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3 Series ABOUT THE BOOKLET AND THE SERIES THE BOOKLET MLM's Avoiding ConÀicts of Interest Booklet is based on "best practices" comprised of a compilation of information by ethics and malpractice experts over the years. Their work has been modi ed into tips, checklists, and examples to provide attorneys with simple-to-use guidance. Technical Editor & Advisor: Michelle M. Lore, Claim Attor ney Michelle M. Lore, J.D., joined Minnesota Lawyers Mutual as a claim attorney on March 23, Before joining MLM, Michelle spent 11 years as an associate editor for Minnesota Lawyer, a publication that serves the state's legal community. Prior to joining Minnesota Lawyer, she was an attorney in private practice. From and again from , Ms. Lore was employed with the Twin Cities rm of Horton and Associates, where she litigated employment discrimination claims. From late 1997 through much of 1998, Ms. Lore worked for Colosimo Patchin Aronson and Kearney in Virginia, MN, defending personal injury matters, handling employment issues and defending a municipality against a condemnation claim. Ms. Lore attended William Mitchell College of Law in St. Paul, MN, and obtained her law degree in THE SERIES MLM's Law Practice Management Booklet Series assist lawyers in assessing, maintaining and enhancing their quality of services and reducing their risk of malpractice. To ensure quality, an editorial board of highly respected and authoritative leaders has been created. The editorial board inàuences the creation of the overall series, and provides advice and guidance on malpractice trends and what should be communicated on a range of issues. Ser ies Managing Editor: J ayne M. Harr is, Vice President Business Development Ser ies Creative Designer: Karen J. L. Scholtz, Business Development Coor dinator MLM's insureds may download some or all component parts in the series for the personal use appropriate to individual needs: File Retention Ethical Considerations & Malpractice Prevention in Client Communications Succession Planning and the Sale of Practice The Basics of Client Files and Paperless Of ce Systems Avoiding ConÀicts of Interest Disclaimer: This booklet includes techniques which are designed to minimize the likelihood of being sued for professional liability. The material presented does not establish, report, or create the standard of care for lawyers. The material is not a complete analysis of any of the topics covered and readers should conduct their own appropriate legal research. Nothing contained in this information is to be considered as a rendering of legal advice for speci c cases, and readers are responsible for obtaining such advice from their own legal counsel. This publication and any forms herein are intended for educational and informational purposes only and readers are always encouraged to make independent decisions based on their state law and ethics opinions. August 2012 Minnesota Lawyers Mutual Insurance Company. All Rights Reserved. Reprinted January No part of this publication may be transcribed, reproduced, stored in any retrieval system or translated into any language or computer language in any form or by any means, mechanical, electronic, magnetic, optical, chemical, manual or otherwise, without the prior written consent of Minnesota Lawyers Mutual. Minnesota Lawyers Mutual i

