Conflicts of Interest Concurrent and Successive Client, Personal, and Third Party

Conflicts of Interest

Concurrent and Successive

Client, Personal, and Third Party


Conflict can be with Other client, Third party, or Attorney’s own interests

Important area – potential problems if conflict Discipline – directly or indirectly Malpractice – as a result of conflict Breach of fiduciary duty (with possible fee forfeiture) Disqualification – big area

Client conflicts can be concurrent or successive.


Some conflicts can be waived (consentable) Others cannot (not consentable)

Successive conflicts are generally waivable with informed consent.

Concurrent conflicts are waivable only if attorney has objectively reasonable belief can provide competent representation.

Why this difference?

Conflicts generally imputed to all attorneys in firm – presumption of shared confidences -- more later.

Rule 1.7 Conflict of Interest: Current Clients

(a) Shall not represent client if concurrent conflict of interest (unless allowed under (b)).

Concurrent conflict: Directly adverse to another client Significant risk representation(s) will be materially

limited by lawyer’s responsibilities to Another client A former client A third person A personal interest of the lawyer

Rule 1.7(b)

May represent client if Reasonably believe can provide competent and

diligent representation to each affected client; Representation not prohibited by law; Representation does not involve claim by client

against another in same litigation or proceeding; AND

Each affected client gives written, informed consent.

In Re Dresser Industries, Inc.

Susman Godfrey represented Dresser Also lead counsel for P committee in antitrust action. Dresser named as defendant in that case.

Firm said would help them get new attorney. They said no.

Dresser motion to disqualify firm. District Court denied motion.

5th Circuit said abuse of discretion. Granted writ of mandamus. Law firm disqualified.

Dresser questions

Why must firm be disqualified? Weren’t they going to withdraw from current

representation? What is the “hot potato” doctrine? What justifies the doctrine?

Loyalty Former client conflicts Withdrawal rules

Dresser questions

Why is the court looking at Texas Rules? Do the Texas Rules control?

Federal case Consider fairness of proceeding Woods considerations

Appearance of impropriety Possibility of specific impropriety Likelihood of public suspicion outweighs interest

in continuing participation.

Texas Rule 1.06

(a) Shall not represent both sides in same litigation (b) (Unless (c)) Shall not represent client if

Involves substantially related matter materially and directly adverse to client

Reasonably appears representation is or will be adversely limited by responsibilities to another client, to 3P, or lawyer’s or firm’s own interests.

(c) May represent in (b) if Reasonably believes will not be materially affected; and Each affected client consents after full disclosure of

implications, risks and advantages.

Additional conflicts questions:

Could Susman Godfrey have continued to represent Drill Bits by dropping (or not joining) Dresser as a defendant?

Is ignorance an excuse in conflicts cases? Conflicts can result in

Disqualification Discipline Malpractice/ effect on result Breach of fiduciary duty, w/ or w/o fee forfeiture

Bottoms v. Stapleton

Minority shareholder (P – Bottoms) sued Majority shareholder (D – Stapleton) and limited liability company (D – Paducah Gear) Claimed breach of fiduciary duty

and conversion. P moved to disqualify D

counsel T Ct disqualified as to

Paducah, not as to Stapleton. Appeal.





Rule 1.8 (g)

A lawyer representing 2 or more clients Shall not participate in aggregate settlement

or in criminal case aggregate plea agreement Unless each client gives written, signed,

informed consent. Lawyer must disclose

Existence and nature of all claims or pleas and Participation of each person in settlement.

Fiandaca v. Cunningham

Class action by female prison inmates Facilities not equivalent to those for male inmates Bench trial on merits.

D Ct found state violated equal protection Ordered construction of permanent facility. Find temporary facility

during construction. Prohibited from using grounds

of Laconia State School. Did not disqualify Ps’ lead attorney –

New Hampshire Legal Assistance (NHLA)

Fiandaca conflict

What was the alleged conflict? Is this a disciplinary proceeding?

