Conflicts of Interest · 12-18% of the exam
8.3.1The consent ladder: which kind of consent each rule wants, side by side
Consent is not one thing on this exam. Rule 1.0 sets the terms (Chapter 4, section 4.2.5): informed consent is agreement after the lawyer explains the material risks and the reasonably available alternatives (Rule 1.0(e)), and unless a rule asks for more, a spoken yes will do; "confirmed in writing" can be the lawyer's own prompt email after that yes (Rule 1.0(b)); an email is a writing, and a name typed with the intent to sign is a signature (Rule 1.0(n)). From there the rules climb in five rungs, and on the fifth no consent of any kind helps. The exam names the consent the lawyer got and asks whether it was enough. Below are the consent rules the exam reaches for, rung by rung. Side by side:
The consent ladder: from a spoken yes to nothing that cures
| Rule | Rung | What needs consent, and whose | Trap | Source |
|---|---|---|---|---|
| 1.6(a) | 1. Informed consent; spoken is enough | Revealing information relating to the representation: the client's informed consent | Disclosure that is impliedly authorized to carry out the representation, or permitted by a Rule 1.6(b) exception, needs no consent at all | Rule 1.6(a) |
| 1.2(c) | 1. Informed consent; spoken is enough | Limiting the scope of the representation: the limit must be reasonable under the circumstances, and the client gives informed consent | Consent does not save an unreasonable limit | Rule 1.2(c) |
| 1.8(b) | 1. Informed consent; spoken is enough | Using information relating to the representation to the client's disadvantage: the client's informed consent | No writing is required, though Rule 1.8(a) a paragraph earlier wants the client's signature | Rule 1.8(b); Comment [5] |
| 1.8(f) | 1. Informed consent; spoken is enough | Accepting the fee from someone other than the client: the client's informed consent, no interference with the lawyer's independent judgment or with the client-lawyer relationship, and the client's information protected under Rule 1.6 | Do not borrow Rule 1.7's "confirmed in writing" for the payment alone; but if the arrangement creates a conflict, Rule 1.7 applies, and that consent must be confirmed in writing | Rule 1.8(f)(1) to (3); Comments [14], [15] |
| 2.3(b) | 1. Informed consent; spoken is enough | An evaluation for a third person's use that the lawyer knows or reasonably should know is likely to affect the client's interests materially and adversely: the client's informed consent | The trigger is "knows or reasonably should know"; an evaluation not likely to hurt the client needs no consent under paragraph (b) | Rule 2.3(b) |
| 1.7(b)(4) | 2. Informed consent, confirmed in writing | A concurrent conflict that Rule 1.7(b)(1) to (3) allows a client to waive: each affected client's informed consent, confirmed in writing | No signature needed: a spoken yes and the lawyer's prompt confirming email will do | Rule 1.7(b)(4); Rule 1.0(b) |
| 1.9(a), (b) | 2. Informed consent, confirmed in writing | Acting against a former client in the same or a substantially related matter: the former client's informed consent, confirmed in writing | The former client is the one who must agree, not the new client | Rule 1.9(a), (b); Comment [9] |
| 1.10(c) | 2. Informed consent, confirmed in writing | Waiving a conflict imputed to the whole firm: the affected client, under the conditions stated in Rule 1.7, so informed consent, confirmed in writing | Rule 1.7's conditions come with the waiver, so a conflict no consent can cure under Rule 1.7(b)(1) to (3) is not cured here either | Rule 1.10(c) |
| 1.11(a)(2), (d)(2)(i) | 2. Informed consent, confirmed in writing | A former government lawyer, on a matter handled personally and substantially in government; or a current government lawyer, on a matter handled personally and substantially in private practice: the appropriate government agency's informed consent, confirmed in writing | The private client's consent is not what this rule asks for | Rule 1.11(a)(2), (d)(2)(i) |
| 1.12(a) | 2. Informed consent, confirmed in writing | A former judge, law clerk to a judge, arbitrator, mediator or other third-party neutral, on a matter handled personally and substantially: all parties to the proceeding give informed consent, confirmed in writing | One party's consent is not enough; screening under Rule 1.12(c) saves the firm, not the lawyer | Rule 1.12(a), (c) |
| 1.18(d)(1) | 2. Informed consent, confirmed in writing | Acting against a prospective client in the same or a substantially related matter, after receiving information that could be significantly harmful to that person: both the affected client and the prospective client give informed consent, confirmed in writing | Screening under Rule 1.18(d)(2) needs no consent, but it cures only the firm's imputed conflict, not the consulting lawyer's own | Rule 1.18(d)(1), (2) |
| 1.5(e)(2) | 2. Informed consent, confirmed in writing | Dividing a fee with a lawyer in another firm: the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing | No client signature needed, but the shares must be part of what the client agrees to | Rule 1.5(e)(2); Comment [7] |
| 1.5(c) | 3. A writing signed by the client | A contingent fee: the agreement is in a writing signed by the client, stating how the fee is figured, the percentages on settlement, trial or appeal, the expenses deducted and whether they come off before or after the fee | Two writings: the client signs before, and the lawyer gives a written statement of the outcome at the end | Rule 1.5(c) |