4 EDITORIAL BOARD Eric T. Cooperstein, Eric T. Cooperstein Ethics Consulting & Representation Mr. Cooperstein has a solo practice devoted to ethics consulting and representation, a product of his work as a former Senior Assistant Director of the Of ce of Lawyers Professional Responsibility, where he worked from 1995 to Mr. Cooperstein defends lawyers against ethics complaints, provides advice and expert opinions and represents lawyers in fee disputes and law rm break-ups. He is also a frequent writer and speaker on ethics and law practice issues. Mr. Cooperstein is chair of the Rules of Professional Conduct Committee for the Minnesota State Bar Association, a member of the Association of Professional Responsibility Lawyers, and served from 2007 to 2008 on the Supreme Court Advisory Committee to Review the Lawyer Discipline Process. Mr. Cooperstein joined the executive committee of the Hennepin County Bar Association in 2010 and will serve as its president in Linda J. Hay, Alholm, Monahan, Klauke, Hay & Oldenburg, LLC Ms. Hay is a shareholder in the rm of Alholm, Monahan, Klauke, Hay & Oldenburg, LLC. Ms. Hay actively defends professional liability cases. She has tried numerous cases to successful verdict and has also handled numerous appeals in this area. Ms. Hay regularly presents seminars on risk and claim management of professional liability cases and regularly publishes in the eld as well. Ms. Hay is a member of the Board of Directors of the Illinois Association of Defense Trial Counsel, and was editor-in-chief of the IDC Quarterly, the legal journal of the Illinois Defense Bar, in Charles E. Lundber g, Bassford Remele Mr. Lundberg has been a member of Bassford Remele for more than 30 years, practicing primarily as a lawyer s lawyer advising attorneys and law rms on matters involving legal malpractice, legal ethics and other areas of the law of lawyering. He served for 12 years on the Minnesota Lawyers Professional Responsibility Board, including six years as board chair. He also has been recognized as one of the leading appellate attorneys in Minnesota and elected as a Fellow in the American Academy of Appellate Lawyers an invitation-only group of outstanding lawyers whose practice focuses substantially on appeals. Mr. Lundberg has been named a Top 100 Super Lawyer; Top 10 Appellate Super Lawyer; and a Leading American Attorney; and one of the Best Lawyers in America in the elds of Appellate Law and Legal Malpractice Law. He also teaches a class in Legal Malpractice Law at the University of St. Thomas Law School. Vincent A. Thomas, Gustavus Adolphus College Mr. Thomas serves as a member of Minnesota Lawyers Mutual s Board of Directors. He previously served as a member of the Minnesota Lawyers Board of Professional Responsibility for eight years, the last four as vice-chair. Mr. Thomas practiced law for nine years at Briggs and Morgan in the areas of public nance and municipal law. He left Briggs and Morgan in 1995 to become the Assistant Dean of Students, and an Adjunct Professor of Law at Hamline University School of Law. He taught Professional Responsibility at Hamline from In 2006, Mr. Thomas joined the University of St. Thomas School of Law administration and served UST as assistant dean for Student and Multicultural Affairs and Adjunct Professor of Law for four years. Mr. Thomas currently serves as the Internship Program Director for Gustavus Adolphus College in St. Peter, Minnesota, and as a volunteer mentor at the Hamline University School of Law. ii

5 ABOUT MINNESOTA LAWYERS MUTUAL Founded in 1982 by members of the Minnesota State Bar Association, Minnesota Lawyers Mutual Insurance Company (MLM) provides professional liability insurance and risk management services for the legal community. MLM is committed to being an ef cient, accountable and permanent practice management resource, exempli ed by an AM Best rating of A- (excellent), and the payment of a policyholder dividend for each of the past 24 years. If you are searching for a stable provider of legal malpractice insurance and useful practice management information, Minnesota Lawyers Mutual is the resource you need. Visit our web site at or call us at (800) to learn more about Minnesota Lawyers Mutual. Our Point- Click-Insure online process makes purchasing a new or renewing a professional liability insurance policy easy. Minnesota Lawyers Mutual Board Members 2013 Steve Brady Chief Executive Of cer R. Bertram Greener Minneapolis, MN Chair John Bowden Minneapolis, MN David Buelt Omaha, NE Roger J. Fellows Brooklyn Park, MN Roger Frommelt Minneapolis, MN Andrea Geraghty Pittsburgh, PA Harold Goldner Blue Bell, PA Robert A. Guzy Coon Rapids, MN A. Patrick Leighton Inver Grove Heights, MN Ted Collins St. Paul, MN Elisabeth S. Reynoldson Osceola, IA Clinton Schroeder Minneapolis, MN David Stowman Detroit Lakes, MN Ronald Seeger Rochester, MN Vincent A. Thomas Minneapolis, MN Joan M. Hackel St. Paul, MN Minnesota Lawyers Mutual iii