How is the conflict issue raised? Is there a conflict?

Why did D Ct deny motion to disqualify? What is the impact of the conflict?

Whose interests are compromised? Who complained? Is this a consentable conflict?





Fiandaca continued

What does the court (1st Circuit) do? What does the court mean in saying the motion

is not tactical? What difference would that make? How does it know?

What happens now? Who will represent the Plaintiffs now?

Is discipline likely in this case?

NOTE: Positional Conflicts and Economic Competitors

What is a positional conflict? Is it an actual conflict? What is a lawyer’s relationship to the client’s

position? What circumstances must be considered?

Is it a conflict of interest to represent businesses that are economic competitors?

Holloway v. Arkansas 3 defendants charged: 1 count robbery, 2 counts rape.

T Ct appointed Harold Hall – public defender – to represent all 3. Hall moved for appointment of separate counsel –

Possibility of conflict of interest Court denied motion (twice).

All 3 were convicted on all counts. Ds appealed – claimed ineffective

assistance of counsel. State Supreme Court affirmed –

no actual conflict or prejudice. Ds appeal to U.S. Supreme Court. What did Supreme Court decide?

Conflict of interest in Holloway

How can there be a conflict? Aren’t they all on the same side? Want the same result? Have consistent stories?

Different interests of clients: Need to cross-examine other Ds. Possible need to impeach.

Did this make a difference here? Didn’t they all have the same story? Not there? Don’t Ds need to show prejudice? How were the client/witnesses presented?

Showing of prejudice not required.

Prejudice very difficult to prove. Why? Prejudice very likely. Why? What kinds of situations could cause prejudice?

Plea bargains Decision to testify or not. Content of testimony. Disparate impact of evidence. Relative innocence or culpability. Sentencing concerns.

So why not just have a rule that an attorney can’t represent >1 defendant in same case?

If seek separate counsel, generally reversible if court denies.

Other developments In Cuyler v. Sullivan (1980) Ds did not seek separate counsel.

For ineffective assistance, must show Actual conflict Adverse effect on performance

No duty to inquire about conflict unless know or have reason to know there is a conflict.

Mickens v. Taylor (2002) – Failure to inquire alone not grounds for reversal (explains Wood)

Must still show conflict adversely affected performance. Actual conflicts do adversely affect performance.

Wheat v. United States (1988) – Denial of request for multiple representation not grounds for

reversal. Why?

Conflicts of interest – Former clients

Rule 1.9(a) Lawyer who has represented client in a matter Shall not represent person in same or

substantially related matter In which interests are materially adverse to former

client UNLESS former client gives written, informed

consent

Substantially related matter

Various tests – consider whether . . . Matter specific

Representation will harm client RE former matter Ex: Try to avoid K drafted for client

Information specific Got information from client that could now be used against

client Ex: Use information from tax representation that can now

be used against client in divorce proceeding Both could be involved. Loyalty concerns can be factor

New Rule 1.18

Prospective client Protect confidential information Do not represent (imputed to firm) client with

interests materially adverse to prospective client in same or substantially related matter,

Unless Both parties give written, informed consent or Lawyer took reasonable measures to avoid getting more

info than necessary and Disqualified lawyer is timely screened – no part of fee Written notice given to client

Kala v. Aluminum Smelting & Refining Co.

Pearson represented Kala in litigation against ASR. Left firm, joined Duvin firm,

who represented ASR. Kala filed motion to disqualify

Court disqualified Pearson and Duvin firm. Supreme Court affirmed.

Pearson (Pearson)(old firm) Duvin Kala ASR

Pearson Disqualification

Rule 1.9(a) Lawyer who has represented client in a matter Shall not represent person in same or substantially related

matter In which interests are materially adverse to former client UNLESS former client gives written, informed consent

Here, Pearson disqualified Same matter Switched sides Very involved with client Lots of information from client

Disqualification of Firm

Rule 1.10(a) While lawyers in same firm None shall knowingly represent client if Any of them could not represent client under 1.7 or 1.9, Unless prohibition based on personal interest and does not

pose significant risk as to other lawyers.

