Confidentiality and Conflicts of Interest

Master confidentiality and conflicts of interest with free flashcards and spaced repetition practice. This lesson covers the duty of confidentiality, attorney-client privilege, current and former client conflicts, imputation rules, and conflict waivers—essential concepts for passing the MPRE and understanding professional responsibility.

Welcome 🏛️

Confidentiality and conflicts of interest form the ethical backbone of legal practice. These rules protect clients, preserve the integrity of the legal system, and prevent lawyers from compromising their professional judgment. The MPRE tests these concepts extensively because they arise in virtually every attorney-client relationship.

This lesson builds on your understanding of the client-lawyer relationship by exploring when lawyers must keep secrets, when they may (or must) reveal them, and when competing interests prevent effective representation. You'll learn to navigate complex scenarios involving multiple clients, business dealings, and loyalty obligations that extend beyond active representation.

Core Concepts: The Duty of Confidentiality 🔒

Scope and Foundation

The duty of confidentiality under Model Rule 1.6 is broader and more protective than the evidentiary attorney-client privilege. While the privilege only protects communications between lawyer and client made for legal advice, the duty of confidentiality covers all information relating to the representation, regardless of its source.

💡 Key Point: A lawyer cannot reveal that someone is even their client without permission if that fact relates to the representation and is not generally known.

Duration: Forever (With Rare Exceptions)

The duty of confidentiality survives the end of the representation and even the client's death. Former clients deserve the same protection as current clients regarding information learned during the representation. This creates a perpetual obligation that follows lawyers throughout their careers.

Exceptions: When Disclosure is Permitted or Required

Model Rule 1.6 contains carefully circumscribed exceptions where lawyers may (not must) disclose confidential information:

DISCLOSURE DECISION TREE

    Does situation fit exception?
           |
      ┌────┴────┐
     No        Yes
      |          |
      ↓          ↓
   ❌ CANNOT  May lawyer
    DISCLOSE  disclose?
                |
           ┌────┴────┐
          May       Must
           |          |
           ↓          ↓
      Lawyer's    Required by
      discretion  law/court order

1. Preventing Death or Substantial Bodily Harm

A lawyer may reveal confidential information to prevent reasonably certain death or substantial bodily harm. This is the broadest exception and applies whether the harm results from criminal or non-criminal conduct.

Example: Client tells lawyer he plans to drive home drunk tonight. Lawyer may (but is not required to) contact police or the client's family.

2. Preventing Crime or Fraud Involving Lawyer's Services

When a client is using or has used the lawyer's services to commit a crime or fraud that will cause substantial financial harm, the lawyer may reveal information to prevent or mitigate the harm. This often arises in transactional practice.

Example: Lawyer drafted documents client is now using in a Ponzi scheme. Lawyer may disclose to potential victims or authorities.

3. Securing Legal Advice About Ethics

Lawyers may reveal confidential information when seeking advice about their own compliance with ethics rules. This allows consultation with ethics counsel or disciplinary authorities.

4. Self-Defense Exception

When a client sues the lawyer (malpractice), files a disciplinary complaint, or disputes fees, the lawyer may reveal confidential information necessary to defend themselves. This exception is limited to what's needed for the defense.

5. Complying with Court Orders or Other Law

When a court orders disclosure or another law requires it, the lawyer may (and often must) comply. However, the lawyer should first seek protective orders or challenge improper demands.

⚠️ Common Mistake: Students often think lawyers must disclose to prevent harm. In most jurisdictions following the Model Rules, disclosure is permissive, not mandatory (except when required by court order or other law).

Attorney-Client Privilege vs. Ethical Duty 🆚

Many students confuse these two related but distinct concepts:

Feature	Attorney-Client Privilege	Duty of Confidentiality
Source	Evidence law	Ethics rules (Model Rule 1.6)
Scope	Communications between lawyer and client for legal advice	ALL information relating to representation
Purpose	Protects from compelled disclosure in legal proceedings	Prevents voluntary disclosure by lawyer
Who holds it?	Client (client can waive)	Lawyer's ethical obligation
Duration	Survives client's death (passes to estate)	Survives representation ending and client's death

💡 Memory Device: Think PRIVILEGE = COURTROOM (narrow, evidentiary) vs. CONFIDENTIALITY = EVERYWHERE (broad, ethical)

Current Client Conflicts of Interest ⚖️

Model Rule 1.7 prohibits representing a client if the representation involves a concurrent conflict of interest. This occurs in two situations:

Type 1: Directly Adverse Representation

A lawyer cannot represent Client A directly adverse to Client B whom the lawyer also represents, even in unrelated matters.

