· Subject Deep Dives · 10 min read
Conflicts of Interest in Professional Responsibility: Bar Exam Deep Dive
Master conflicts of interest for the MPRE and bar exam. Learn current and former client conflicts, imputation rules, screening, consent requirements, and the key Model Rules with exam strategies.
Conflicts of Interest: The Most Heavily Tested PR Topic
Conflicts of interest account for roughly 25% of all MPRE questions and are a favorite on the MEE. The rules are detailed and interconnected, which is exactly why examiners love them.
This guide is part of our Professional Responsibility complete framework.
Current Client Conflicts: Rule 1.7
Rule 1.7 is the foundational conflict rule. There are two types of current client conflicts:
| Type | Rule | Test | Example |
|---|---|---|---|
| Direct adversity | 1.7(a)(1) | Representation of one client is directly adverse to another current client | Representing both plaintiff and defendant in the same lawsuit |
| Material limitation | 1.7(a)(2) | Significant risk that representation of one client will be materially limited by duties to another client, a former client, a third person, or the lawyer's own interests | Representing co-defendants with potentially divergent defenses; business relationship with opposing party |
When Can Conflicts Be Waived?
Under Rule 1.7(b), a lawyer MAY proceed despite a conflict if ALL four conditions are met:
- The lawyer reasonably believes they can provide competent and diligent representation to each affected client
- The representation is not prohibited by law
- The representation does not involve asserting a claim by one client against another in the same proceeding
- Each affected client gives informed consent, confirmed in writing
Exam Trap: Even with consent, some conflicts are non-consentable. If a reasonable lawyer would conclude that competent representation is impossible, the conflict cannot be waived. Also, you CANNOT represent opposing parties in the same litigation even with consent.
Specific Conflict Rules: Rule 1.8
Rule 1.8 addresses specific situations prone to conflicts:
| Situation | Rule | Key Requirement |
|---|---|---|
| Business transactions with client | 1.8(a) | Terms must be fair, in writing, client advised to seek independent counsel, client gives informed written consent |
| Literary/media rights | 1.8(d) | Cannot negotiate for literary/media rights based on representation BEFORE representation ends |
| Financial assistance to client | 1.8(e) | Generally prohibited. Exception: lawyer may advance litigation costs (repayment contingent on outcome permitted) |
| Gifts from client | 1.8(c) | Lawyer cannot solicit substantial gift or prepare instrument giving lawyer a substantial gift (unless client is related) |
| Sexual relations with client | 1.8(j) | Prohibited unless the sexual relationship existed before the attorney-client relationship began |
| Aggregate settlements | 1.8(g) | Each client must give informed written consent after being told of all other clients' participation |
Former Client Conflicts: Rule 1.9
A lawyer who has represented a client in a matter cannot subsequently represent another person in the same or a substantially related matter if that person's interests are materially adverse to the former client -- unless the former client gives informed written consent.
"Substantially related" test: Would the lawyer have obtained confidential information in the prior representation that could be used against the former client in the new matter?
Trigger: "Attorney previously represented Company A in a contract dispute. Now Plaintiff wants Attorney to sue Company A for breach of a similar contract." -- former client conflict under Rule 1.9.
Imputation: Rule 1.10
When one lawyer in a firm has a conflict, that conflict is generally imputed to every lawyer in the firm.
Exceptions to Imputation
- Personal interest conflicts (1.10(a)(1)): If the conflict is based on a lawyer's personal interest and does not present a significant risk of materially limiting representation, it is NOT imputed
- Screening of lateral hires (1.10(a)(2)): When a lawyer moves to a new firm, the new firm can avoid imputation by: (1) timely screening the disqualified lawyer, (2) giving written notice to affected clients, and (3) the screened lawyer receives no fee from the matter
Government Lawyers: Rules 1.11 and 1.12
| Scenario | Rule | Key Point |
|---|---|---|
| Former government lawyer entering private practice | 1.11(a) | Cannot represent a private client in a matter in which the lawyer participated personally and substantially while in government, unless the government consents |
| Former judge/arbitrator/mediator | 1.12 | Cannot represent anyone in a matter in which the lawyer participated personally and substantially in a judicial capacity |
Both allow the new firm to avoid imputation through proper screening.
Conflicts Flowchart for Exam Day
- Is there a conflict? Check Rule 1.7(a) -- direct adversity or material limitation?
- Is it a former client issue? Check Rule 1.9 -- same or substantially related matter?
- Is it a specific Rule 1.8 issue? Business transaction, gift, sexual relationship, etc.?
- Is the conflict consentable? Apply Rule 1.7(b) four-part test
- Is there imputation? Check Rule 1.10 -- does the conflict spread to the whole firm?
- Can screening cure it? Only for lateral hires (1.10(a)(2)) and former government lawyers (1.11)
Practice Questions
Question 1
"Attorney represents Husband in a property dispute. Wife asks Attorney to also represent her in an unrelated personal injury case against a third party."
Analysis: No direct adversity (different matters, different opponents). But is there a material limitation? Representing both spouses in any matters during an active property dispute creates a risk. If the lawyer reasonably believes competent representation is possible AND both clients give informed written consent, the representation may proceed.
Question 2
"Attorney recently left the District Attorney's office where she personally prosecuted Defendant for fraud. A private firm now wants Attorney to defend Defendant in a related civil suit."
Analysis: Rule 1.11 -- Attorney participated personally and substantially in the fraud prosecution. She cannot represent Defendant in a related matter unless the government agency gives informed written consent. The firm can still represent Defendant if Attorney is properly screened.
Key Takeaways
- Rule 1.7 (current clients) is the most tested conflict rule
- Non-consentable conflicts exist -- consent cannot fix everything
- Rule 1.9 (former clients): focus on "substantially related" test
- Imputation (1.10) applies firm-wide but has screening exceptions
- Government lawyers (1.11): personal and substantial participation is the trigger
Continue with Attorney Discipline & Ethics Reporting or return to the Professional Responsibility complete framework.
Study with our Professional Responsibility outline templates.
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