Pearson is disqualified under 1.9 Disqualification is not based on personal interest Firm is disqualified – Presumption of shared confidences.

Presumption of shared confidences Is presumption rebuttable?

NO! (Under rules – rule absolute) Yes, according to this court (& some others)

If so, how is it rebutted? Factually – prove not shared Apply screen/Chinese wall/cone of silence

Why allow to rebut? Mobility issues Client choice

Why not allow? Confidentiality Confidence of clients

Why not allowed in this case?

“Side-switching attorney” Very involved – Lots of information Loyalty concerns – betrayal

Less weight to choice of attorney – Depriving Kala of his choice.

Negotiating with firm while representing Kala Did firm act professionally here?

Duvin now disqualified. Client must get new attorney. Firm created this problem.

Variations Pearson did not work on case at old firm, but firm

represented Kala – Not disqualified. Rule 1.9(b).

Did not work on it, but discussed it at lunch? Did he acquire material information? If so, disqualified.

Wrote memo, based on hypo. No information? Unlikely got info – if not, not disqualified. If did, disqualify.

What if Pearson leaves, and takes Kala to new firm? Can old firm represent ASR? Yes, if no attorney in firm has material information

Why not irrebuttable presumption here? In any of these, can always represent with consent.

Rule 1.9(b)

Shall not knowingly Represent person in same or SRM In which former firm represented client

Whose interests are materially adverse and Lawyer acquired material protected information

Unless former client gives informed written consent.

Rule 1.10(b)

When lawyer leaves a firm, the firm Is not prohibited from representing client with

materially adverse interests unless The matter is the same or SRM and Any lawyer in the firm has material protected

information. May represent client with informed, written

consent

National Medical Enterprises v. Godbey

Tomko Baker & Botts (Tomko

screened)

Cronen NME Ps

(admin) (hosp – D)

National Medical Enterprises v. Godbey

Tomko represented Cronen – hospital administrator employed by NME.

Received confidential information from NME NOTE – receipt of information causes conflict.

Tomko cannot represent Ps who are suing NME. Is Baker & Botts disqualified?

Tomko has not disclosed information. Tomko has been screened. No reasonable probability confidential information will be

revealed.

NME Motion to Disqualy

Baker & Botts is disqualified. Irrebuttable presumption that information shared.

Virtually impossible for former client to prove whether information shared.

Client needs security. Guards integrity of legal practice.

Applies whether former client or duty under confidentiality agreement.

Abuse of discretion to deny disqualification.

Cronen’s motion

Rules don’t determine disqualification, but provide guidelines, considerations

Cronen is not being sued. Little risk that he will be. BUT is some risk. And risk is serious.

He could be implicated in matters involved. Concern that former law firm involved against him. Action is adverse to him.

No discretion to not disqualify.

Vaughan v. Walther Nancy Vaughan hired Goff to represent

daughter in child custody matter. Goff never met daughter. Matter dismissed 2 weeks later.

Vaughan hired Goff to represent her in seeking conservatorship of same child (and another) Hearing in March – representation discussed.

At final hearing in October, daughter filed motion to disqualify Goff.

Trial court granted motion. Supreme Court conditionally grants writ – abuse of

discretion.

Vaughan v. Walther

Was there a conflict of interest? Shouldn’t attorney be disqualified?

Even if conflict of interest, right to object may be waived: Here, did nothing for 6 ½ months. Brought up at final hearing. Looks strategic – at least unfair to other party Unlikely any real harm.

Disqualification and ethical violation are different.

TLAPTexas Lawyer’s Assistance Program

Ann D. Foster, JD, MAC, Director

1-800-343-TLAP (8527)

Grant v. 13th Court of Appeals Litigation RE chemical release

Attorney Brunkenhoefer represents >400 Ps Legal secretary Sandra Adame prime file coordinator –

interviews, appointments, etc. Adame left. Placed by temp agency in

Chavez firm (rep’d 2 Ds) Chavez relied on temp agency to

inquire about conflicts. When found out, screened her.