6 PREFACE A Message from the CEO There are literally hundreds of books and articles covering just about every aspect of law practice management. So, why write another one? And, why should you read it? Minnesota Lawyers Mutual has been in the risk management business for 30 years and we ve seen plenty of wellplanned, well-crafted and wonderfully maintained risk management materials. Unfortunately, we've also "paid the price" in instances where an insured attorney simply wasn t familiar with a particular risk management concept or didn t know "where to go" to nd that information. So, Minnesota Lawyers Mutual has developed a Law Practice Management Booklet Series written from the perspective of an errors and omissions insurance company. Our goal is to provide a single source of accurate, practical information and best practices for everything from conàict of interest, to client communications, to law of ce technology, with the additional commitment to keep it current and accessible. By compiling all this information into checklists, avoidance tips and examples, we've turned a mountain of material into convenient, easy-to-scan, simple-to-use "chunks" of information organized by topic. In addition, you'll nd reasonably detailed real-life experiences to ponder. Using the tools in this book will help you "cover all the bases" from a risk management perspective. Use the checklists and tips as guidelines, not requirements set in stone. At the same time, understand that each of the items is included in this book for a particular reason. Hopefully, you'll be able to match your needs with our material and in doing so, avoid potential malpractice claims. Sincerely, Steve Brady Chief Executive Of cer, Minnesota Lawyers Mutual iv

7 TABLE OF OF CONTENTS Introduction...1 An In nite Variety of ConÀict Possibilities From the Claim Files...2 Real Experiences: ConÀicts and How the Claims Could Be Avoided Recognizing ConÀicts...4 What is a ConÀict of Interest? Rule 1.7 ConÀict of Interest: Current Clients... 5 Rule 1.9 Duties to Former Clients... 8 Rule 1.8 ConÀict of Interest: Current Clients: Speci c Rules... 8 Of cer and Directorships and Equity Arrangements Closely Held Corporations Importance of Systems...13 Three Good Reasons Damage Control Awareness of Responsibilities Avoid Waste Screening...15 A Critical Step to Avoid Risk Prospective Clients Existing Clients, New Matters System Requirements...19 The Essentials Data Bank Pre-File Opening Requirements Open File Requirements Types of Systems...24 Systems: Simple to High Tech Forms-Based ConÀict System Using Software to Search for ConÀicts A Simpli ed Tool You Already Own Minnesota Lawyers Mutual v

8 TABLE OF OF CONTENTS Managing ConÀicts...31 There is a ConÀict... Now What? Seek Objective Analysis Disclosure Obtaining Informed Consent Declining Representation Non-Engagement Letters Consequences and Claims...38 A Serious Matter Ethics Complaint Legal Malpractice Disquali ed Lose Fees Importance of Prompt Reporting Cannot Be Over Emphasized Notice of Claims and Disciplinary Actions APPENDICES Appendix I: ABA Model Rules of Professional Conduct (2010) Rule 1.7 ConÀict of Interest: Current Clients Rule 1.8 ConÀict of Interest: Current Clients: Speci c Rules Rule 1.9 Duties to Former Clients Rule 1.10 Imputation of ConÀicts of Interest: General Rule Rule 1.11 Special ConÀicts of Interest for Former and Current Government Of cers and Employees Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral Rule 1.13 Organization as Client Rule 1.18 Duties to Prospective Client Appendix II: Non-Engagement Letter Appendix III: Engagement Agreement Appendix IV: Common Party Search Checklist Minnesota Lawyers Mutual vi