❌ PROHIBITED: DIRECTLY ADVERSE CONFLICT

    Lawyer represents:
    
    Client A ──────────────── Client B
      (Plaintiff)   vs.    (Defendant)
         
         Same lawyer cannot be
         on both sides!

Example: Lawyer represents Company A in trademark matters. Company A now wants to sue Company B (another client of the lawyer) for breach of contract. Even though the matters are unrelated, the representation is directly adverse and prohibited.

Exception: Representing both sides in transactional matters (like mediation) may be permitted with informed consent if not prohibited by law.

Type 2: Materially Limited Representation

A conflict exists if there is a significant risk that the representation will be materially limited by:

• The lawyer's responsibilities to another client
• A former client
• A third person
• The lawyer's own interests

Example: Lawyer represents two co-defendants in a criminal case. If their defenses become antagonistic (one wants to blame the other), the lawyer's ability to represent both is materially limited.

The Four-Part Conflict Waiver Test

Some conflicts can be waived through informed consent, confirmed in writing. A lawyer may proceed despite a conflict only if:

1. ✅ The lawyer reasonably believes they can provide competent and diligent representation to each affected client
2. ✅ The representation is not prohibited by law (e.g., representing both sides in litigation is often prohibited)
3. ✅ The representation does not involve asserting a claim by one client against another in the same litigation or proceeding
4. ✅ Each affected client gives informed consent, confirmed in writing

💡 "Informed consent" means the client understands the material risks and available alternatives. The lawyer must explain how the conflict could adversely affect the client and get the client's agreement.

Former Client Conflicts 📜

Model Rule 1.9 protects former clients from conflicts. A lawyer who formerly represented a client cannot represent another person in a matter that is the same or substantially related to the former representation if the new client's interests are materially adverse to the former client's interests.

FORMER CLIENT CONFLICT ANALYSIS

┌─────────────────────────────────────┐
│ Is new matter substantially         │
│ related to former representation?   │
└──────────────┬──────────────────────┘
               |
          ┌────┴────┐
         No        Yes
          |          |
          ↓          ↓
    ✅ No conflict  Are new client's
                    interests materially
                    adverse to former client?
                          |
                     ┌────┴────┐
                    No        Yes
                     |          |
                     ↓          ↓
               ✅ No conflict  ❌ CONFLICT
                              (may be waivable)

"Substantially related" means there is a substantial risk that confidential information from the former representation would materially advance the new client's position or damage the former client.

Example: Lawyer represented Husband in divorce, learning about hidden assets. Lawyer cannot later represent Wife in a dispute over those same assets—the matters are substantially related.

The "Playbook" Problem

Even if specific confidential information isn't at issue, substantial relationship exists when the lawyer has general knowledge that could be used against the former client.

Example: Lawyer spent three years as in-house counsel for Tech Company, learning its business strategies. Lawyer cannot later represent Competitor in a patent dispute against Tech Company—the lawyer has the "playbook."

Imputation of Conflicts 🏢

Under Model Rule 1.10, when one lawyer in a firm has a conflict, that conflict is generally imputed (attributed) to all other lawyers in the firm. This prevents end-runs around conflict rules.

IMPUTATION: ONE LAWYER'S CONFLICT = FIRM'S CONFLICT

         Law Firm Partnership
    ┌──────────────────────────────┐
    │  Lawyer A   Lawyer B         │
    │     ❌         ❌            │
    │  (has conflict) (imputed)    │
    │                              │
    │  Lawyer C   Lawyer D         │
    │     ❌         ❌            │
    │  (imputed)  (imputed)        │
    └──────────────────────────────┘
         
    If ONE lawyer cannot represent
    client due to conflict, ENTIRE
    firm is generally disqualified.

Exception: Screening for Former Client Conflicts

When a lawyer moves to a new firm and brings former client conflicts, the new firm may avoid imputation through screening (also called an "ethical wall") if:

1. The personally disqualified lawyer is timely screened and receives no fees from the matter
2. Written notice is promptly given to the affected former client
3. The screened lawyer does not share confidential information

💡 Screening requirements:

• Physical separation (different floor, office)
• Document access restrictions
• Written policies and procedures
• No discussion of the matter
• No sharing of fees from that matter

⚠️ Important: Screening generally does NOT work for current client conflicts—only former client conflicts when a lawyer moves firms.