Ps filed motion to disqualify. Adame terminated.

Trial court granted motion to disqualify Supreme Court agrees.

Non-legal personnel

Here, rebuttable presumption that information shared. (Why different treatment here???) BUT not rebutted simply by testimony that did not share

confidences. TEST: Is there genuine threat of disclosure?

Actual disclosure too hard to prove. Screening could reduce (eliminate?) threat

Here, no screening in initial period. Too late now.

Grant, unless extreme prejudice – Weigh risk, amount of participation, delay, prejudice

In Re Sofaer

Sofaer admonished for representing Government of Libya in violation of Rule 1.11(a).

Affirmed. He argued that

Representation not in the same matter. Involvement not personal and substantial.

Why is this a requirement? Why didn’t these arguments work?

What is a “matter”? Does he have to have information?

Revolving Door Issue

Is firm disqualified? Different rule for public service attorneys Screening allowed under 1.11(b)

Allow mobility

Disqualification imputed unless Timely screened, no part of fee . . . Written notice promptly given

Ascertain compliance NOT consent requirement

Could always screen with consent

Rule 1.11 – Government lawyers

Lawyer who has served in government Is subject to 1.9(c)(on using or revealing client info) Shall not represent client if participated personally and

substantially, unless government consents in writing When disqualified, no lawyer in firm shall

represent client unless Lawyer timely screened from participation and fee and Written notice is given to government agency.

If have confidential government information about a person, may not represent one with adverse interests if could be used to material disadvantage. Firm can, with screening.

Revolving Door continued (a) and (b) NOT limited to “switching sides.” (c) Confidential information protected. (d) If currently public officer or employee

Subject to Rules 1.7 and 1.9 Shall not participate in matter involved in while in private

practice or employment without written consent of agency Shall not negotiate for private employment w/ party or

lawyer in case in which personally and substantially involved, unless allowed by 1.12

(e) Matter includes Judicial or other proceeding, or any matter involving

specific party or parties and Any other matter governed by agency conflicts rules

Rule 1.12 – Former judge (a) Attorney shall not represent client in matter

if participated personally and substantially as former judge, law clerk, arbitrator, etc., without informed, written consent. Disqualification is imputed to firm, UNLESS is screened and

notice given to parties and tribunal. (b) Shall not negotiate for employment

with party or lawyer in a matter in which participating personally and substantially as judge, arbitrator, etc. Law clerk may do so if notify judge.

Partisan arbitrator in multimember arbitration not prohibited from representing party.

Committee on Professional Ethics v. Mershon

Mershon reprimanded for entering into a business transaction with a client.

Set up corporation to develop real estate owned by client – Client to own 40% of stock,

engineer 40%, Mershon 20%. Financing never obtained, client died. Mershon relinquished his interest – engineer did not. Mershon did not seek payment for his services.

Court still found rule violation.

Violation in Mershon

Court found violation of rule Differing interests – present interest for future services –

debtor of corporation. Client expected Mershon to protect his interests Full disclosure of transaction, but not effect –

no advice about advisability as in 3P transaction, failure to protect his interests.

Attorney options – none satisfied Best and safest – Refuse to participate personally Recommend independent advice Worst – Meet high standards of disclosure

Rule 1.8(a) A lawyer shall not enter into a business transaction

with a client or knowingly acquire an . . . interest adverse to a client unless: The transaction and terms are fair and reasonable to the

client and are fully disclosed and transmitted in writing in a way that can be reasonably understood by the client;

The client is advised in writing to seek independent legal advice and given reasonable opportunity to do so;

The client gives written, signed, informed consent to essential terms and lawyer’s role, including representation of client.

Transactions with client

Don’t do it! If too good to pass up, why is it so good?

Are you taking advantage of client? Doesn’t client have other options?

