Model of Ethics in transactional matters

Several of the model rules guiding conduct around matters of conflict are of particular interest to transactional lawyers. Those rules include ones that address concurrent conflicts, former client conflicts, imputation of conflicts and conflicts surrounding waivers, explained Thomas B. Mason, Zuckerman Spaeder LLP, during “Ethics for the Transactional Lawyer: Practitioner, Disciplinary Counsel, and Defense Perspectives. ”

Concurrent client conflicts are addressed by ABA Model Rule 1.7, which specifically states that a conflict exists if “the representation of one client will be directly adverse to another client” or if there is “significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client.” As Mason stressed, a conflict will still exist even if the cases are unrelated to each other.

In citing ABA Model Rule 1.9 concerning duties to former clients, Mason stated that a conflict exists if representation of a current client against a former one involves a matter that is “substantially related” to the work done for the former client. That begs the question, Mason said, of “what does a substantial relationship mean?” The comments section to the model rule include some examples to clarify.

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A conflict that precludes any lawyer in a firm from taking a matter applies to all other lawyers within the firm. There's a common misperception that screening the one lawyer from the case is enough, said Mason, and that is not the case.

Mason detailed questions to ask oneself in order to identify conflicts: Who is the client? Are you representing multiple, adverse parties? How would you handle client confidential information?

Mason and fellow panelists, moderator Norman M. Powell, Young Conaway Stargatt & Taylor, LLP, and Michael S. McGinnis with the Office of Disciplinary Counsel, Delaware Supreme Court, engaged in a lively discussion of waiver conflicts.  According to ABA Rules, waivers need to be made in writing. And while that is good practice, it is not mandatory everywhere, said Mason. Clients should be thoroughly instructed on what they're giving up when they sign a waiver; “informed consent” is the best avenue.

A portion of the materials released in conjunction with the CLE may be found here.

The entire program may be purchased via the following link.

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