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Legal Ethics & Professional Responsibility Chs. 5 & 6

Horizontales
Model Rule of Professional Conduct 1.7, ___ of Interest: Current Clients, provides that a lawyer shall not represent a client where there is concurrent ___ of interest. A concurrent ___ of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. Rule 1.7 goes on to provide that a lawyer may represent a client where there is a concurrent ___ of interest only if: "(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing." (Identifying and explaining conflicts of interest found in a hypothetical would be good essay question.)
One of the common types of conflicts of interest that attorneys need to protect against is a conflict between present and ___ clients. Model Rule of Professional Conduct 1.9(a) states, “[a] lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client’s interests are materially adverse to the interests of the ___ client unless the ___ client gives informed consent confirmed in writing.”
If an organization is engaging in illegal activity and the highest executive does not stop the activity on the attorney's advice, the organization's attorney can be a whistle-blower and inform outsiders only if the breach of confidentiality is permissible under 1.6(b)(2) and (3), to prevent, mitigate or rectify the client’s crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services. But even if Rule 1.6 allows the disclosure of client info, Rule 1.7 does not allow the conflict of interest and the lawyer would need to resign or otherwise ___ from representation.
Model Rule of Professional Conduct 1.0(e) defines "informed consent" as the agreement by a person to a proposed course of conduct after the lawyer ___communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
The following are all examples of attorney ___: Billboard describing legal services for individuals seeking a divorce; Business card provided upon request; Announcing a lawyer’s new promotion via social media; Law blog explaining legal concepts and terminology concerning criminal defense.
Some jurisdictions have record-keeping requirements for attorney advertising and for attorneys' written solicitations, requiring law firms to ___ copies of their ads or written solicitation (including electronic/internet) for a specified period of time.
Model Rule 1.8(b) provides that “a lawyer shall not use information relating to representation of a client to the ___ of the client unless the client gives informed consent, except as permitted or required by these Rules.”
Attorneys may state that they practice in a particular area of law, or that they limit their practice, or practice exclusively, in a particular area of law. In most jurisdictions attorneys may not, however, say that they “___” in a particular area of law unless they have actually been certified in a particular area and specify what organization has done the certification, for example an appropriate state authority or the America Bar Association.
One of the common types of conflicts of interest that attorneys need to protect against is a conflict caused by the lawyer's ___ interest. Model Rule of Professional Conduct 1.7(a)(2) provides “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if…there is a significant risk that the representation of one or more clients will be materially limited by…a personal interest of the lawyer.” Personal interests that may materially limit the lawyer’s representation of the client: financial interests, business interests, and personal interests.
If one lawyer at a firm is prevented from representing a client because of an incurable conflict of interest, then no one at the firm can represent the client. This ___ impacts the affected attorney’s colleagues. ___ is based upon the presumption of shared confidences, that all lawyers in the firm have access to, and share in, all of the firm’s clients’ confidential information, and the need to avoid the appearance of impropriety.
The following are all examples of attorney ___: Unsolicited letter asking if the recipient would like to meet to discuss whether they should consider filing for divorce; Business cards sent to victims of a recent fire; Unsolicited message to a Facebook “Friend” asking if they need legal services for pending matter; Calling a criminal defendant’s brother to inquire if the defendant is seeking legal representation.
The general prohibition in Model Rule 1.7 against representation limited by the attorney's personal interest would prohibit ___ relationships between an attorney and their client. Rule 1.8(J) also specifically prohibits such relationships, providing “a lawyer shall not have ___ relations with a client unless a consensual ___ relationship existed between them when the client-lawyer relationship commenced.”
Attorney advertising is regulated at the state level. Restrictions on attorney advertising ___ greatly based on jurisdiction. For example, some jurisdictions place limits on what may be presented in a televised commercial, such as prohibiting testimonials, actors, and endorsements (California, Louisiana, Oregon, Virginia, Wisconsin, and Wyoming). Some jurisdictions prohibit music in attorney ads. A few jurisdictions require review and preapproval of TV ads.
Although token and holiday gifts from a client to an attorney are ok, Model Rule 1.8(c) prohibits an attorney from soliciting "any ___ gift from a client, including a testamentary gift," or preparing "on behalf of a client an instrument giving the lawyer or a person related to the lawyer any ___ gift unless the lawyer or other recipient of the gift is related to the client."
Under Model Rule of Professional Conduct 1.8(h) an attorney shall not (1) make an agreement prospectively limiting the lawyer's ___ to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such ___ with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
Many states allow attorneys to send written solicitation letters to clients, but restrict attorneys from doing so in cases of personal ___ or wrongful death for a set period of time, for example 30 days. In Florida Bar v. Went for It, Inc. (1995) the U.S. Supreme Court held that such restrictions do not violate the Constitution.
The U.S. Supreme Court upheld state laws that prohibited most lawyer advertising for most of the 20th Century. Then the Supreme Court then changed its position in ___ v. State Bar of Arizona (1977), holding that lawyers had a First Amendment right to truthfully advertise certain kinds of standardized information about their legal services. Following that decision, states could not prohibit all forms of attorney advertising.
A few jurisdictions still retain the requirement that lawyer advertisements be “___”, although most recognize an enforceability problem with this vague and subjective term.
Model Rule of Professional Conduct 1.8(g) “A lawyer who represents two or more clients shall not participate in making an ___ settlement of the claims of or against the clients, or in a criminal case an ___ agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.”
In Nasdaq, Inc. v. Miami Int’l Holdings, Inc., the court held that a limited-scope engagement agreement does not ___ the conflict/potential prejudice to a Plaintiff where a law firm participating as counsel for Defendant previously represented plaintiff in related litigation.
Verticales
One of the common conflicts of interest that must be avoided is ___ representation, where one lawyer is representing both the plaintiff and the defendant.
