MPRE area 4 of 12
MPRE Conflicts of Interest
Conflicts questions are among the most heavily tested on the MPRE. They require you to (1) spot whether a conflict exists under 1.7, 1.8, 1.9, 1.11, 1.12, or 1.13, (2) determine whether it is consentable and what consent requires, and (3) apply imputation under 1.10 to determine whether the whole firm is disqualified. Prospective-client conflicts under 1.18 and the special public-interest provisions of 6.3 and 6.4 round out the topic.
What the MPRE tests
Current Client Conflicts - General Test
A lawyer may not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict exists if representing one client will be directly adverse to another current client, or if there is a significant risk that representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, a third person, or by the lawyer's own personal interest. Even a concurrent conflict may be waived if it is consentable and each affected client gives informed consent, confirmed in writing.
Specific Current-Client Rules (Business Deals, Gifts, Media Rights, Aggregate Settlements, etc.)
Rule 1.8 lists per se conflict rules for current clients that override the general balancing test of 1.7. These include restrictions on business transactions with clients, using client information, gifts from clients, literary/media rights, financial assistance in litigation, sexual relationships with clients, and aggregate settlements.
Former Client Conflicts
A lawyer who has represented a client may not later represent another client in the same or a substantially related matter where that new client's interests are materially adverse to the former client, unless the former client gives informed consent, confirmed in writing. The lawyer also may not use or reveal the former client's confidential information to the former client's disadvantage, except as the rules would otherwise permit.
Imputation of Conflicts
When one lawyer in a firm is prohibited from representing a client because of a conflict under 1.7 or 1.9, all lawyers in that firm are also prohibited from the representation, unless the conflict is based on a purely personal interest of the disqualified lawyer that does not present a significant risk to other clients, or the conflict arises from a lateral lawyer's work at a prior firm and that lawyer is timely screened with written notice to the former client. Imputed conflicts may be waived by informed consent, confirmed in writing, under the same standards as 1.7.
Government Lawyers and Former Judges/Neutrals
A former government lawyer may not represent a private client in a matter in which the lawyer personally and substantially participated while in government service, unless the government agency gives informed consent, confirmed in writing; screening of the firm can avoid imputation. A lawyer may not represent anyone in a matter in which the lawyer personally and substantially participated as a judge, arbitrator, mediator, or other third-party neutral, unless all parties give informed consent, confirmed in writing; screening can likewise avoid imputed disqualification of the firm.
Organization as Client
A lawyer who represents an organization represents the entity itself, acting through its duly authorized constituents, not the individual officers, directors, or employees. If a lawyer learns that an officer or employee intends to act in a way that is a violation of law that could be imputed to the organization and likely to cause substantial injury, the lawyer must act in the organization's best interest, which may require reporting up the ladder to higher authority, including the board if necessary.
Prospective Clients
A person who discusses a possible representation with a lawyer, even if no representation results, is a prospective client to whom the lawyer owes limited duties of confidentiality. A lawyer who receives disqualifying information from a prospective client may not represent another client with materially adverse interests in the same or a substantially related matter, but this conflict can be avoided through advance limits on information received or cured through informed written consent from both the prospective and affected client, and imputation can sometimes be avoided by screening.
Legal Services Organizations and Law Reform Activities
A lawyer may serve as a director, officer, or member of a legal services organization even if it serves persons whose interests conflict with the lawyer's own client, so long as the lawyer does not knowingly participate in a decision that would be incompatible with obligations to a client, and must not act if it would violate 1.7. A lawyer may serve on boards of organizations involved in law reform, even if the reform could affect the interests of the lawyer's own clients, but must disclose that fact to the organization when the lawyer knows the client's interests may be materially benefited.
Try an MPRE-style question
A lawyer represents a husband and wife in preparing reciprocal wills that leave everything to each other, with the couple's children as secondary beneficiaries. During the engagement, the husband privately tells the lawyer that he has a child from an affair and wants to leave that child a bequest without the wife knowing. The lawyer believes disclosing this to the wife is necessary to competently continue the joint representation, but the husband refuses to allow disclosure. May the lawyer continue representing both spouses in the estate planning matter?
- (A) Yes, because information received from one joint client is never confidential as to the other joint client in a common representation.
- (B) No, because the lawyer must withdraw from representing both spouses since the material information affecting the wife's interests cannot be withheld without impairing the joint representation.
- (C) Yes, because the lawyer may simply omit the bequest from the will without telling the wife anything.
- (D) No, because spousal joint representation in estate planning is always improper given the inherent conflict of interest.
Show answer
B. In a common representation, the lawyer owes each spouse a duty to share information material to the joint matter. The lawyer also owes the husband confidentiality. When the husband forbids disclosure of information the lawyer considers necessary to competently represent the wife, the conflict cannot be managed, and the lawyer must withdraw from the joint representation (Rules 1.4, 1.6, 1.7, 1.16). The choice saying joint-client information is never confidential overstates the law: absent a prior agreement to share, the lawyer may not simply disclose over the husband's objection, which is why withdrawal is the result. Model Rule 1.7
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