| 1.8(a) | 3. A writing signed by the client | A business deal with a client, or an interest adverse to the client: terms fair and reasonable to the client, fully disclosed and transmitted in writing; written advice to seek independent counsel and a reasonable opportunity to do so; and the client's informed consent, in a writing signed by the client, to the essential terms and to the lawyer's role, including whether the lawyer represents the client in the deal | Signing the deal contract is not the same as consenting to the lawyer's role | Rule 1.8(a)(1) to (3); Comment [2] |
| 1.8(g) | 3. A writing signed by the client | An aggregate settlement of two or more clients' claims, or an aggregated plea agreement in a criminal case: each client's informed consent, in a writing signed by the client, after disclosure of all the claims or pleas and of each person's part in the settlement | Each client must learn what the others will receive or pay | Rule 1.8(g); Comment [16] |
| 4.2 | 4. Something other than the client's consent | Talking about the matter with a person the lawyer knows has a lawyer in it: that person's lawyer consents, or law or a court order authorizes it | The represented person's own consent is not enough | Rule 4.2 |
| 1.8(h)(1) | 4. Something other than the client's consent | An agreement limiting the lawyer's malpractice liability in advance: the client is independently represented in making it | Informed consent in a signed writing is still not enough | Rule 1.8(h)(1); Comment [17] |
| 1.8(h)(2) | 4. Something other than the client's consent | Settling a malpractice claim with an unrepresented client or former client: advice in writing to seek independent counsel, and a reasonable opportunity to do so | The settlement is allowed; the rule asks for the written advice and the chance, not for a lawyer | Rule 1.8(h)(2); Comment [18] |
| 1.17(c) | 4. Something other than the client's consent | Transferring a client's file when a practice is sold: written notice to each client of the sale, of the right to other counsel or to take the file, and that consent to the transfer will be presumed if the client does not act or object within 90 days | A rare rule where silence counts as consent | Rule 1.17(c) |
| 1.5(b) | 4. Something other than the client's consent | The scope of the representation and the basis or rate of the fee and expenses: communicated to the client, preferably in writing, before or within a reasonable time after the work starts | "Preferably in writing" is not "must be in writing", and the rule asks for no consent | Rule 1.5(b) |
| CJC 2.11(C) | 4. Something other than the client's consent | Letting a disqualified judge sit: the judge discloses the basis on the record, and the parties and their lawyers, without the judge or court personnel, agree; the agreement goes into the record | Never for bias or prejudice under paragraph (A)(1) | CJC Rule 2.11(C) |
| 1.7(b)(1) to (3) | 5. Nothing cures it | A concurrent conflict where the lawyer cannot reasonably believe competent and diligent representation is possible, the representation is prohibited by law, or one client asserts a claim against another client of the lawyer in the same litigation or other proceeding before a tribunal | "Both clients signed" is a wrong answer | Rule 1.7(b)(1) to (3) |
| 1.5(d) | 5. Nothing cures it | A domestic relations fee contingent on securing a divorce or on the amount of alimony, support or a property settlement; a contingent fee for representing a criminal defendant | A contingent fee to collect support or alimony already ordered is allowed | Rule 1.5(d); Comment [6] |
| 1.8(c), (d), (e), (i) | 5. Nothing cures it | Soliciting or drafting a substantial gift to the lawyer; media rights before the representation ends; financial help to a client in litigation; a stake in the client's case | The exceptions are in the rule, not in consent: a gift where the lawyer is related to the client; court costs and litigation expenses; modest gifts for living costs to an indigent client represented pro bono; a lien; a reasonable contingent fee in a civil case | Rule 1.8(c), (d), (e), (i) |
| 1.8(j) | 5. Nothing cures it | Sexual relations with a client | Only a consensual sexual relationship that existed when the client-lawyer relationship began is exempt; consent given later does not help | Rule 1.8(j); Comments [20], [21] |
| 5.4(c), 5.6 | 5. Nothing cures it | Letting a person who pays for or recommends the lawyer direct the lawyer's judgment; an agreement restricting a lawyer's right to practice after leaving a firm, or as part of settling a client's case | Rule 5.6(a) excepts only an agreement concerning benefits upon retirement | Rule 5.4(c); Rule 5.6(a), (b) |
ROW EXAMPLES. One short case for each row of the table, in the same order.
- 1.6(a): After the lawyer explains the risks, a client says on the phone that she may send his medical records to his insurer, and that spoken informed consent is enough for her to reveal them.
- 1.2(c): A client agrees, after an explanation, that the lawyer will review a lease but not negotiate it, a reasonable limit that the client's spoken informed consent makes valid, while a limit that left the client with no real help would fail whatever the client said.
- 1.8(b): A lawyer who learns that a client plans to buy several plots of land may not buy one of them in competition with the client unless the client gives informed consent, which need not be in writing.