If it’s not too good to pass up, why not just pass on it? IF go forward

Advise client as if doing deal with third party. B of P on lawyer if challenged – fiduciary Rule does not apply to standard commercial

transactions. Doctor, banker, car dealer

Potential repercussions

Discipline Mershon

Breach of fiduciary duty Potential fee forfeiture or damages

Avoidance of transaction Lose benefits might have been entitled to in arms-length

transaction

Malpractice Harm caused by failing to adequately protect client’s

interests

Literary/Media rights contracts under Rules

Rule 1.8(d) Prior to conclusion of the representation Lawyer shall not make or negotiate Agreement for literary or media rights to “Story” related to the representation

Texas Rule 1.08(c) Prior to conclusion of all aspects of the matter . . .

NOTE: NOT waivable by client Potential discipline

Client is more interested in conflict – ineffective assistance

Beets v. Scott

Betty Lou Beets convicted of capital murder of her husband Jimmy Don (Husband # 5). “Staged” accidental drowning. Jimmy Don buried under planter in front yard (Husband # 4 – Doyle Wayne Barker –

was buried under patio in back yard.) Betty Lou hired attorney Andrews

First for insurance/pension matters, Then hired in murder case. After representation began, she transferred

media rights to her story to Andrews’ son.

Literary/Media rights

Transfer of publication rights violates Code Disciplinary matter Andrews not disciplined (unclear why).

Reason for rule: Attorney may be more interested in creating good story

than in effective representation. “Trades on the misery of the victim and his family.” Does the rule help clients???

Ineffective Assistance of Counsel claim Based on conflict of interest – Rarely successful

Standard for media rights conflict

Strickland standard Did performance fall below objective standard of

reasonableness? Is there a reasonable probability that result would have

been different w/o errors? Cuyler standard

Was there an active conflict of interest? Did it adversely affect the lawyer’s performance?

Which standard does the court use, and why? Waiver has survived constitutional challenge.

But court can deny client’s attempt to waive.

Rule 5.7

Lawyer subject to Rules if provide law-related services if Not distinct from legal services to client By separate entity controlled/partially controlled by lawyer

IF fails to take reasonable measures to assure client knows the services are not legal services and the usual protections do not exist.

Lawyers are always subject to applicable rules in providing legal services, and must make sure client is protected.

Q: What is the conflicts issue?

Law related services

Law related services – examples: Title insurance, financial planning, real estate Accounting, trust services, tax preparation Economic analysis, social work, lobbying, expert

advice Texas does not have this rule. Related to multi-disciplinary practice –

controversial Fee splitting, UPL, independent judgment, conflicts,

advertising, confidentiality and privilege

Competing with clients

Fiduciary obligations – Cannot use client information for personal profit

Rule 1.8(b) – Shall not Use info related to the representation To the disadvantage of the client unless Informed consent or Permitted or required by rules.

Texas Rule 1.05(b)(4) – Shall not Use privileged info for advantage of lawyer or 3P, Unless client consents after consultation.

Passante v. McWilliam

Attorney Passante represented Upper Deck Client needed $100,000 Attorney arranged loan from brother of law partner Grateful client voted to give him 3% interest in company

Attorney sued for breach of K to give him interest Jury awarded P $33 million – value

of stock JNOV for D – unenforceable.

Appeal. Affirmed.

Agreement for stock If gratuitous – unenforceable

If really all their idea, after the fact, no bargain. If bargained-for – violates rules If part of fee agreement, violates rules Rule 1.8(a)

Not good deal for client – no full disclosure No advice/opportunity for independent representation No informed consent

Inherent conflict – existence of interest would cause problems, not good deal for company

If had delivered, would it violate 1.8(c)? Would it be voidable?

Rule 1.8(c) A lawyer shall not

Solicit any substantial gift from a client (including a testamentary gift) or

Prepare an instrument of gift (substantial) to lawyer or related person

UNLESS the lawyer or recipient is related to the client. Related person includes

spouse, Child, grandchild, Parent, grandparent or Other relative or person with close, familial relationship.

