The Oklahoma Bar Journal December 2022

A S I HAVE WRITTEN OFTEN, most inquiries I receive are about conflicts of interest. Commonly, the conflicts are concurrent conflicts or former client conflicts. Often, the issue is one of imputation. Rarely, the question involves current or former government law yers or former judges and other third-party neutrals. Even less often, the potential conflict is one that is specified in ORPC 1.8. Most lawyers seek to avoid these specific conflict sit uations even if there is a possibility the conflict situation may be cured. This conservative course is most often best.

great. A lawyer may not solicit any substantial gift from a cli ent, including testamentary gifts, and a lawyer may not prepare an instrument on behalf of a client who gives a substantial gift to the lawyer or a person related to the lawyer unless the lawyer is related to the client. 1 This rule defines “related persons” as a spouse, child, grandchild, parent, grand parent or another relative. Also, a lawyer may not negotiate an agree ment giving the lawyer literary or media rights based in substan tial part on information relating to the representation until after the representation is concluded. 2 Lawyers may not provide financial assistance to a client in connection with pending or contemplated liti gation except advancing court costs and expenses of litigation that are contingent on the outcome of the matter or paying court costs and expenses of litigation on behalf of an indigent client. 3

WHY SPECIFIC RULES? Some situations are so fraught with the possibility of overreach ing and self-dealing that the rules prohibit representation unless the lawyer meets the requirements of ORPC 1.8 (a). For example, a lawyer entering into a business transaction with a client must 1) fully disclose and transmit in an understandable writing the transaction, which must be fair and reasonable to the client, 2) the client must be advised of the desirability of seeking independent legal counsel and be afforded an opportunity to do so and 3) the client must give written informed consent to the essential terms of the transaction, the lawyer’s role in the transaction, including whether the lawyer is representing the client, and the transaction. INCURABLE CONFLICTS Other situations are prohibited entirely because the risk of over reaching and self-dealing is too

A SPECIFIC RULE FOR MALPRACTICE LIABILITY Lawyers may not accept com pensation for representing a client from someone other than the client unless the client gives informed consent, there is no interference with the lawyer’s independence and professional judgment and confidential infor mation is protected. 4 Lawyers also may not settle the claims or cases of two or more clients unless each client gives informed consent in writing. 5 Lawyers also may not prospectively limit liability for malpractice. 6 Nor may a lawyer settle a claim with an unrep resented client or former client unless that person is advised of the desirability of seeking inde pendent legal counsel and given a reasonable opportunity to do so. 7

DECEMBER 2022 | 29

THE OKLAHOMA BAR JOURNAL