Conflicts of Interest | My Assignment Tutor -

Questions: In your opinion, how would attorneys conduct themselves if there were no rules of professional conduct that cover “Conflicts of Interest”? Explain. Use examples in your explanation.What are three (3) things you learned about “ Conflicts of Interest” from reading my Lecture and Chapter 5 that you did not know before? Explain in detail.Choose any three (3) of the websites I posted in the Unit or in my Lecture and explain what you learned from visiting them. Unit 4 LectureUnit 4 Lecture Topic: Conflicts of Interest Reading from our Textbook: Chapter 5 Course Design Note: if you need a quick reminder about this, not a problem… review the beginning of either Unit 1 or Unit 2. Lecture Disloyalty: Anyone remember when Katie Curic switched over from NBC’s Morning Show to do the CBS Evening News? The ex-Governator, oops I mean The Terminator, suddenly went from being the bad guy in Terminator 1 to being the good guy in Terminator 2 (and 3) To use a sports analogy, most everyone remembers when their favorite sports hero showed up on “the other team” (for twice the money, of course, except: less-money-LeBron in July 2014). All of this, drawn from “real life”, has its profound shocks and heartfelt disappointments, not to mention clear and compelling dramatic (and financial, but not to you) value… but in the practice of Law, disloyalty has consequences and its own Rule: Conflicts of Interest. First things First Sidebar: Whenever you start at a new Law Firm or in-house Corporate Legal Department, or if you start your own practice with your own clients, the first thing that is done (even before signing up for the dental plan) is something called a “Conflicts Check” – have you ever represented clients on the opposite side of any issues being handled by the new place or involving the new client.? It doesn’t automatically stop everything dead-in-its-tracks, but there are required practices and procedures that must be followed. This is what we are learning about in this Unit. The Origin of the Concept Loyalty, which is the essence of the Rule against Conflicts, is an offshoot of Confidentiality (see Unit 3). Another element of the conceptual underpinning is adverse interests – that is, parties in a dispute usually want things to go their way, otherwise there would be no dispute; so, representing opposing sides does not seem the way to go (especially if either side believes they have an advantage because of something the other side does not know). Note: our textbook specifies that attorney-arbitrators are not subject to this Rule; the reason is obvious: they do not represent either side, plus both sides have to agree to the appointment of the arbitrator The Range of Coverage This Rule casts a wide net to include imputed and vicarious conflicts “Vicarious”? If you’re having trouble with this concept, think of a “wannabee”. Or as my (as they then were) teenagers used to taunt each other with, “As if”. Sidebar: A slight diversion… it doesn’t apply to Law practice, but it IS quite remarkable in the “As If” category. Have a look at: http://www.secondlife.com The term “vicarious” also comes up in what is called the “Law of Master and Servant” (Employment Law) – the acts of employees, as long as they are within the scope of their employment, bind (or are imputed) to the employer, the result is that liability is fixed vicariously on the employer. In a Law firm the Conflicts of one member of the firm can be imputed to the others. Conflicts “Lightning Round” Question: Can Katie Curic do the CBS Evening News and then “limo-over” and do the NBC Evening News? Answer: It’s up to them. Question: What about a lawyer working for both sides? Answer: It depends… oh no, not again, you might say – but it is important to accept the fact that the Law is not rigid, nor is it always uniform State-to-State. The Rule in Arkansas: http://courts.state.ar.us/rules/current_ark_prof_conduct/client_lawyer_relationship/profcond1_8.cfm The ABA Rule: www.abanet.org/cpr/mrpc/rule_1_7.html Litigated vs. Non-litigated Matters (If you haven’t taken LAW 101, 203, or BUS 204, “litigation” means a lawsuit between parties that could end up in a trial. Our textbook also refers to criminal trails but that’s not the usual context of the word.) In practice, in litigated matters, especially divorces, I have seen many variations. Once the Rule has been taken into account, the attitude is Consent governs the circumstances; on the other hand, I have known lawyers, myself included, who refuse to represent both parties to a dissolution (the legal word for “divorce”). Non-litigated matters include transactions. It is a Conflict to, for example, represent a borrower and a lender in a mortgage transaction. Miscellaneous, but equally important I’m sure you’ve seen the TV ads (more on this in Unit 5) where attorneys (or paid actors) say, “No fee unless you win!” That’s correct. But what about Costs? (like filing fees; fees to the process server) The short answer: The client usually pays… up front (so it’s not the free-ride that appears to be depicted) – unless (in rare cases and in some States) the client is indigent. Contingency Fees “contingency”: meaning it might happen, or it might not. If an attorney is not supposed to share Costs with a client and is not supposed to share fees with a nonlawyer, then how is that an attorney can take (that is, have the client agree that the attorney will take) a percentage of the judgment or the settlement? Another short answer: because the Rules say it is acceptable. The ABA Rule: www.abanet.org/cpr/mrpc/rule_1_5.html LAW 440 “Quotable Quote”: “We have a duty of loyalty that requires us to protect our past and present clients.” Debra K. Orlik, Ethics for the Legal Professional, (6th ed.) Prentice Hall, Upper Saddle River, New Jersey, 2008, p. 124 Item Unit 4 WebsitesUnit 4 Websites The bigger the firm the greater the potential for Conflicts This is the homepage of Morgan Lewis; be sure to spend some time slowly and carefully exploring the law firm and thinking about the size of client base in relation to the “conflicts” issue raised in this Unit. Networking, Joining and the risk of Conflicts This site shows the vast opportunities there are for networking, and the attenuate risks this entails, as discussed in this Unit. Conflicts of interest pose a huge problem for large law firms, as the potential for conflicts is significant especially in today’s modern legal world where law firms have multiple offices in multiple states, countries even, law firms merge, and lawyers often jump from one firm to the next bringing with them their own docket of cases and clients. Because of imputed conflicts, one person’s conflict of interest is applied to the entire firm, all of its lawyers, and even paralegals conflicts may subject a firm to disqualification. One of the tools firms use today to avoid this issue is ” advance waivers of conflicts of interest” where a client consents to the law firm’s representation despite the conflicts. Advance waivers of conflicts of interest are not prohibited by the Rules of Professional Conduct. Such waivers, however, must have certain, essential requirements to be enforceable. But can a law firm rely upon this waiver? Can a lawyer avoid the stringent requirements of the ethics rules demanding loyalty and confidentiality with a simple signed consent? Read the attached legal opinion by the District of Columbia bar on “Advance Waivers of Conflict of Interest.” Would you be comfortable representing and counseling a client knowing your law firm previously represented his competitor, even if the client signed a consent? What problems do you see with”Advance Waivers” and the ethical practice of law? The District of Columbia Ethics Committee was asked whether a client who waived a conflict of interest may subsequently withdraw that consent, and if so, what effect does this have on the attorney who undertook the representation? What process should be followed, then, when a current client changes its mind about a previously granted waiver of his lawyer’s conflict of interest? What is the KEY factor that will affect the allowable attorney’s course of action? Please read the attached link and revisit your opinion on whether or not you would feel ethically comfortable representing a client who signed an “Advance Waiver of Conflicts.” As you all may know, I am an attorney in private practice and I specialize in elder law. Below, I set forth a scenario which is all to common in my field of practice, and requires that I tread lightly upon the ethical mine fields it poses: You have represented a client for years. You have assisted him with the buying and selling houses, you have drafted his Last Will and Testament, you have negotiated contracts for his business, you have represented him in various legal matters throughout his lifetime. You are the trusted legal resource for this client, and his family has come to rely upon you for your expertise and counsel. You are contacted by your client’s daughter. She is frantic. “Dad is having memory problems. He forgot to pay his taxes. The marshal came with a tax auction notice last week. Dad took the notice and said he’s not going to pay the government any more taxes and threw it away. He took the car the other day to go to work, but he’s been retired for 10 years. He tried to go to the fishing cabin at the lake last month, but he got lost and thankfully, some other motorists helped him find his way back home. The doctor said Dad should not be driving because of his dementia. I’ve checked Dad’s bank statements. It seems thousands of dollars are being withdrawn. I don’t know where these monies are going and he won’t tell me. I think I should be appointed as conservator for Dad. Can you please help?” Do you see a potential for conflict of interest here? You contact your client. He sounds wonderful on the telephone and he tells you he is enjoying the weather, he has been going up to the cabin and fishing every weekend, and doctor says he is in perfect health. You mention to your client that his daughter called you and told you she has some concerns about him, and you wanted to check in with him to see if there is anything you can do to help. Your client tells you he is perfectly capable of handling his own affairs. He tells you his daughter is meddling in his business. He tells you that he can give his money to anyone he wants. (And by the way, he mentions that he was notified that he has won a lottery in Jamaica and once he wires them $10,000.00, they will send him millions of dollars.) He tells you he can drive where ever he wants and does not have to answer to anyone. He tells you that he is disgusted with the government because it is a criminal conspiracy to bankrupt the elderly and he refuses to be taxed without representation. He refuses any assistance and will not agree to a voluntary conservatorship. He does not want you to disclose any of his personal business to his daughter. What are your ethical and legal obligations in this scenario? See the attached opinion by Linda Bauer, Assistant Bar Counsel in the State of Massachusetts and find out what the bar requires of attorneys in these very common situations. International Section: the slow boat to China