Specific Conflict Rules: When Personal Interests Create Conflicts 💰

Business Transactions with Clients (Rule 1.8(a))

Lawyers entering business transactions with clients face strict requirements because of the inherent conflict between the lawyer's personal financial interests and duties to the client:

1. The transaction must be fair and reasonable to the client
2. Terms must be fully disclosed in writing in a manner the client can understand
3. Client must be advised in writing of the desirability of seeking independent legal counsel
4. Client must give informed consent in writing

Example: Lawyer wants to invest in Client's startup. Lawyer must provide written disclosure of all terms, advise Client to get another lawyer's opinion about the deal, and get Client's written consent.

Gifts from Clients (Rule 1.8(c))

A lawyer cannot solicit a substantial gift from a client or prepare an instrument (like a will) giving the lawyer a substantial gift, unless the lawyer is related to the client.

❌ Prohibited: Lawyer suggests to elderly client that client leave lawyer $50,000 in her will ✅ Permitted: Lawyer's mother wants to leave lawyer money in her will, and lawyer drafts the will

Exception: Simple gifts of modest value (like a holiday gift) are acceptable.

Literary Rights (Rule 1.8(d))

Before conclusion of representation, a lawyer cannot acquire literary or media rights based on the representation. This prevents the lawyer from having an incentive to sensationalize the case or prolong representation for a better story.

Example: Criminal defense lawyer cannot negotiate book deal about the case until representation fully concludes (including appeals).

Financial Assistance to Clients (Rule 1.8(e))

Lawyers generally cannot provide financial assistance to clients, with three exceptions:

1. ✅ Lawyer may advance court costs and expenses (filing fees, expert fees, depositions), with repayment contingent on outcome
2. ✅ Lawyer representing indigent client may pay court costs and expenses outright
3. ❌ Lawyer generally cannot provide living expenses, loans, or other financial support

💡 Rationale: Prevents lawyers from acquiring a financial stake in the outcome that could impair judgment.

Sexual Relations with Clients (Rule 1.8(j))

A lawyer cannot have sexual relations with a client unless a consensual sexual relationship existed before the client-lawyer relationship began.

⚠️ Why this rule exists: Power imbalance, potential exploitation, clouded judgment, risk of coercion claims.

Example: Lawyer handling client's divorce cannot begin dating the client during the representation, even if "consensual."

Example Scenarios 🎯

Example 1: The Confidential Threat

Scenario: Client tells his lawyer, "I'm so angry at my business partner, I'm going to burn down his house next week." Client has a history of impulsive behavior. What may the lawyer do?

Analysis: This falls under the preventing death or substantial bodily harm exception to confidentiality. Arson poses a risk of death or serious injury. The lawyer may (but is not required to) disclose the threat to:

• The intended victim (business partner)
• Police or fire department
• Others who could prevent the harm

Key Point: The harm must be reasonably certain—vague threats or unlikely scenarios don't qualify. Here, the specific plan and client's history suggest reasonable certainty.

Example 2: The Conflicted Representation

Scenario: Attorney represents Company A in employment matters. Company B, another client, wants Attorney to sue Company A for breach of contract related to a supply agreement (unrelated to employment). Can Attorney take the case?

Analysis: This is a directly adverse conflict under Rule 1.7(a)(1). Even though the matters are unrelated, Attorney cannot sue one current client on behalf of another current client. The representation is directly adverse.

Resolution Options:

1. Decline to represent Company B in the lawsuit
2. Withdraw from representing Company A (if ethically permissible and not harmful to A)
3. Seek informed consent from both (unlikely to work for directly adverse litigation)

Best answer: Attorney should decline the new matter from Company B or refer it to another firm.

Example 3: The Former Client Problem

Scenario: Lawyer represented Wife in divorce five years ago, learning that Husband had offshore accounts. Husband now wants Lawyer to represent him in an unrelated real estate transaction. May Lawyer do so?

Analysis: Apply the former client conflict test:

1. Is new matter substantially related? No—real estate transaction is unrelated to divorce
2. Are interests materially adverse? No—Lawyer would be helping Husband, not opposing him

Conclusion: No conflict exists. The matters aren't substantially related, and there's no adversity. However, Lawyer should consider whether Wife's confidential information (offshore accounts) could somehow become relevant.

Better practice: Get Wife's informed consent anyway, or simply decline if uncomfortable.

