Multistate Professional Responsibility Examination (MPRE) Conflicts of Interest Syllabus

Conflicts of Interest syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Conflicts of Interest in Multistate Professional Responsibility Examination (MPRE), not a summary of it.

1. 1

   Concurrent Conflicts with Current Clients

   3 topics

   • Identifying concurrent conflicts (Rule 1.7)
     • Directly adverse representation
     • Material limitation on the representation
   • Curing conflicts by informed consent
     • Reasonable belief in competent and diligent representation
     • Consent confirmed in writing
     • Nonconsentable conflicts and adverse parties in the same litigation
   • Common conflict scenarios
     • Joint representation of co-parties
     • Positional or issue conflicts
2. 2

   Specific Transaction and Personal-Interest Conflicts

   4 topics

   • Business transactions and adverse interests (Rule 1.8(a))
     • Fair and reasonable terms in writing
     • Advice to seek independent counsel and informed written consent
   • Gifts, financial assistance, and proprietary interests
     • Substantial gifts and drafting instruments (Rule 1.8(c))
     • Financial assistance to clients in litigation (Rule 1.8(e))
     • Literary or media rights and proprietary interests (Rules 1.8(d), 1.8(i))
   • Third-party payment and aggregate settlements
     • Compensation from one other than the client (Rule 1.8(f))
     • Aggregate settlements and informed consent (Rule 1.8(g))
   • Sexual relationships and imputation of 1.8 conflicts
     • Prohibited sexual relationships with clients (Rule 1.8(j))
     • Imputation of personal-interest prohibitions (Rule 1.8(k))
3. 3

   Duties to Former Clients

   3 topics

   • The substantial-relationship test (Rule 1.9)
     • Same or substantially related matter
     • Materially adverse interests
   • Use and disclosure of former-client information
   • Former-client consent and waiver
4. 4

   Imputation and Screening

   3 topics

   • Imputation of conflicts within a firm (Rule 1.10)
     • When one lawyer's conflict is shared firm-wide
     • Personal-interest conflict exception
   • Lawyers moving between firms
     • Screening of personally disqualified lawyers
     • Notice and certification requirements
   • Conflicts after a lawyer leaves a firm
5. 5

   Government and Former-Adjudicator Conflicts

   3 topics

   • Successive government and private employment (Rule 1.11)
     • Personal and substantial participation as a public officer
     • Confidential government information about a person
     • Screening and notice for the former government lawyer
   • Former judges, arbitrators, and neutrals (Rule 1.12)
     • Personal and substantial participation as an adjudicator
     • Negotiating employment while participating in a matter
   • Conflicts in representing organizations and fiduciaries

Conflicts of Interest flashcards for Multistate Professional Responsibility Examination (MPRE)

25 of 50 cards from the Conflicts of Interest deck — real questions with worked answers.

1. Under Model Rule 1.7(a), when does a "concurrent conflict of interest" exist?

   When (1) the representation of one client will be directly adverse to another client, OR (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, a third person, or by the lawyer's own personal interest.

2. What are the two distinct categories of concurrent conflict under Rule 1.7(a)?

   (1) Direct adversity (Rule 1.7(a)(1)), e.g., representing opposing parties in the same matter; and (2) Material limitation (Rule 1.7(a)(2)), a significant risk that the representation will be materially limited by duties to another client, former client, third person, or the lawyer's own interests.

3. Under Rule 1.7(b), what four conditions must ALL be met to cure a concurrent conflict by informed consent?

   (1) The lawyer reasonably believes she can provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve asserting a claim by one client against another client represented by the lawyer in the same litigation/proceeding; and (4) each affected client gives informed consent, confirmed in writing.

4. What makes a concurrent conflict "nonconsentable" (cannot be waived even with consent)?

   A conflict is nonconsentable if any Rule 1.7(b) requirement fails: the lawyer cannot reasonably believe she can competently/diligently represent each client, the representation is prohibited by law, or it involves one client asserting a claim against another client the lawyer represents in the same litigation.

5. What does "informed consent" require under Rule 1.0(e)?

   Agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of, and reasonably available alternatives to, the proposed conduct.

6. For conflict waivers, what is the difference between consent "confirmed in writing" and a writing "signed by the client"?

   "Confirmed in writing" (required for 1.7 and 1.9 waivers) means oral informed consent that is later memorialized in any writing the lawyer transmits or the client provides; it need not be signed by the client. A signed writing is the higher standard required for Rule 1.8(a) business transactions.

7. Are future/prospective (advance) conflict waivers effective under the Model Rules?

   They may be effective, but their validity depends on the client's understanding of the material risks. The more comprehensive the explanation and the more experienced/independently-advised the client, the more likely the advance waiver is enforceable; an open-ended waiver from an unsophisticated client is generally not.

8. Give a classic example of a "directly adverse" concurrent conflict that exists even if the matters are unrelated.

   Suing a current client on behalf of another client. A lawyer may not act as advocate against a person the lawyer represents in some other matter, even wholly unrelated, without consent of both clients (the "hot potato"/general adversity rule).

