1. The Westinghouse case was very complicated. One initial issue that it introduces, which we will deal with in greater detail later, is imputed conflicts. How can the relationship between the Washington office of Kirkland & Ellis (K&E) and certain clients have any effect on the clients that might be taken on by K&E's Chicago office? Shouldn't a Chinese Wall be enough to solve the problem?
2. The second issue brought up by the Westinghouse case is one of positional conflicts, in which one argues contrary positions on behalf of clients that are not directly adverse. Consider the following cases.
a. You represent a number of California banks. A, who obtained a loan from bank B, which you do 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 bank clients to important losses. What do you do?b. You find yourself arguing before one district judge in the Northern District of Illinois, on behalf of client A, that a particular statute is unconstitutional. The next day you find yourself arguing before another district court judge in the Northern District of Illinois, on behalf of client B, that the same statute is constitutional. Is there a conflicts problem? Can it be cured by client consent? What if both cases are appealed to the 7th Circuit and are pending at the same time?
4. The final issue brought up by Westinghouse is the question of who one's client is for conflicts purposes. What exactly led K&E to have a duty to the three oil companies (Getty, Gulf and Kerr-McGee)? Is the 7th Circuit saying that the three oil companies were indeed K&E's clients? Would that mean that K&E would have to get Getty's consent if it wanted to bring a suit by the owner of an oil well against Getty for breach of contract?
5. How was K&E supposed to uncover the conflict? The partner who opened the AmPI affair, Frederick Rowe, sent a memo around indicating that K&E was undertaking to represent AmPI, but no lawyer at K&E who represented Westinghouse recognized a conflict, because Getty, Gulf and Kerr-McGee were not mentioned. Rowe was subsequently forced to resign from a position of firm leadership on the threat of expulsion from the partnership. What could he have done to have discovered the conflict?
6. Is the Fiandaca case one of direct adversity or the possibility of material limitation? Is it a case of a positional conflict?
7. Are conflicts problems of the sort encountered by NHLA in the Fiandaca case more likely to arise in the context of public interest litigation? Is it fair to submit public interest law firms to the same conflicts rules as those representing private disputes?
8. Imagine that the state had offered the the female prisoners the site that was used by mentally retarded patients in part to generate a conflict. Would that matter as long as site was indeed an appropriate place to house the women prisoners?