ALGI ERS AUSTI N DALLAS FORT W ORTH HOUSTON MACAÉ MONTERREY PARI S RI O DE JANEI RO VI TÓRI A Conflicts of I nterest: Conflicts of I nterest: How They Arise, How to Assert Them, and How to How They Arise, How to Assert Them, and How to Defend Them Defend Them Presented by Presented by Greg Curry Greg Curry Greg.Curry Greg.Curry@tklaw.Com @tklaw.Com 1
Overview Overview I dentifying the Conflict I dentifying the Conflict � � Preventing the Conflict Preventing the Conflict � � Raising the Conflict Raising the Conflict � � Protecting Against the Conflict Protecting Against the Conflict � �
Types of Conflicts Types of Conflicts
Traditional Conflict Traditional Conflict � TDRPC 1.09(a): TDRPC 1.09(a): � “a lawyer who personally has formerly represented a “a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another client in a matter shall not thereafter represent another person in a matter adverse to the former client: person in a matter adverse to the former client: . . . . . . (2) if the representation in reasonable probability will (2) if the representation in reasonable probability will involve a violation of Rule 1.05. involve a violation of Rule 1.05. (3) if it is the same of a substantially related matter. (3) if it is the same of a substantially related matter.
ALGI ERS AUSTI N DALLAS FORT W ORTH HOUSTON MACAÉ MONTERREY PARI S RI O DE JANEI RO VI TÓRI A Traditional Conflict Traditional Conflict � What is a “substantially related matter”? What is a “substantially related matter”? � � Two elements Two elements � An actual attorney- -client relationship between the moving client relationship between the moving An actual attorney � � party and the attorney to be disqualified; and party and the attorney to be disqualified; and A substantial relationship between the subject matter of A substantial relationship between the subject matter of � � the former and present representations the former and present representations See Abney v. Wal Abney v. Wal- -Mart Mart , 984 F.Supp. 526, 529 (E.D.Tex.1997) , 984 F.Supp. 526, 529 (E.D.Tex.1997) See 5
ALGI ERS AUSTI N DALLAS FORT W ORTH HOUSTON MACAÉ MONTERREY PARI S RI O DE JANEI RO VI TÓRI A Traditional Conflict Traditional Conflict � What does “substantial relationship” mean? What does “substantial relationship” mean? � Direct involvement such that the attorney had access to Direct involvement such that the attorney had access to � � material information concerning the matter material information concerning the matter Federal: Federal: � � Must show common subject matters, issues, and causes Must show common subject matters, issues, and causes � � of action that are substantially related between the two of action that are substantially related between the two matters matters See I n re American Airlines, I nc. , 972 F.2d 605, 614 (5th Cir. 1992). See I n re American Airlines, I nc. , 972 F.2d 605, 614 (5th Cir. 1992). 6
ALGI ERS AUSTI N DALLAS FORT W ORTH HOUSTON MACAÉ MONTERREY PARI S RI O DE JANEI RO VI TÓRI A Traditional Conflict Traditional Conflict State: State: � � Must show factual matters involved were so related to Must show factual matters involved were so related to � � the facts in the pending litigation that it creates a the facts in the pending litigation that it creates a genuine threat threat that confidences will be divulged that confidences will be divulged genuine Must produce evidence of specific similarities capable Must produce evidence of specific similarities capable � � of being recited in disqualification order of being recited in disqualification order No bar to representing a current client against a former No bar to representing a current client against a former � � client client See NCNB Texas Nat’l Bank v. Coker , 765 S.W.2d 398, 400 See NCNB Texas Nat’l Bank v. Coker , 765 S.W.2d 398, 400 (Tex.1989). (Tex.1989). 7
ALGI ERS AUSTI N DALLAS FORT W ORTH HOUSTON MACAÉ MONTERREY PARI S RI O DE JANEI RO VI TÓRI A Traditional Conflict Traditional Conflict Once a “substantial relationship” is found, an irrebuttable Once a “substantial relationship” is found, an irrebuttable � � presumption is created presumption is created I rrebuttable presumption is that confidences were I rrebuttable presumption is that confidences were � � disclosed during the former representation disclosed during the former representation Must show factual matters involved were so related to Must show factual matters involved were so related to � � the facts in the pending litigation that it creates a the facts in the pending litigation that it creates a genuine threat threat that confidences will be divulged that confidences will be divulged genuine Must produce evidence of specific similarities capable Must produce evidence of specific similarities capable � � of being recited in disqualification order of being recited in disqualification order See NCNB Texas Nat’l Bank v. Coker , 765 S.W.2d 398, , 765 S.W.2d 398, See NCNB Texas Nat’l Bank v. Coker 400 (Tex.1989). 400 (Tex.1989). 8
ALGI ERS AUSTI N DALLAS FORT W ORTH HOUSTON MACAÉ MONTERREY PARI S RI O DE JANEI RO VI TÓRI A Traditional Conflict Traditional Conflict � Absence of “substantial relationship” does not prevent Absence of “substantial relationship” does not prevent � disqualification disqualification Must identify disclosures made to former attorney Must identify disclosures made to former attorney � � Must show substantive conversations between former Must show substantive conversations between former � � client and the attorney that contained information client and the attorney that contained information relevant to the present litigation relevant to the present litigation See Abney See Abney , 984 F.Supp. at 530. , 984 F.Supp. at 530. 9
ALGI ERS AUSTI N DALLAS FORT W ORTH HOUSTON MACAÉ MONTERREY PARI S RI O DE JANEI RO VI TÓRI A Multiple Representation Multiple Representation � TDRPC 1.06(a): TDRPC 1.06(a): � A lawyer may not represent opposing parties in the A lawyer may not represent opposing parties in the same litigation, whether or not the parties consent to same litigation, whether or not the parties consent to the representation the representation 10
ALGI ERS AUSTI N DALLAS FORT W ORTH HOUSTON MACAÉ MONTERREY PARI S RI O DE JANEI RO VI TÓRI A Multiple Representation Multiple Representation � What are “opposing parties”? What are “opposing parties”? � � A judgment favorable to one will have a direct and A judgment favorable to one will have a direct and � unfavorable impact on the other unfavorable impact on the other � Parties on opposite sides of a single transaction Parties on opposite sides of a single transaction � 11
ALGI ERS AUSTI N DALLAS FORT W ORTH HOUSTON MACAÉ MONTERREY PARI S RI O DE JANEI RO VI TÓRI A Multiple Representation Multiple Representation � What are “opposing parties”? What are “opposing parties”? � � A judgment favorable to one will have a direct and A judgment favorable to one will have a direct and � unfavorable impact on the other unfavorable impact on the other � Parties on opposite sides of a single transaction Parties on opposite sides of a single transaction � 12
ALGI ERS AUSTI N DALLAS FORT W ORTH HOUSTON MACAÉ MONTERREY PARI S RI O DE JANEI RO VI TÓRI A Disputes Arising Out of Prior Matters Disputes Arising Out of Prior Matters � TDRPC 1.06(d): TDRPC 1.06(d): � I f a lawyer in the firm has represented multiple parties I f a lawyer in the firm has represented multiple parties in a matter or transactions, the lawyer will not in a matter or transactions, the lawyer will not represent any of the parties in a dispute among the represent any of the parties in a dispute among the parties subsequently arising out of the matter parties subsequently arising out of the matter Exception: prior written consent obtained from all Exception: prior written consent obtained from all parties parties 13
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