Study Questions on Conflicts Involving Past Clients
1. Last year you represented P1, who sued D Airlines concerning a plane crash in which P1 was injured. This year you are considering representing P2 in her suit against D Airlines concerning her damages from the same crash. Any conflicts problems?
2. Last year you drafted a prospectus for a debt offering for A. This year B approaches you and asks you to sue A for fraud in connection with the debt offering. Any conflicts problems? If A consents, may your represent B?
3. Last year, you represented a number of California banks. A, who obtained a loan from bank B, which you did not represent, wants you to bring suit against B on the grounds that B violated federal law concerning the disclosure of interests on loans. The legal issue raised by A’s case is a novel one. If you win, the precedent could submit your former bank clients to important losses. Any conflicts problems?
4. You represented A in connection with the incorporation of his small business last year. This year A’s wife approaches you and asks you to represent her in divorce proceedings against A. Any conflicts problems?
5. You were corporate counsel for the A Corp. from 1996-98. Since then a new board of directors has gained control. B approaches you and asks you to represent him in a suit against members of the board concerning actions they undertook after you left. Any conflicts problems?
6. You have defended the A Corp. in employment discrimination suits brought against it from 1978-98. This year B approaches you and asks you to bring an employment discrimination suit against the A Corp. concerning actions by the corporation that occurred after you terminated your relationship with it. Any conflicts problems?
7. You unsuccessfully defend A in criminal charges. Afterward the prosecutor in the case approaches you and asks you to bringing a high profile product liability action on his behalf against the D Corp. Any conflicts problems?
8. Last year you helped the A Corp. obtain a patent for a product. The patent was subsequently assigned to the B Corp. The B Corp. then sued the C Corp. for infringement of the patent. The C Corp. hires you to argue that the patent that you helped obtain is invalid. Any conflicts problems?
Questions on Brennan's
1. Is the court in Brennan’s saying that disqualification
of Wegmann is necessary in order to keep client confidences from being revealed
to the defendants? Or is the court saying that disqualification is
necessary in order to enforce Wegmann’s duty of loyalty to his former client,
a duty that is independent of the duty of confidentiality?
2. If you think that the court’s reasoning in Brennan’s is that disqualification is necessary to protect client confidences, consider the following case. A husband and wife retain you to draft up their estate plans for their child. The wife tells you in confidence that the child is not the husband’s, but the result of an early affair. She requests that you keep this fact quiet. The next day the two decide to get a divorce and the husband requests that you represent him in child custody proceedings. The wife makes a motion to disqualify you. She succeeds. The husband nevertheless calls you to the stand as a witness to testify about the wife’s conversations with you. Can you keep silent about the conversations?
3. The court claims that if Wegmann were counsel for both the plaintiffs and defendants, then it would clearly follow that Sprung should not be disqualified, since there would be no confidentiality worries. Hasn’t the court simply made the mistake of confusing the duty of confidentiality with the attorney-client privilege that it accused the defendants of making?