Conflicts in Wonderland - Oregon State Bar · Conflicts in Wonderland ii. CONFLICTS IN WONDERLAND....

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Tuesday, December 20, 2016 Noon–1 p.m. 1 Ethics credit Conflicts in Wonderland

Transcript of Conflicts in Wonderland - Oregon State Bar · Conflicts in Wonderland ii. CONFLICTS IN WONDERLAND....

Tuesday, December 20, 2016 Noon–1 p.m.

1 Ethics credit

Conflicts in Wonderland

Conflicts in Wonderland ii

CONFLICTS IN WONDERLAND

The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials.

Copyright © 2016

OREGON STATE BAR16037 SW Upper Boones Ferry Road

P.O. Box 231935Tigard, OR 97281-1935

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TABLE OF CONTENTS

Faculty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Amber Hollister, “A Journey Down the Rabbit Hole: Conflicts Analysis,” Oregon State Bar Bulletin, August/September 2015. Reprinted with permission. . . . . . . . . . . . . . . . . . . . . . . 1

Presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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FACULTY

Amber Hollister, Oregon State Bar, Tigard. Ms. Hollister is the Oregon State Bar’s general counsel. In her role, she regularly provides prospective ethics guidance to lawyers and serves as in-house counsel for the bar. Prior to working for the Oregon State Bar, Ms. Hollister served as deputy general counsel to Governor Ted Kulongoski and worked at Perkins Coie LLP in Portland. She clerked for U.S. District Court Judge Robert H. Whaley. Ms. Hollister serves on the Oregon Women Lawyers Board of Directors, the Multnomah Bar Association Board of Directors, and the Multnomah Bar Foundation Board of Directors.

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Amber Hollister, General Counsel, Oregon State Bar

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1. Client Intakes & Conflict Checks

2. Prospective Client Conflicts

3. Client Identification

4. Current Client Conflicts

5. Identifying Former Clients

6. Former Client Conflicts

7. Self-Interest Conflicts

8. Waiving Conflicts

9. Obtaining Informed Consent

10. Help!

George Harrison, “Any Road,” paraphrasing an exchange between Alice and the Cheshire Cat in chapter 6 of Alice’s Adventures in Wonderland

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Intake Systems

Definition of “Knowledge”

Your Great Memory

Lewis Carroll, Alice's Adventures in Wonderland

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Prospective Clients, Rule 1.18

What is a “consultation”?

Prospective Client Conflicts, Rule 1.18(c) Adversity? Same or Substantially Similar? Received Significantly Harmful

Information?

Exceptions, Rule 1.18(d) Screening Informed Consent

Lewis Carroll, Alice's Adventures in Wonderland

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Have you formed an attorney-client relationship?

Reasonable Expectations Test In re Weidner

Entity clients? RPC 1.13

Lewis Carroll, Alice's Adventures in Wonderland

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How do you know if a client is a former client?

What if no current matters but you periodically communicate? Keep a retainer? Send updates of the law?

Has attorney-client relationship ended? In re Weidner

What does your conflict check system reflect? Is it consistent with your analysis?

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What is direct adversity between current clients? RPC 1.7(a)(1)

Could be on unrelated matters

Litigation or transactional practices

Not just parties (e.g. could be a client who is an adverse witness)

What if clients are part of the same entity?

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Would new client be materially adverse to former client on same or substantially similar matter? RPC 1.9(a)

Would you rely on or use confidential information learned in the prior representation? RPC 1.9(c)

What if your former client is deceased?

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Is there a significant risk your personal interest will materially limit the representation of client? RPC 1.7(a)(2)

What are the risks? Malpractice, Bar Discipline

What is at stake? Money, career, reputation, mental

health

What’s your reaction to the situation?

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All former client conflicts are waivable, RPC 1.9

Prospective client conflicts are always waivable, RPC 1.18

Not all current client conflicts are waivable, RPC 1.7(b) Not illegal Reasonably believe you can provide

competent, diligent representation No obligated to contend something on

behalf of one client obligated to oppose on behalf of another

Many “special” conflicts are not waivable, RPC 1.8

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“Informed consent, confirmed in writing” is a term of art, see RPC 1.0(g), RPC 1.0(b)

“Agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the materials risks of and reasonable available alternatives to the proposed course of conduct”

Requires a writing and recommendation to seek independent legal advice

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General Counsel Ethics Hotline

OSB Ethics Home Page @ www.osbar.org/ethics

Bar Books, The Ethical Oregon Lawyer

NLMP Mentors (Thank you mentors!)

Amber HollisterGeneral CounselOregon State [email protected]

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