conflict of interest nj attorney when nonattorny employee of firm

What are the conflicts of interest in a lawyer?

There are a variety of conflicts of interest that can prevent a lawyer from taking on a particular case. The conflict may occur between the prospective client and one of the attorney's current or former clients. There can also be concerns if a client's interests are in conflict with the lawyer's professional or personal relationships.

What are the duties of a lawyer?

In the legal field, however, one of the legal duties every lawyer must observe is to avoid conflicts of interest when it comes to their clients. In fact, if a lawyer represents a client knowing that there's a conflict of interest, they can be disciplined by the state bar and sued by the client for legal malpractice.

Do attorneys have to do conflict checks?

While an attorney may be able to easily identify a conflict, sometimes they're not always easy to spot. Because of this, it's the attorney's responsibility to perform regular conflict checks when taking on a new client.

Can an attorney answer questions about conflicts of interest?

An attorney can not only answer any questions you may have about the scope of an attorney's obligations to their client, they can also answer other questions you may have about the law.

Can conflict of interest be a real problem?

Conflicts of interest can occur in a number of real-life situations. While these may be ethical dilemmas, acting one way or another will not likely lead to any kind of formal punishment. For example, if a business executive is her son's direct manager, there will likely be a conflict of interest when she has to conduct a performance review of her son's work. This might create a problem for the company and lead to policy changes, but it wouldn't necessarily violate any laws.

Can a law firm represent a client?

It's also important to note that a law firm may be able to represent a client even though a single attorney had a conflict of interest, if a "firewall" can be successfully put around the attorney with the conflict. This essentially means that the matter would not be discussed with or around the attorney with the conflict, ...

Can a conflict of interest occur at the law firm level?

It's also possible for there to be an issue if the potential client's interests are at odds with the attorney's own interests. A conflict of interest can also occur at the law firm level. For example, even if an attorney working at a law firm didn't personally work on a particular matter (because someone else at the firm handled it), ...

How to identify conflicts of interest?

Many firms will choose to use a written application that inquires about the candidate’s prior legal employment, relationships with attorneys and legal experience. The hiring firm can then take that list of law firms or attorneys and run through the firm’s conflict system just as they would for a lateral attorney hire . If the conflicts system reveals that the prospective nonattorney staff hire has worked for, has experience with or is related to counsel involved with matters involving clients of the firm, then the hiring firm can conduct further inquiry.

What happened after the paralegal started working at the hiring firm?

After the paralegal began working at the hiring firm, she learned that the hiring firm worked on the same matter in which her former firm was also involved, and she disclosed it internally. Immediately upon learning of the potential conflict, the hiring law firm implemented ethics screens to protect against the disclosure of any confidential information the paralegal had learned at the former law firm. Approximately two months later, the hiring law firm notified the former law firm of the potential conflict. The former firm filed a motion to disqualify the hiring firm from the case.

What did the Georgia Supreme Court say about the hiring law firm in Hodge?

In Hodge, the Georgia Supreme Court found that the hiring law firm “implemented effective screening measures as soon as” it learned of the conflict to ensure that the paralegal “would not disclose confidential information” and had “not actually disclosed such confidential information.” Because the court approved of the screening techniques adopted by the hiring firm in Hodge, they can be instructive for law firms reviewing how to establish an effective screen.

What happens when a paralegal moves to a new law firm?

When that paralegal moves to a new law firm, the paralegal’s prior work on other matters could create conflicts of interest for the new law firm. Not all law firms treat these issues with the seriousness they may deserve. The consequences of such omissions can be serious, but they are avoidable.

What to do when learning of a potential conflict?

Upon learning of a potential conflict, even involving nonattorney staff, firms in this situation may consider giving prompt notice in writing and describe in detail the conflict and the screening measures that have been or will be implemented upon hiring.

What is the legal basis for processing personal information?

Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6 (1) (f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6 (1) (c)) or for reasons of public interest (GDPR Article 6 (1) (e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.

Why is the screening technique adopted by the hiring firm in Hodge instructive?

Because the court approved of the screening techniques adopted by the hiring firm in Hodge, they can be instructive for law firms reviewing how to establish an effective screen. To avoid a potential conflict in the case, the hiring law firm in Hodge:

Which court has held that the same reasonableness standard should govern attorney-misconduct cases?

Further, the New Jersey Supreme Court has held that “the same reasonableness standard [set out in Saffer] should govern attorney-misconduct cases.” Packard, supra, 167 N.J. at 444. [3]

What is the issue in Straubinger v. Straubinger?

In Straubinger, the issue was “the proper apportionment of a contingent fee between two firms which succeeded one another during the course of a client’s case , the first of which firms had potential conflicts of interest arising out of its representation of another client in the same case.” Id., at 501. “The [trial] judge concluded [one firm] had done the bulk of the work on the case and thus awarded [that firm] two-thirds of the [] fee and [the other firm] one-third.” Id., at 500.

What is the role of the Superior Court in a dispute over counsel fees?

The Superior court observed that its “role is to resolve the counsel fee dispute and to consider and weigh any violations of the RPCs which may impact on the award of counsel fees.” Id., at 502. The court further held that “ [i]n the case of violations of the RPCs which materially affect the value of the services to the client, there should be no hesitancy to deny fees.” Id., at 504. Also, “ [t]he determination is a fact sensitive one requiring weighing the nature and extent of the violation against the value of the services rendered and reflecting those considerations in the award.” Id. The court added that “ [s]ince, in addition to work performed, the result achieved is a factor in considering an award of fees, RPC 1.5 (a) (4), we conclude that the nature and length of [the firm’s] conflict should be a significant determinant of the amount to which [the firm] is entitled. Id., at 505.

