Lawyer Disqualification: Conflicts of Interest and other Biases

Running Time: 1 Hour 30 Minutes Recorded date: 1/8/2008

I. INTRODUCTION TO CONFLICTS AND DISQUALIFICATION

• California Rules of Professional Conduct
• ABA Model Rules of Professional Conduct
• The Rules Governing Lawyer Conduct -- CRPC/RPC
  • California's Conflict of Interest Rules and Rules of Professional Conduct
  • ABA Model Rules of Professional Conduct
  • The Three Ironies
  • California Rule of Professional Conduct 3-310: "Avoiding the Representation of Adverse Interests"

II. POSSIBLE CONSEQUENCES OF CONFLICTS OF INTEREST, INCLUDING DISQUALIFICATION

• Disgorgement Malpractice Lawsuit: "The Number One Basis for Legal Malpractice Cases in the U.S. today is Conflicts of Interest."
• Transactional lawyers are not immune. An injunction action can be brought to enjoin conflicted representation.

III DISQUALIFICATION FOR CONFLICTS OF INTEREST

• Introduction to Disqualification: "Every judge in California is totally conversant in disqualification motions. They happen every day."
• Hot topic: Inadvertent receipt of non-client confidential information, e,.g., by fax.
• Unauthorized Contact with a Represented Party, CRPC Rule 2-100).
• Practice tips regarding corporate clients.
• Advocate Witness Rule (Rule 5-210)
• Appearance of Impropriety
• Disqualification for Conflicts of Interest

IV. DISQUALIFICATION MOTIONS IN MULTIPLE PRACTICE AREAS:

• "Conflicts of Interest are Across the Board." Although disqualification motions are active case actions, limited to litigated proceedings, injunction actions can be brought.
• "The vast majority of Disqualification Motions are brought for tactical reasons."
• Personal Injury Cases: Alignment of client and law firm interests in settlement talks.
• What is a Conflict of Interest?
• Defining the Term "Conflict of Interest:" No way to define: Fact-specific
• Multiple representation (Entertainment Law example)
• Criminal Law example
• Concurrent representation: Conflicts between current clients
• "Duty of Loyalty and Fidelity" standard for lawyers.

V. MOTIONS TO DISQUALIFY FILED BY FORMER CLIENTS

• "The most common basis for disqualification motions."
• Development of the Substantial Relationship Test
• Test: confidential information: presumed confidential unless proven otherwise.
• The Substantial Relationship Test in Federal Court (And Other Jurisdictions)
• The Substantial Relationship Test in California: Requirement That Challenged
  • Lawyer Had Access to Client Confidences

VI. DEFENSES TO DISQUALIFICATION MOTIONS

• Lack of Standing to Seek Disqualification Conflict Waivers: "Better than Nothing.": Not in Ethical Rules
• Client Consent to Conflicted Representation: Issues involved and practice tips.
• Attacking a waiver

VII. "VICARIOUS OR IMPUTED DISQUALIFICATION"

• Original Rule: Presumption of shared confidences
  • Rebuttable and Irrebuttable Presumptions
  • Rebutting the Presumption of Shared Confidences
• Permissibility of Screening (Ethical Walls," Firewalls)
• Cone of Silence
• Determining Whether a Screen Is Effective "No California Court has ever said "a wall allows adverse representation" (cf. 9th Circuit)

As speaker Richard E. Flamm states, "the Number One basis for legal malpractice cases in the U.S. is conflicts of interest; and every judge is totally conversant in disqualification motions. They happen every day." Mr. Flamm discusses the Rules governing conflicts of interest (including California and ABA ), the possible severe consequences of conflicts of interest, disqualification for conflicts of interest in numerous practice areas, motions to disqualify by former clients, defenses to motions and vicarious disqualification.