[13] A lawyer may be paid by a source other than the client, including a co-client, if the client is informed of this fact and agrees and the agreement does not affect the lawyer`s duty of loyalty or bliss to the client. See Article 1.8(f). If the acceptance of a payment from another source presents a significant risk that the lawyer`s representation of the client will be materially limited by the lawyer`s own interest in accommodating the person paying the lawyer`s fees or by the lawyer`s responsibilities to a payer who is also an associate client, the lawyer shall comply with the requirements of paragraph b, before accepting representation, including determining whether the conflict is likely to give consent and, if so, whether the client has adequate information about the significant risks of the representation. Even if the lawyer determines that he or she has previously represented a person in the same or substantially related matter, the new representation is acceptable unless the interests of the former client and the potential client are mutually opposite. The third step, then, is to determine how the careful representation of a new customer would affect the former customer`s interest in protecting confidential information. This is not always an unambiguous statement. (a) A lawyer may not represent counterparties in the same dispute. (b) In other situations and except to the extent permitted by point (c), a lawyer shall not represent a person if that person`s representation: [7] Directly unfavourable disputes may also arise in relation to the transaction. For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer not in the same transaction, but in another unrelated case, the lawyer would not be able to take over the representation without the informed consent of each client. Similarly, a lawyer cannot represent a person negotiating with another party if that party is also the client of a lawyer in an unrelated matter, since the parties would be directly opposed to each other.
[6] Unless the client concerned consents to representation under the restrictions and conditions set out in § 122 [with respect to the client`s consent to a conflict of interest], a lawyer may not represent a client if there is a significant risk that the lawyer`s representation of the client will be materially and negatively affected by the lawyer`s financial or other interests. Therefore, a lawyer should avoid any sexual relationship with a person with whom he or she has a pre-existing client-lawyer relationship. The risks to the lawyer – and the client – can be very serious. If the client is not satisfied with the relationship or representation, the lawyer may be subject to disciplinary action or a professional misconduct claim. Even if the relationship and representation are successful, the client`s ex-spouse or partner may sue or mourn the lawyer. And the fact that a lawyer has had sex with the client will almost always make any professional misconduct much more difficult. Restatement indicates a conflict of interest if: [10] The lawyer`s own interests must not prejudice a client`s representation. For example, if the honesty of a lawyer`s conduct is seriously questioned in a transaction, it may be difficult, if not impossible, for the lawyer to advise a client remotely.
If a lawyer has conversations about possible employment with an opponent of the lawyer`s client or with a law firm representing the opponent, such conversations could significantly limit the lawyer`s representation of the client. In addition, a lawyer may not allow related business interests to influence representation, for example, by referring clients to a company in which he or she has an undisclosed financial interest. See Rule 1.8 for specific rules relating to a number of personal conflicts of interest, including commercial transactions with customers. See also Rule 1.10 (personal conflicts of interest under Rule 1.7 are not normally attributed to other lawyers in a law firm). Sometimes it is more difficult to determine if there is direct adversity in a situation. For example, a lawyer may be asked to represent two defendants involved in a legal dispute, which is generally permitted. However, if the defendants have claims against each other, this may prevent the lawyer from accepting representation. In addition, the representation of members of the same family or business organization may be restricted due to claims that individuals may have against each other. An experienced lawyer should be able to assess a situation and determine whether a conflict of interest currently exists or may arise in the future so that he or she can act accordingly. The rationale for paragraph 1.8(c) of the CPP and section 127 of the Reformatement is that “a client`s valuable gift to a lawyer gives rise to a suspicion that the lawyer has exercised undue or undue influence.” Reformulation § 127 cmt.
b. Comment b on article 127 of Reformatement states somewhat ironically that “it would be difficult to reach a different conclusion if a lawyer requested the gift”. Gifts in wills are particularly worrisome because clients are often elderly and weak when the lawyer writes the will; Older clients may be particularly sensitive to even modest influence from the lawyer or others, and it is difficult to determine the client`s true intentions after the client`s death. Id.; see also In re Polevoy, 980 pp.2d 985, 987-88 (Colo. 1999) (“Conflict of interest, the inability of a lawyer to testify due to a settlement with the deceased, the possible danger of the will if his admission to the estate is contested, the possible harm caused to other beneficiaries and the undermining of public confidence in the integrity of the legal profession are just some of the dangers that the lawyer must take into account.”); State vs. Horan, 123 N.W.2d 488, 490 (Wis. 1963) (citation omitted); see R.E. General. Barber, Annotation, “Drawing Will or Deed, Under He Figures as Grantee, Legatee, or Devisee as Grounds of Disciplinary Action Against Attorney,” 98 A.L.R.2d 1234 (1964). It should be noted that the reformulation § 127 extends the principles of Colorado CPP 1.8(c) if a lawyer is related to the donor client. Even if a lawyer is a natural object of the client`s affection, when the lawyer designs the instrument, the gift must not be disproportionate to gifts to other relatives that are also related to the donor.
Reformulation § 127. The reason for this rule is that a disproportionate gift to the lawyer`s relative gives rise to suspicions of undue influence and excessive stretching; The lawyer then bears the burden of proof that he has not unduly influenced the client. Reformulation § 127 cmt. e. A conflict may also arise because of the lawyer`s personal interests, such as the example offered in the comments on the model rules of a lawyer who cannot effectively represent a particular client due to strong political convictions. [30] However, personal conflicts are not attributed to fellow lawyers in a law firm. [31] Even if the conflict of interest is due to the interests of an employee of a law firm who is not a lawyer, such as a paralegal or a legal secretary, this conflict is not imputed to the company-wide. [32] [27] For example, conflict issues may arise in estate planning and administration. A lawyer may be called in to prepare wills for multiple family members, such as husband and wife, and depending on the circumstances, there may be a conflict of interest. In the administration of the estate, the identity of the client may not be clear under the law of a particular jurisdiction. According to one view, the client is the trustee; From another perspective, the client is the estate or trust, including its beneficiaries.
In order to comply with the conflict of interest rules, the lawyer should clearly indicate his or her relationship with the parties involved. Just as obligations to a former client can significantly limit a lawyer`s ability to fulfill his or her obligations of loyalty and independent judgment, representing a new client can undermine the lawyer`s duty of confidentiality to a former client. [20] Why this distinction? The distinction recognizes that some things are not recognizable. A lawyer could have a blatant conflict of interest while achieving a satisfactory outcome for all clients. But while clients may be satisfied with the outcome despite the lawyer`s conflict, clients generally cannot know what the outcome would have been without the lawyer`s conflict.