Example 4: The Imputation Question

Scenario: Lawyer A at Big Firm represented Plaintiff Corp in patent litigation against Defendant Corp. Lawyer A leaves Big Firm and joins Small Firm. Defendant Corp now wants Small Firm to represent it in a trademark matter against an unrelated third party. Small Firm wants to accept. What must happen?

Analysis: Lawyer A has a former client conflict (Plaintiff Corp). This conflict is imputed to all lawyers at Small Firm. However, screening can cure imputation for former client conflicts:

Requirements:

1. Small Firm must screen Lawyer A from the Defendant Corp matter
2. Lawyer A cannot share in fees from that matter
3. Small Firm must provide written notice to Plaintiff Corp
4. Screening must be implemented before representation begins

Conclusion: Small Firm may represent Defendant Corp if proper screening is implemented and notice given.

Common Mistakes to Avoid ⚠️

Mistake #1: Confusing Privilege with Confidentiality

❌ Wrong thinking: "The attorney-client privilege protects everything my client tells me."

✅ Correct: The privilege is narrower (communications for legal advice). The duty of confidentiality is broader (all information relating to representation). Know the difference!

Mistake #2: Thinking Exceptions are Mandatory

❌ Wrong thinking: "If my client threatens harm, I must report it."

✅ Correct: Under Model Rules, most exceptions to confidentiality are permissive (may disclose), not mandatory (must disclose). Lawyers have discretion whether to reveal.

Exception: When a law or court order requires disclosure, it becomes mandatory.

Mistake #3: Ignoring Substantial Relationship

❌ Wrong thinking: "I can represent Competitor against my former client because I won't use any specific secrets."

✅ Correct: Even general knowledge of the former client's strategies, weaknesses, or approach can create a "substantially related" matter. The playbook problem is real.

Mistake #4: Believing Consent Cures Everything

❌ Wrong thinking: "As long as both clients consent, I can represent them both in litigation against each other."

✅ Correct: Some conflicts are non-consentable—even with informed consent, they cannot be waived. Representing opposing parties in the same litigation is typically non-consentable.

Mistake #5: Forgetting Imputation

❌ Wrong thinking: "I have a conflict, but my partner can handle the matter."

✅ Correct: Conflicts are generally imputed firm-wide. Your partner has the same conflict unless screening applies (and screening only works in limited circumstances—mainly former client conflicts after lawyer mobility).

Mistake #6: Accepting Gifts Without Thinking

❌ Wrong thinking: "My grateful client wants to give me $10,000 as a thank-you gift. That's fine!"

✅ Correct: Soliciting or accepting substantial gifts (or preparing instruments giving lawyer gifts) violates Rule 1.8(c) unless the client is a relative. Politely decline or suggest the client consult independent counsel first.

Key Takeaways 🎓

1. Confidentiality is broader than privilege: Duty of confidentiality covers all information relating to representation; privilege only protects certain communications.

2. Confidentiality is usually perpetual: The duty survives the end of representation and even the client's death.

3. Exceptions are mostly permissive: Under Model Rules, lawyers generally may (not must) disclose to prevent death/harm or crime/fraud involving their services.

4. Two types of current client conflicts: Directly adverse representation and materially limited representation.

5. Four-part waiver test: Reasonable belief in competent representation + not prohibited by law + not adverse in same proceeding + informed consent in writing.

6. Former client conflicts require substantial relationship + material adversity: Both elements must be present.

7. Imputation is the default: One lawyer's conflict becomes the entire firm's conflict, with limited exceptions.

8. Screening works for former client conflicts: When lawyers move firms, screening can prevent imputation of former client conflicts.

9. Rule 1.8 prohibits specific self-interested transactions: Business deals, gifts, literary rights, financial assistance, and sexual relations with clients are heavily restricted.

10. Written consent is crucial: Most conflict waivers require informed consent "confirmed in writing"—get it in writing!

📚 Further Study

For deeper understanding of these critical topics, explore:

• ABA Model Rules of Professional Conduct: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/ (official text and comments)
• NCBE MPRE Information: https://www.ncbex.org/exams/mpre/ (official exam content outline and sample questions)
• ABA Formal Ethics Opinions: https://www.americanbar.org/groups/professional_responsibility/publications/aba_formal_ethics_opinions/ (detailed analyses of specific ethical dilemmas)

These resources provide authoritative guidance and real-world applications of confidentiality and conflict rules that appear frequently on the MPRE.