Model Rule of Professional Conduct 1.8(f) allows an attorney to accept compensation for representing a client from someone ___ than the client only where "(1)  the client gives informed consent; (2)  there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3)  information relating to representation of a client is protected as required by Rule 1.6." The attorney's loyalty, fiduciary duty, remains in this situation with the client, not with the ___ person paying the legal bill.
Model Rule 1.8 prohibits a lawyer from entering into a business transaction ___ a client unless: "(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2)  the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3)  the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.”
One of the common types of conflicts of interest that attorneys need to protect against is simultaneous representation of clients in different, but ___, matters. This type of conflict can arise when a lawyer represents two clients who are in different lawsuits that involve a ___ issue or antagonistic positions.
Pursuant to Model Rule of Professional Conduct 1.7(b), two clients suing each other may not ___ the conflict of interest and use the same lawyer, not even with informed consent.
There are three kinds of misleading information to be avoided in attorney advertising: fraudulent information, ___ implications, and ___ comparisons.
One of the common types of conflicts of interest that attorneys need to protect against involves ___ representation, where two clients on the "same side" in litigation use the same lawyer. Even where clients appear to have the same interests in a case, conflicts can arise. ___ interests might diverge as discovery yields more information. The clients must be warned of this potential and the attorney must be vigilant. There are several types of this particular kind of conflict, ___ representation in criminal cases, ___ representation in civil cases, and ___ representation in non-litigation situations.
Under Model Rule 1.13(a) “A lawyer employed or retained by an ___ represents the ___ acting through its duly authorized constituents.” So the lawyer’s duty of loyalty is owed to the ___. When the interests of the officers or other ___'s constituents and the interests of the ___ are in conflict, the lawyer must protect the interests of the ___. The lawyer must also explain to the constituents that the ___ is the client, and not themselves.
Model Rule of Professional Conduct 1.9(a) states, “[a] lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client’s interests are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing.” A legal matter is considered to be substantially related if the lawyer learned ___ information about a former client that could be at issue in the subsequent proceeding.
Model Rule of Professional Conduct 7.1 (identical to Indiana’s 7.1) provides: Communications Concerning a Lawyer's Services: “A lawyer shall not make a false or ___ communication about the lawyer or the lawyer's services. A communication is false or ___ if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially ___.”
Under Model Rule 1.10 governing imputed disqualification of formerly associated lawyers, conflicts can also be imputed to a ___ office because of an attorney who used to work at the firm. A ___ firm can represent a client whose interests are adverse to another client who was represented by a lawyer who used to work at that firm ONLY IF 1) the matters are not the same or substantially related to the matter with which the firm’s former lawyer was connected, or 2) if the matter is the same or substantially related, there can be no remaining lawyer in the firm who has any confidential information about the matter in question, or with informed consent if such consent would be allowed under Rule 1.7.
Internal mechanisms for ___ screening an attorney include: (1) the lawyer is prevented from having any involvement in the controversial case; (2) the lawyer is prevented from having any access to the files of the case; (3) the lawyer declares under oath that he or she did not, nor will not, disclose any information of the former client to any other lawyer in the firm; and (4) the lawyer is prevented from sharing in the fees from the case.
The primary difference between advertising (generally allowed, with some exceptions) and solicitation (generally not allowed, with some exceptions) is that advertising targets large groups of potential customers/clients generally, while solicitation targets people ___ or in small groups based on particular characteristics or experiences. (Identifying and explaining unethical advertising or solicitation issues found in a hypothetical would be good essay question.)
An attorney may provide their client ___ help only under very specific circumstances, such as advancing costs of the litigation, though recent changes to Model Rule 1.8 (e) have approved humanitarian ___ help to indigent pro bono clients.
One solution to a conflict of interest involving formerly associated lawyers and paralegals, allowed in some jurisdictions, that would allow a firm to hire a new attorney or paralegal who used to represent a client at their prior firm whose interests are adverse to a client of that new, hiring firm, is the use of “___.” Under Model Rule 1.0(k) ___ denotes the isolation of a lawyer [or paralegal] from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer [or paralegal] is obligated to protect under these Rules or other law.
Tips to Avoid Conflicts of Interest include: 1) The client intake form needs to include questions concerning other lawsuits in which the prospective client may have been involved. 2) Conflict-checking systems should be in place to identify categories of the firm’s former and present clients, including protected persons connected to the clients, such as spouses or business partners, to see if any adverse representation conflicts are involved.
The strictest application of the antisolicitation rules is on ___, in-person solicitation. Attorneys also may not use paralegals or other third parties to engage in ___, in-person solicitation that the ethical rules disallow them from engaging in themselves.
Elements of an Effective ___ Screen: 1. The screen is put in place at the time the tainted ___ moves to the new firm 2. The ___ signs an affidavit declaring that they will have no involvement in the case that is the subject of the conflict controversy and that no information from the former firm’s client has been, or will be, disclosed to anyone at the new firm 3. The new firm physically separates the ___ from the lawyer(s) working on the affected case 4. The new firm instructs all members, particularly those working on the case, not to discuss the affected case with the ___ 5. A memo is sent to all members of the firm confirming the screening instructions 6. A letter is sent to the ___’s former firm, informing it of the screening measures that are in place to protect against any breech of confidentiality.
If a corporate lawyer believes that representatives of the organization that the attorney represents are acting illegally, the lawyer must inform the ___ executive of the organization.
If an attorney is requested by two current clients to represent them in litigation against each other, the attorney must decline ___ requests. If an attorney becomes aware that the representation of one existing client will cause a direct conflict with another existing client, the attorney must withdraw from ___.
Model Rule 1.8(d) prohibits an attorney from acquiring literary or ___ rights to a client’s story while the attorney still represents the client.