- 1.8(f): A father pays his adult son's defense fee, and the lawyer may accept it with the son's informed consent, spoken is enough, as long as the father does not direct the defense and the son's information stays protected.
- 2.3(b): At a company's request, its lawyer prepares an opinion on the company's finances for a lender, and she knows the honest opinion is likely to hurt the company's chances of the loan, so she may give it only with the company's informed consent, which may be spoken.
- 1.7(b)(4): Two business partners ask one lawyer to form their company, both agree after she explains the risks, and her email to each of them that evening confirming their consent satisfies the rule, though neither signs anything.
- 1.9(a), (b): A lawyer who drafted a supplier's contract may later sue that supplier over the same contract for a new client only if the supplier, her former client, gives informed consent, confirmed in writing.
- 1.10(c): One partner's conflict blocks the whole firm from a case, and the affected client may waive it, but only on Rule 1.7's terms: informed consent, confirmed in writing, and only for a conflict that Rule 1.7 lets a client waive.
- 1.11(a)(2), (d)(2)(i): A lawyer who ran an agency's case against a polluter joins a private firm, and she may represent the polluter in that same matter only if the agency gives informed consent, confirmed in writing, just as a private lawyer who joins the agency needs the agency's consent, confirmed in writing, to work on a matter she handled in private practice.
- 1.12(a): A retired judge who presided over a contract dispute may later represent the buyer in connection with that same dispute only if every party to the proceeding gives informed consent, confirmed in writing.
- 1.18(d)(1): A lawyer heard significantly harmful information from a prospective client in a consultation, so she may act for his opponent in the same matter only if both the opponent and the prospective client give informed consent, confirmed in writing.
- 1.5(e)(2): A referring lawyer who takes joint responsibility splits an hourly fee 30/70 with a trial lawyer at another firm, and the client must agree to those shares, but a confirming email from the lawyer is enough, with no client signature.
- 1.5(c): A client agrees on the phone to a one-third contingent fee, which is not enough, because the agreement must be in a writing signed by the client, and at the end the lawyer must give the client a written statement of the outcome.
- 1.8(a): A lawyer drafting a client's will lends her money for an unrelated expense, on fair terms set out in writing, advises her in writing to see another lawyer and gives her time to do so, and still violates the rule unless the client signs a writing consenting to the loan's essential terms and to the lawyer's role in it.
- 1.8(g): A lawyer settles the claims of three injured passengers in one deal, and each passenger must give informed consent in a writing he signs, after learning about all the claims and what every other passenger will receive.
- 4.2: A defendant who has a lawyer phones the plaintiff's lawyer and says she does not mind talking without her own lawyer, but the plaintiff's lawyer may discuss the case with her only if her lawyer consents or law or a court order authorizes it.
- 1.8(h)(1): A client signs an engagement letter, after full disclosure, agreeing that the lawyer will not be liable for malpractice above $10,000, and the cap is still forbidden because no independent lawyer represented the client in making that agreement.
- 1.8(h)(2): A lawyer who missed a filing deadline offers her unrepresented former client $5,000 to settle his claim against her, which is allowed only if she first advises him in writing to see an independent lawyer and gives him a reasonable chance to do so.
- 1.17(c): A selling lawyer sends each client written notice of the sale, of the right to choose another lawyer or take the file, and that consent to the transfer will be presumed after 90 days, so a client who never replies is treated as consenting to the transfer of his file.
- 1.5(b): A lawyer tells a new client on the phone what the work covers, that she charges $300 an hour, and which expenses the client will pay, which meets the rule, since the scope, the basis of the fee and the expenses need only be communicated, preferably in writing.
- CJC 2.11(C): A judge whose nephew is acting as a lawyer for the plaintiff discloses this on the record, and if the parties and their lawyers, conferring without her, all agree that she may sit, the agreement goes into the record and she may hear the case, which no agreement could allow if the ground were her bias against a party.
- 1.7(b)(1) to (3): A lawyer may not represent both the plaintiff and the defendant in the same lawsuit, even if both clients sign full written consents.
- 1.5(d): A lawyer may not defend a criminal case for a fee payable only on acquittal, or take a divorce case for a percentage of the alimony won, whatever the client signs, though a contingent fee to collect support a court has already ordered is allowed.
- 1.8(c), (d), (e), (i): A client's signed consent does not let a lawyer draft a will leaving herself a substantial gift when she is not related to the client, make a deal for the film rights to the case before the representation ends, lend a fee-paying client money for rent while the case is pending, or buy a share of the claim.
- 1.8(j): A lawyer who begins a sexual relationship with a divorce client during the case violates the rule even though the client freely agreed, while a couple already in a consensual sexual relationship when the representation began are exempt.
- 5.4(c), 5.6: An insurer paying a lawyer to defend its insured may not direct her judgment, and a firm may not make a departing partner promise never to practice in the city, except as a condition of retirement benefits, whatever anyone signs.
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