9 INTRODUCTION An InÀnite Variety of ConÁict Possibilities ConÀicts of interest spawn alarming numbers of ethics complaints, attorney and law rm disquali cations, and legal malpractice claims. Yet, many attorneys continue to ignore these warnings and insist that conàicts of interest are not a problem within their respective practices. Consequently, conàict of interest identi cation systems and procedures either are not implemented or they rely exclusively upon attorney memory. If an actual or potential conàict is identi ed, attorneys nevertheless accept representation without disclosing the conàict in writing and, in turn, obtaining written client consent. Both situations are unacceptable by today s risk management standards and unnecessarily expose attorneys to expensive and embarrassing consequences. ConÀicts of interest are not the exclusive headache of large, urban, multi-of ce law rms. ConÀicts of interest arise within and affect law practices of every size, geographical location and discipline. The number of clients, adverse parties, and interested non-parties with whom attorneys become involved throughout their careers is truly staggering and invariably underestimated. Additional factors, such as client and attorney mobility, and economic and professional pressures, create an environment in which an in nite variety of conàict of interest possibilities exist. This booklet, Avoiding ConÀicts of Interest: A Malpractice Insurance Company s Perspective, serves as a resource to help you identify, check for and manage conàicts of interest situations, and offers guidance on what to do if you nd yourself in a conàict of interest situation. Minnesota Lawyers Mutual 1

10 FROM THE CLAIMS FILES Real Experiences CONFLICT: Personal Injury Attorney represents mother and daughter, both of whom were seriously injured in a motor vehicle accident in which the mother was the driver. Attorney settles the claim for the $250,000 policy limit of the tortfeasor. No other coverage is available. When attorney attempts to distribute the settlement proceeds, mother and daughter disagree as to who should get how much. Attorney ends up being sued by both mother and daughter, alleging conàict of interest. How the Claim Could Have Been Avoided Attorney should have recognized early on the potential for a conàict and should not have represented both mother and daughter. CONFLICT: Business Law Practice Attorney is retained to set up a small business owned by three individuals. Attorney advises the three that his role will be limited to acting as the attorney for the corporation. He does not, however, memorialize that conversation in either a letter or in the retainer agreement. As time goes by, the business comes on hard times and two of the partners believe the problems with the company are as a result of poor performance of the third partner. They come to attorney to be advised as to the procedures for forcing out the third partner, which they eventually do. Attorney has, over the years, represented the business. When third partner learns that attorney advised his partners regarding the force out, he sues attorney, alleging, among other things, conàict of interest. 2

11 FROM THE CLAIMS FILES How the Claim Could Have Been Avoided Clearly de ne and memorialize in either a letter or in the retainer agreement the exact scope of the representation. Work only within the scope of the representation. Attorney should have advised the individual partners he could not represent them on personal matters. CONFLICT: Commercial Law/Probate Matter Clients were represented by attorney for all matters relating to their family business for over 25 years. Retirement time was approaching. Clients wanted to pass the business on to the children who had for years been involved with the business. Clients and children all came in to meet with attorney. They advised attorney they wanted to sell the business to the children on a contract, having the proceeds from the contract fund their retirement. They did not want the contract recorded, as the children needed to borrow operating funds, using the property and inventory as collateral. While attorney advised against this, clients wishes were carried out. Children borrowed, didn t pay back, and eventually lost the business and the real property. Mom and dad lost their retirement income. Everybody sued the lawyer. How the Claim Could Have Been Avoided Determine and clearly de ne who you representing. Do not represent both sides in a transaction. Minnesota Lawyers Mutual 3

12 RECOGNIZING CONFLICTS What is a ConÁict of Interest? A conàict of interest is a compromising inàuence that is likely to negatively affect the advice which a lawyer would otherwise give to a client. A conàict of interest can adversely affect a lawyer s judgement, loyalty and ability to safeguard the interest of a client or prospective client. What is it about a conàict of interest that is so bad? The answer is quite simple. Loyalty and independence of judgment are essential to the effective representation of a client. In fact, they are fundamental to the health of the lawyer/client relationship. A conàict of interest may make it impossible to exercise the essentials of loyalty and judgment. Although evidence suf cient to establish a violation of the Rules of Professional Conduct does not necessarily establish a cause of action for legal malpractice, courts look to the rules with increasing frequency for guidance in considering issues of conàict of interest in disquali cation and legal malpractice cases. The following ABA Model Rules of Professional Conduct should be reviewed in regards to a conàict of interest check (see Appendix I). In addition, state codes of professional responsibilities should be reviewed because there are different requirements that apply. Refer to Appendix I on page 41 to review the rules. Rule 1.7 ConÀict of Interest: Current Clients Rule 1.8 ConÀict of Interest: Current Clients: Speci c Rules Rule 1.9 Duties to Former Clients Rule 1.10 Imputation of ConÀicts of Interest: General Rule 4