***NOTE: No provision for consent.Should you sometimes avoid this even for family members?

In re Blackwelder

Blackwelder was hired to appeal a default judgment against the Gosnells. He missed the filing deadline. He entered into a settlement

agreement with his clients: They agreed

Not to sue him for malpractice; Not to file a grievance against him.

He agreed To reimburse them for out-of-pocket expenses for appeal; To file a joint bankruptcy petition for them.

Rule 1.8(h)

A lawyer shall not Make an agreement

Prospectively limiting liability for malpractice to client Unless client is independently represented, or

Settle a claim or potential claim for such liability With unrepresented client or former client unless Advised in writing to seek independent counsel and Given reasonable opportunity to seek same.

In re Rinella

Disciplinary complaint against Rinella – Professional misconduct Sexual relations with clients and

testifying falsely before commission.

3 year suspension – Supreme Court approves.

R says that not violation of rule – No DR RE sexual relations with clients – Need notice of rules to be disciplined

Court disagrees – implicit in rules – fair notice.

Analysis Violation even if did not directly affect

representation, Still risk to clients. But did affect representation here.

Took advantage of clients and relationship. Overreaching Used confidential information to gain advantage Failure to withdraw Not undivided loyalty

Conduct prejudicial to the administration of justice. Lied in disciplinary proceeding.

Is appropriate inquiry – don’t get to lie about sex.

Rule 1.8(j) Lawyer shall not

Have sexual relations with a client Unless consensual relationship already existed.

New rule – Controversial – not in all jurisdictions Not in Texas Family law

NO provision for waiver Why limitation RE ongoing relationships? Who is the client? Is the rule necessary?

Is it a good idea? What other remedies exist?

Oklahoma Bar Ass’n v. Smolen Attorney Smolen represented Miles

in Workers’ Compensation case. Loaned Miles $1200

“for travel expenses.” $ actually for living expenses. Miles’ home destroyed by fire.

Loan was interest free – To repay $100/week from disability benefits. Repaid $200 – rest to be paid after case over.

Miles hired new attorney – Smolen ended rep. Bar discovered arrangement.

Smolen had done this before. Consulted “experts” who told him it was not a violation.

Rule 1.8(e)

A lawyer shall not provide financial assistance to a client in connection with litigation, except that: May advance court costs and litigation expenses,

w/ repayment contingent on outcome, and May pay court costs and litigation expenses for

indigent client. No provision for advancing living expenses. No court has struck down for

unconstitutionality

Intent and constitutionality

Intent – Concern with creating “bidding wars” for clients –

Champerty and maintenance Clients selecting lawyer based on improper factors, Conflicts of interest – independent judgment.

Smolen says doesn’t apply to him, since he didn’t pay to get client. Representation still ongoing – settlement pending Gets benefit of reputation as one who pays

expenses.

Constitutionality

Rational basis test – Reason to treat litigation expenses and court cost differently from living expenses– Related to litigation Within lawyer’s expertise Duty to advise client RE litigation expenses and court

costs, not other expenses Lawyer generally pays litigation expenses and court costs

directly – living expenses go to client – no guarantee how used.

Texas Rule 1.08(d)

A lawyer shall not provide financial assistance to a client in connection with litigation or administrative proceedings except May advance

Court costs and litigation expenses AND Reasonably necessary medical and living expenses, With repayment contingent on outcome and

May pay court costs and expenses of litigation for indigent client.

*** What is the rationale for the difference?

What are the advantages and disadvantages of each rule?

Rule 1.8(f)

Lawyer shall not accept compensation from 3P for representing client, unless: Client gives informed consent No interference with independent professional judgment or

lawyer-client relationship Confidential information is protected.

When would a 3P pay for client’s representation? Is this a conflict?Is there a duty to the 3P? Recall Rule 5.4(c) – A lawyer shall not permit one

who . . . recommends, . . . pays for legal services for another to direct the lawyer’s professional judgment.

