As speaker Richard E. Flamm states, "the Number One basis for legal malpractice cases in the U.S. is conflicts of interest; and every judge is totally conversant in disqualification motions. They happen every day." Mr. Flamm discusses the Rules governing conflicts of interest (including California and ABA ), the possible severe consequences of conflicts of interest, disqualification for conflicts of interest in numerous practice areas, motions to disqualify by former clients, defenses to motions and vicarious disqualification.

Recorded January 8, 2008

I. INTRODUCTION TO CONFLICTS AND DISQUALIFICATION
-California Rules of Professional Conduct
-ABA Model Rules of Professional Conduct
-The Rules Governing Lawyer Conduct -- CRPC/RPC
o Californias Conflict of Interest Rules and Rules of Professional Conduct
o ABA Model Rules of Professional Conduct
o The Three Ironies
o California Rule of Professional Conduct 3-310: "Avoiding the Representation of Adverse Interests"
II. POSSIBLE CONSEQUENCES OF CONFLICTS OF INTEREST, INCLUDING DISQUALIFICATION
-Disgorgement Malpractice Lawsuit: "The Number One Basis for Legal Malpractice Cases in the U.S. today is Conflicts of Interest."
-Transactional lawyers are not immune. An injunction action can be brought to enjoin conflicted representation.
III DISQUALIFICATION FOR CONFLICTS OF INTEREST
-Introduction to Disqualification: "Every judge in California is totally conversant in disqualification motions. They happen every day."
-Hot topic: Inadvertent receipt of non-client confidential information, e,.g., by fax.
-Unauthorized Contact with a Represented Party, CRPC Rule 2-100).
-Practice tips regarding corporate clients.
-Advocate Witness Rule (Rule 5-210)
-Appearance of Impropriety
-Disqualification for Conflicts of Interest
IV. DISQUALIFICATION MOTIONS IN MULTIPLE PRACTICE AREAS:
-"Conflicts of Interest are Across the Board." Although disqualification motions are active case actions, limited to litigated proceedings, injunction actions can be brought.
-"The vast majority of Disqualification Motions are brought for tactical reasons."
-Personal Injury Cases: Alignment of client and law firm interests in settlement talks.
-What is a Conflict of Interest?
-Defining the Term "Conflict of Interest:" No way to define: Fact-specific
-Multiple representation (Entertainment Law example)
-Criminal Law example
-Concurrent representation: Conflicts between current clients
-"Duty of Loyalty and Fidelity" standard for lawyers.
V. MOTIONS TO DISQUALIFY FILED BY FORMER CLIENTS
-"The most common basis for disqualification motions."
-Development of the Substantial Relationship Test
-Test: confidential information: presumed confidential unless proven otherwise.
-The Substantial Relationship Test in Federal Court (And Other Jurisdictions)
-The Substantial Relationship Test in California: Requirement That Challenged
o Lawyer Had Access to Client Confidences

VI. DEFENSES TO DISQUALIFICATION MOTIONS
-Lack of Standing to Seek Disqualification Conflict Waivers: "Better than Nothing.": Not in Ethical Rules
-Client Consent to Conflicted Representation: Issues involved and practice tips.
-Attacking a waiver
VII. "VICARIOUS OR IMPUTED DISQUALIFICATION"
-Original Rule: Presumption of shared confidences
-Rebuttable and Irrebuttable Presumptions
-Rebutting the Presumption of Shared Confidences
-Permissibility of Screening (Ethical Walls," Firewalls)
-Cone of Silence
-Determining Whether a Screen Is Effective "No California Court has ever said "a wall allows adverse representation" (cf. 9th Circuit)

Online Media Type:		Audio
State Hours:		CA, NY, TX, IL, AZ, NV, FL, IN, UT, NJ, TN, WA, AL, SC, CO, NC, VA

Speakers:

Richard Flamm Richard E. Flamm, a 1981 Rutgers Law School graduate, is a nationally-recognized expert in the field of legal ethics. A litigator for more than 20 years, since 1995 Mr. Flamm has concentrated on his Berkeley California-based law and consulting practice. In his practice, Mr. Flamm provides representation, advice and expert witness testimony with respect to legal and judicial ethics, legal malpractice, and breach of fiduciary duty matters -- with an emphasis on legal, judicial, and quasi-judicial disqualification motions and appeals. In his capacity as an expert witness, Mr. Flamm has testified, either in court or by way of affidavit, in dozens of cases involving matters of legal and/or judicial ethics. Mr. Flamm's extensive client list includes many of the nation's leading corporations and law firms. Mr. Flamm is the author of two highly-acclaimed treatises: Lawyer Disqualification: Conflicts of Interest and Other Bases, and Judicial Disqualification: Recusal and Disqualification of Judges, which has been widely relied on by state and federal courts throughout the country. Both works are published by Banks and Jordan Law Publishing: www.banksandjordan.com. He has also authored numerous scholarly articles on conflicts of interests, disqualification and related subjects for law reviews and other publications.