13 RECOGNIZING CONFLICTS Rule 1.11 Special ConÀicts of Interest for Former and Current Government Of cers and Employees Rule 1.12 Former Judge, Arbitrator, Mediator or Third-Party Neutral Rule 1.13 Organization as Client Rule 1.18 Duties to Prospective Client The problem surrounding conàicts of interest are complicated by the fact that conàicts of interest are subtle: There are no hard-and-fast rules to avoid many conàict of interest problems. The rules that do exist are not absolute and contain conditions, exceptions and discretionary factors. The following material provides details regarding common situations in which conàicts occur, examples and avoidance tips. The rules discussed in the following can be found in full in Appendix I. Rule 1.7 ConÁict of Interest: Current Clients Every attorney owes duties of loyalty, con dentiality, communication and competency to every client. Under Rule 1.7, it is incumbent upon attorneys to identify situations which may threaten these duties and, after objective, reasoned analysis, choose the course of action that will best preserve them. Although not all are delineated under Rule 1.7, available courses of action include declining representation, withdrawal from ongoing representation or representation after full disclosure, consultation and client consent. Minnesota Lawyers Mutual 5

14 RECOGNIZING CONFLICTS Rule 1.7 also speci cally addresses conàicts of interest created through simultaneous, adverse representation of multiple clients, whether jointly in the same proceeding or separately in different proceedings. Rule 1.7 conàicts of interest have been characterized by some courts as open le conàicts. Adverse Interests Rule 1.7(a)(1) prohibits the simultaneous representation of clients whose interests are directly adverse. All simultaneous, directly adverse interest conàicts are not necessarily as obvious. Attorneys must analyze whether the clients interests are, in fact, directly adverse; and if interests are directly adverse, is there nevertheless a reasonable belief that representation of one client will not adversely affect the attorney-client relationship with the other client. Rule 1.7(a)(1) ConÀicts: EXAMPLE An attorney who represents both the plaintiff and defendant in a civil lawsuit. Advancement of the plaintiff-client s position necessarily precludes advancement of the defendant-client s position, thus compromising the duties of loyalty, competency, con dentialityandcommunicationtoeachclient,the very core of the attorney-client relationship. Outside Interests Rule 1.7(a)(1) prohibits the idea that attorneys should exercise independent professional judgment on behalf of every client. The rule focuses on the quality of representation, rather than on the attorney-client relationship 6

15 RECOGNIZING CONFLICTS itself. Although representation under Rule 1.7(a)(2) can sometimes amount to a per se conàict, most cases require an analysis of whether outside interests, including the attorney s own interests or duties, will inhibit the attorney s ability to represent the client zealously and objectively. Rule 1.7(a)(2) ConÀicts: Representation of both husband and wife in an amicable dissolution. Third-party payment of attorney s fees. Representation of multiple defendants in a civil or criminal case. Representation of individual corporate clients by corporate counsel. Representation of minors at parents request. Representation of buyer and seller in business or real estate transaction. Of cerand/ordirectorpositionsonclientboardsof directors. EXAMPLE Business involvement with clients, an alarmingly popular practice fraught with ethics and legal malpractice implications, are also subject to Rule 1.7(a)(2) scrutiny. These situations are also addressed under Rule 1.8. Although open le conàicts may, in the discretion of the attorney, be handled by immediately disclosing the actual or potential conàict and obtaining client consent, be forewarned that anything less than full disclosure may result in a malpractice action. Minnesota Lawyers Mutual 7