9. What is the "hot potato" doctrine in conflicts law?

   A lawyer cannot cure a concurrent conflict by dropping (firing) one current client just to convert it into a less-restrictive former-client conflict so it can take on a more attractive adverse matter; the more lenient Rule 1.9 standard does not apply when the lawyer manufactured the former-client status.

10. Under Rule 1.8(a), what THREE requirements must be satisfied before a lawyer may enter into a business transaction with a client or knowingly acquire an interest adverse to the client?

    (1) The terms are fair and reasonable to the client and are fully disclosed in writing in a manner the client can reasonably understand; (2) the client is advised in writing of the desirability of seeking, and given a reasonable opportunity to seek, independent legal counsel; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms and the lawyer's role (including whether the lawyer represents the client in the transaction).

11. Does Rule 1.8(a) apply to standard fee agreements for legal services?

    No. Rule 1.8(a) does not apply to ordinary fee agreements (governed by Rule 1.5) or to standard commercial transactions for products/services the client generally markets to others. It applies to business deals and acquiring adverse interests outside the normal lawyer-client fee relationship.

12. Under Rule 1.8(c), what is the rule on a lawyer soliciting or preparing instruments giving the lawyer a substantial gift from a client?

    A lawyer shall not solicit any substantial gift from a client (including testamentary gifts) or prepare an instrument giving the lawyer or a person related to the lawyer any substantial gift, UNLESS the lawyer or recipient is related to the client. "Related" includes spouse, child, grandchild, parent, grandparent, or other relative/individual with whom the lawyer or client maintains a close, familial relationship.

13. May a client give a lawyer an unsolicited substantial gift under Rule 1.8(c)?

    Yes. A client may make a gift to a lawyer, and the lawyer may accept it, so long as the lawyer did not solicit it and did not prepare the instrument effecting it. A substantial unsolicited gift may still be voidable by the client under undue-influence principles.

14. Under Rule 1.8(d), what may a lawyer NOT acquire before a representation concludes?

    Prior to the conclusion of the representation, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

15. Under Rule 1.8(e), what financial assistance may a lawyer provide to a client in connection with litigation?

    Generally none, except: (1) a lawyer may advance court costs and litigation expenses, repayment of which may be contingent on the outcome; and (2) a lawyer representing an indigent client pro bono may pay court costs and litigation expenses. (The 2020 amendment also allows certain modest gifts to pro bono clients for living expenses.)

16. Why does Rule 1.8(e) generally prohibit lawyers from lending living expenses to clients?

    To avoid giving the lawyer too great a financial stake in the litigation and to prevent clients from being encouraged to pursue lawsuits they otherwise would not, and to discourage clients from "shopping" lawyers based on who advances the most money.

17. Under Rule 1.8(f), what three conditions allow a lawyer to accept payment for representing a client from someone other than the client (third-party payment)?

    (1) The client gives informed consent; (2) there is no interference with the lawyer's independent professional judgment or with the client-lawyer relationship; and (3) information relating to the representation is protected as required by Rule 1.6 (confidentiality).

18. Under Rule 1.8(g), what does the rule require before a lawyer makes an aggregate settlement of the claims of multiple clients?

    Each client must give informed consent in a writing signed by the client. The lawyer must disclose the existence and nature of all the claims involved and the participation of each person in the settlement (i.e., what each client will receive or pay).

19. Under Rule 1.8(h), what are the two limits on a lawyer agreeing to limit malpractice liability or settle a malpractice claim?

    (1) A lawyer shall not prospectively limit liability for malpractice unless the client is independently represented in making the agreement; and (2) a lawyer shall not settle a claim or potential claim for malpractice with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking, and given a reasonable opportunity to seek, independent counsel.

20. Under Rule 1.8(i), what proprietary interest in litigation may a lawyer NOT acquire, and what are the exceptions?

    A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation, EXCEPT the lawyer may (1) acquire a lien authorized by law to secure fees/expenses, and (2) contract with a client for a reasonable contingent fee in a civil case.

21. Under Rule 1.8(j), what is the rule on sexual relationships with clients?

    A lawyer shall not have sexual relations with a client UNLESS a consensual sexual relationship existed between them before the client-lawyer relationship commenced. This is a personal, nonconsentable prohibition designed to protect the client from exploitation.

22. How does imputation work for Rule 1.8 conflicts under Rule 1.8(k)?

    While lawyers are associated in a firm, a prohibition under paragraphs (a) through (i) that applies to any one of them applies to all of them (it is imputed). The sole exception is the Rule 1.8(j) sexual-relationship prohibition, which is personal and NOT imputed to other firm lawyers.

23. Under Rule 1.9(a), when may a lawyer represent a new client against a former client?

    A lawyer who formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, unless the former client gives informed consent, confirmed in writing.

24. What is the "substantial relationship" test under Rule 1.9?

    Two matters are "substantially related" if (1) they involve the same transaction or legal dispute, OR (2) there is a substantial risk that confidential factual information the lawyer would normally have obtained in the prior representation would materially advance the new client's position in the subsequent matter.

25. For the substantial-relationship test, must the former client prove the lawyer actually received specific confidential information?

    No. The test focuses on whether confidential information would normally have been obtained in the prior representation and whether it would be relevant; the former client need not reveal the actual confidences to prove the conflict (a presumption protects the former client).

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