Conflicts of Interest
The conflicts domain separates candidates who can name a rule from those who can apply it. Expect fact patterns involving two current clients, a former client, or a personal interest, and expect to be asked not only whether a conflict exists but who must consent, in what form, and whether consent can cure it at all.
Current clients: Rule 1.7
A concurrent conflict exists if the representation will be directly adverse to another client, or if there is a significant risk that it will be materially limited by responsibilities to another client, a former client, a third person, or the lawyer's own interests. Direct adversity counts even in unrelated matters. Cure under Rule 1.7(b) requires four things: the lawyer reasonably believes competent and diligent representation is possible; the representation is not prohibited by law; it does not involve asserting a claim by one client against another in the same litigation; and each affected client gives informed consent, confirmed in writing.
Former and prospective clients
Rule 1.9(a) bars representation in the same or a substantially related matter in which the new client's interests are materially adverse to a former client without informed written consent. Rule 1.9(c) bars using or revealing former-client information to that client's disadvantage. Rule 1.18 protects prospective clients; if the lawyer received information significantly harmful to that person, representation is barred, though the Model Rule permits screening in some settings. Rule 1.10 imputes conflicts to the entire firm; the Model Rule version permits screening a personally disqualified lateral lawyer with prompt written notice, but many jurisdictions do not.
Specific transactions: Rule 1.8
Business transactions with a client require terms fair and reasonable to the client, written disclosure of the terms, written advice to seek independent counsel, and written informed consent. Related provisions govern using client information to the client's disadvantage, gifts, media rights, advancing litigation costs, third-party payors, aggregate settlements, and sexual relations.
Worked example
Firm A represents Landlord in a lease dispute and is asked to represent Tenant in an unrelated car-accident case. The matters are unrelated, but the representation is directly adverse to an existing client, so Rule 1.7(a)(1) applies. Cure requires informed written consent from both Landlord and Tenant after disclosure of material risks. If Landlord refuses, the firm must decline the Tenant matter; 'the matters are unrelated' is not a defense.
Traps
- Applying the substantially-related test to current clients; that is the former-client test.
- Believing written consent cures everything; 1.7(b)(3) and prohibited transactions cannot be consented to.
- Dropping a client to convert a current-client conflict into a former-client one.
- Overlooking personal-interest conflicts and conflicts from the lawyer's own business.