16 RECOGNIZING CONFLICTS Rule 1.9 Duties to Former Clients Rule 1.9 prohibits closed le conàicts which involve representation adverse to a former client in the same or substantially related matters. The primary goal of Rule 1.9 s prohibition is to preserve client con dentiality. Generally, where a new client s interests are materially adverse to the interests of a former client and the representation may involve the use or disclosure of con dences of that former client, the representation is prohibited, absent disclosure and client consent. Under the facts and issues of a conàict situation, there must be a substantial, relevant relationship or overlap between the subject matters of the two representations. If a substantial, relevant relationship exists, certain presumptions apply. It is irrefutably presumed that the attorney received con dences from the former client and the attorney will not be heard to claim otherwise. It is also presumed, but subject to rebuttal, that these con dences were conveyed to the attorney s af liates. See T.C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F. Supp. 265 (S.D.N.Y. 1953) (establishes the rule that a former client may automatically disqualify a lawyer who had formerly represented him, so long as the new matter was substantially related to the former representation and the new representation was adverse to the former client s interest). Under Rule 1.9, the rm should ask the simple question: Would the former client have con ded in his/her attorney had he/she known the attorney would advance the position now asserted? Rule 1.8 ConÁict of Interest: Current Clients: SpeciÀc Rules Rule 1.8 speci cally proscribes a broad range of conduct, much of which involves attorney self-dealing. 8

17 RECOGNIZING CONFLICTS Rule 1.8 ConÀicts: EXAMPLE Investment in a client-involved business. Accepting stock in lieu of fees. Making loans to clients. Initiating a sale or purchase of property to a client. Interestingly, most proscriptions with Rule 1.8 are already covered under Rule 1.7(a), although innocuously, Rule 1.8, with its straightforward list of do s, don ts and how to s effectively reemphasizes the paramount objective to preserve quality of representation. The rule gives fair and adequate warning to all attorneys that involvement with clients in any capacity other than legal advisor is courting disaster. Plain and simple. In order to overcome the presumption that the quality of representation has been diminished by attorney involvement in proscribed situations under Rule 1.8, the attorney must establish that: Rule 1.8 Checklist The transaction and its terms are fair and reasonable to the client; The transaction and its terms are fully disclosed; The disclosure is in writing; The disclosure is communicated in a manner that can be reasonably understood; The client is given a reasonable opportunity to seek the advice of independent counsel; and The client consents in writing. Minnesota Lawyers Mutual 9

18 RECOGNIZING CONFLICTS Once again, the most effective form of protection from ethics complaints, disquali cations and legal malpractice claims arising out of Rule 1.8 conduct and involvement is abstinence. Otherwise, the most important aspect of client consent under Rule 1.8 is the opportunity to confer with independent counsel regarding the fairness and foreseeable problems associated with an attorney-client business involvement. Attorneys should insist that their clients speak with independent counsel or else decline the pecuniary involvement. It should go without saying that all terms, disclosures, independent counsel opinions and client consents related to a Rule 1.8 involvement should be in writing. Although the above requirements are straightforward and often achievable, many attorneys do not jump through required Rule 1.8 hoops, either because they are not aware the requirements exist or more likely, they believe that their relationships with clients, unlike those of attorneys being sued, are impervious to discord and nger pointing. Unfortunately, the wealth of malpractice claims, ethics complaints and disquali cations involving long-term clients shatters this myth and often at a very high price. OfÀcer and Directorships and Equity Arrangements Serving as director or of cer of, or having a business interest in, a client company raises myriad ethics issues for attorneys which are dif cult to resolve. While the Rules of Professional Conduct do not speci cally prohibit attorneys from simultaneously acting as outside legal counsel and serving as of cers or directors on behalf of, and having equity interests in, corporate clients, Rules 1.7, 1.8 and 1.13 (Organization as Client) proscribe involvement with clients that will jeopardize the attorney duties of loyalty, 10

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