the GC should be able to represent all three parties at the outset of the case.
1) There is no conflict since there is no direct adversity and there is no significant risk of material limitation. Carter and Woodward are just subjects in the investigation. 2) Conflict is consentable (lawyer can still provide competent and diligent representation to all three parties).
200
What is the joint defense privilege (U.S. v. Aramony) and was it granted in this case?
Extension of attorney-client privilege. Parties who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims without waiving their right to assert attorney-client privilege. The joint-defense privilege did not protect Aramony’s communications with the GC and outside counsel. Even though the defenses could help preserve UWA’s reputation, the preservation of one’s reputation is not a legal matter.
200
Which one of us grew up farthest away from Chicago?
Will
300
If a conflict with respect to a former client exists, how can it be resolved?
Former client gives informed consent, confirmed in writing
300
Three plaintiffs jointly sue a defendant. The lawyer found possible conflicts of interest. He hands over a piece of paper with a summary of the case facts and asks them to consent to representation. Can he do that?
No. The attorney needs to achieve informed consent explaining: (1) the ways in which their interests could come into conflict; (2) the possible hampering of their respective claims if they were to agree not to take conflicting positions; (3) the possible increased cost and disruption if it were necessary for either or both clients to retain new counsel later, and (4) the implications concerning compensation if a contingent fee is contemplated
300
Make an argument against the GC being able to represent all three parties at the outset of the case.
Significant risk of material limitation due to likelihood that Carter and/or Woodward were involved in criminal act. GC believes she would be unable to provide competent and diligent representation to all three parties.
300
Why didn’t the joint defense privilege apply in the U.S. v. Bay State Ambulance case?
In this case, the parties had many interests in common and much of the info shared would fall under the joint defense privilege. However, the outline in question does not fall into this category because it was not prepared as part of the joint defense - it was prepared after Bay State’s in house counsel requested documentation of the hours Felci worked for Bay State.
300
Which one of us grew up next to famous rapper, Lil’ John?
Frannie
400
Muchman & Foster represented a consortium of drug manufacturers suing the Obama administration in 2011 for FDA vaccine safety regulations. Merck was a member of the consortium. In 2017, Sally suffered injuries allegedly stemming from use of Merck’s HPV vaccine, Gardasil. She hired M&F in a suit against Merck. Merck had provided confidential information to M&F about Gardasil testing in the initial representation, but it wasn’t used in Sally’s suit. Conflict? Based on what case?
Yes. See Kerr-McGee.
400
An attorney represents two plaintiffs jointly. The defendant proposed an attractive settlement term with one party on a condition that the lawyer cannot help the other plaintiff with the information he already collected. What should the lawyer do?
Probably reject the settlement.
400
At what point does the GC definitely need to drop Carter as a client?
Per Rule 1.13 - “Once corporate crime is discovered”... at that point, the “representation is prohibited” because “under the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. (Rule 1.1 (competence) and Rule 1.3 (diligence))
400
What is the Carey & Danis case about?
Carey and Danis defended Chrysler against product liability and consumer class action cases brought against it while attorneys at Thompson & Mitchell. They left the firm, started their own, and then brought a class action product liability lawsuit against Chrysler which they used to defend at the prior law firm.
400
Which one of us is the oldest?
Elan
500
Muchman & Foster’s Chicago office represented Firm A in securing zoning permits for a large commercial development in the Loop in 2008. In 2017, Firm B calls M&F’s Texas office and requests representation in a breach of contract case against Firm A involving failure to lease suburban Houston office space experiencing significant development delays. Conflict of interest? Why or why not?
Probably not since the new matter doesn’t appear substantially related to the first, but what could make it substantially related?
500
Employer and its supervisors agreed to be jointly represented as defendants in a sexual harassment case. The lawyer was told by the supervisor defendant that she intended to later part ways and sue the employer for her own sexual harassment case. Should the lawyer withdraw from the representing the supervisor? What else should he/she do?
Yes. Attorneys for the employer will have received confidential information from the supervisor, which it could then use to the supervisor's detriment in the subsequent actions.
500
Is the memo from Carter to the COO privileged?
Probably not. There is no evidence that Carter was seeking legal advice from the COO or that the COO was operating in his capacity as a lawyer.
500
Did Carey and Danis violate conflict of interest rule 4-1.9 by bringing a class action lawsuit against Chrysler? Did they violate the confidentiality rule 4-8.4 by taking information about Chrysler with them once they left Thompson & Mitchell?
They did violate the conflict of interest rule. Although the lawsuits concerned different parts of the Chrysler vehicle than they defended Chrysler for in the past, they had access to information and defense strategy considerations were unavoidably linked. Can’t use the expertise developed at Chrysler to turn around and harm a former client They did not violate the confidentiality rule by taking information obtained while representing Chrysler to later prosecute Chrysler because the documents were public record or generic memos.
500
Which one of us plays the piano?
Shelisa