What is a condition of continuing representation?

Further, “ [a] condition of [continuing] representation, however, is that it is to be furnished without compensation for any services to be rendered henceforth, particularly including any services in connection with trial or other final disposition of the matter.” Id. Additionally, “ [the firm] will be entitled to a fee for services performed up to the date of this opinion, calculated on any reasonable basis … So much of the balance as would ordinarily be included in that firm’s fee will be retained by plaintiff.” Id. at 220.

What was the case in Dewey v. Reynolds?

In Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 218 (1988), a case involving conflict of interest , the plaintiff was allowed to retain “ [s]o much of the balance as would ordinarily be included in that firm’s fee.” Id., at 220.

What is the duty of loyalty to a lawyer?

The Supreme Court of New Jersey has held that “ [o]ne of the most basic responsibilities incumbent on a lawyer is the duty of loyalty to his or her clients. From that duty issues the prohibition against representing clients with conflicting interests.”.

Can an aggrieved party retain fees?

Therefore, in the instant case, the aggrieved party may be entitled to retain the fees should they succeed in an action for professional misconduct. The aggrieved party does not, however, have the right to engage in self-help and merely retain the fees due without seeking such relief in court.

What is a conflict of interest in an attorney?

Perhaps the clearest and most common attorney conflicts of interest is when an attorney is asked to represent one client who has an adverse interest to another client. For instance, an attorney cannot normally represent both the buyer and a seller of real property in most circumstances because the buyer and seller have adverse interest to a transaction. Moreover, an attorney cannot normally represent both a plaintiff and a defendant in litigation since an attorney usually cannot represent a client who is making a claim against another client.

What are the rules of professional conduct?

The rules of professional conduct include all of the ethical guidelines that attorneys must follow when providing services to a client. The rules of professional conduct require attorneys to refuse a representation or withdraw from an active representation if a conflict of interest arises. The duty of loyalty is paramount in the legal profession, and attorneys cannot provide services if the representation will be limited by a conflict, except with informed consent in writing signed by the client in certain circumstances. There are some common attorney conflicts of interest that often arise in the course of a legal representation.

What is Rothman Law Firm?

The Rothman Law Firm is experienced at handling and resolving all types of common attorney conflicts of interest issues. If you have a question about attorney ethics, or wish to have an experienced New York and New Jersey lawyer review an issue that may involve conflict of interest, please feel free to contact to The Rothman Law Firm to request a free consultation.

Can an attorney represent two defendants?

Sometimes, it is more difficult to determine if there is direct adversity in a situation. For instance, an attorney may be asked to represent two defendants who are involved with litigation, which is normally permitted. However, if defendants have claims against each other, this may preclude the lawyer from accepting the representation. Moreover, even representing members of the same family or a business organization can be restricted because of the claims that individuals may have against each other. An experienced lawyer should be able to evaluate a situation and determine if a conflict of interest presently exists or may arise in the future so that the attorney can act accordingly.

Can a lawyer waive a conflict of interest?

Such waivers generally must inform the clients of the potential conflict of interest, that each client is capable of retaining other counsel, and that they still choose to be represented by the conflicted lawyer despite the potential conflict of interest. Conflicts of interest can only be used in certain situations, and if a reasonable attorney would be impacted by the representation, they cannot use a conflict-of-interest waiver. An experienced lawyer should know when a conflict-of-interest waiver may be used in certain situations, and such a waiver may reduce costs and decrease practical issues with representation.

Who informs the appropriate professional authority of a lawyer who has committed a violation of the Rules of Professional Conduct?

A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

What is a lawyer in RPC 4.2?

A lawyer employed or retained to represent an organization represents the organization as distinct from its directors, officers, employees, members, shareholders or other constituents. For the purposes of RPC 4.2 and 4.3, however, the organization's lawyer shall be deemed to represent not only the organizational entity but also the members of its litigation control group. Members of the litigation control group shall be deemed to include current agents and employees responsible for, or significantly involved in, the determination of the organization's legal position in the matter whether or not in litigation, provided, however, that "significant involvement" requires involvement greater, and other than, the supplying of factual information or data respecting the matter. Former agents and employees who were members of the litigation control group shall presumptively be deemed to be represented in the matter by the organization's lawyer but may at any time disavow said representation.

What is reasonable diligence in representing a client?

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter, including members of an organization's litigation control group as defined by RPC 1.13, unless the lawyer has the consent of the other lawyer, or is authorized by law or court order to do so, or unless the sole purpose of the communication is to ascertain whether the person is in fact represented. Reasonable diligence shall include, but not be limited to, a specific inquiry of the person as to whether that person is represented by counsel. Nothing in this rule shall, however, preclude a lawyer from counseling or representing a member or former member of an organization's litigation control group who seeks independent legal advice.

What is the duty of a lawyer to expedite litigation?

lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client and shall treat with courtesy and consideration all persons involved in the legal process.

What does "not bring or defend" mean?

lawyer shall not bring or defend a proceeding, nor assert or controvert an issue therein unless the lawyer knows or reasonably believes that there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law, or the establishment of new law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

What is the role of a lawyer in a client?

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations, such as moral, economic, social and political facts, that may be relevant to the client's situation.

How long do lawyers keep property in New Jersey?

Funds of the lawyer that are reasonably sufficient to pay bank charges may, however, be deposited therein. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of seven years after the event that they record.

Consider Conflicts During The Hiring Process

• It is generally easiest to identify potential conflicts of interest prior to the actual hiring of nonattorney staff. Many firms will choose to use a written application that inquires about the candidate’s prior legal employment, relationships with attorneys and legal experience. The hiring firm can then take that list of law firms or attorneys and ...

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