Rule 1.8(i) and (k)

1.8(i) A lawyer shall not acquire a proprietary interest in the C/A or subject matter of the litigation, except May acquire a lien authorized by law May enter K for reasonable contingent fee in civil

case. 1.8(k) All 1.8 rules are imputed to all lawyers

currently in firm, except Rule 1.8(j) (sexual relations with client).

In re Swihart

Swihart retained to represent unwed mother in adoption matter. Mother does not want

To know identity of adoptive parents Adoption to be “local.”

Swiharts proceed to adopt child Mother has adoption withdrawn.

Swihart is suspended from practice. What rule(s) has he violated?

Rule 6.4 Law Reform Activities

Lawyer may serve as director, officer or member of law reform organization even though reform may affect interests of client.

When know client may materially benefit, shall disclose, but need not ID client. Protects organization from impact of conflicts of

attorney – “stealth” activity. Attorney is still subject to general conflicts rules,

so cannot serve (or cannot represent client) if results in 1.7 conflict.

Rule 6.5 If provide short-term limited legal services to a client

Under program sponsored by nonprofit organization or court

Without expectation of continuing representation (by lawyer or client)

Subject to conflicts rules only if know a conflict is involved and

Subject to imputation only if know associated with disqualified lawyer. Otherwise, 1.10 inapplicable.

If take on continuing representation, conflicts rules apply.

People v. Conner

Conner charged w/ armed robbery and other crimes. Stabbed and shot deputy. Shot at D.A. Braughton. Escaped. Charged w/ additional crimes.

Trial Court recused entire D.A. office (25 attorneys)

D.A. appealed. Said no conflict of interest.

Affirmed.

Disqualification

Braughton personally involved. Close relationship with all in office. Small office. All tainted. Issue of fairness -- disqualification Uphold Trial Court decision.

NOTE: What is prosecutor’s “special role” in the justice system?

Insurance “Triangle”

Attorney$ representation

insurance

Insurance Co. Insured $, obligations

Is there a conflict of interest?

If so, what kind?

Employers Casualty v. Tilley

Attorney$

representation

insurance

Employers Casualty Tilley $, obligations

Attorney represented Tilley.

During representation, developed information to defeat coverage on behalf of Employers.

Employers Casualty

Employers seeks declaratory judgment that no coverage due to late notice of claim. Tilley claims Employers waived right to claim late

notice. Now estopped from denying coverage.

Both seek SJ. Tilley wins at trial court on estoppel issue. Court of appeals affirms.

Supreme Court affirms. Basis?

Employers Casualty and Representation of Insureds

Who is attorney’s client? What does majority say? Concurring opinion?

What are the attorney’s obligations? What is the conflict?

Can the insurance company hire in-house counsel or “captive” law firms?

Why are there obligations to the insurance company? Are “guidelines” enforceable?

Was the insurance company well served??

Other insurance issues

What is a “Reservation of Rights” letter? What is a non-waiver agreement? How do courts interpret them?

When does an insurance company have a duty to provide a defense? Does it have a duty to provide a defense for claims for

which there is no coverage?

Is there a conflict of interest when some claims are covered and some are not?

What is the Stowers doctrine?

Other Third Party Conflicts

No specific rule about family member representing other side in case – mentioned in comment

Rule 6.3 – May be member, director, etc., in legal services organization Even if interests adverse to client. Shall not knowingly participate in decision or act of

organization if Would violate Rule 1.7 Could have material adverse effect on representing client of

organization with interests adverse to lawyer’s client.

Rule 2.3 Evaluation for Use by Third Persons

May provide evaluation of Matter affecting a client For use of non-client If reasonably believe compatible with relationship with

client.

If know (or reasonably should know) that Evaluation likely to be materially adverse to client – Shall not provide without informed consent of client.

Except as authorized, Rule 1.6 protects information.

Documents

Conflicts of Interest Concurrent and Successive Client, Personal, and Third Party