Ethics Committee Advisory Opinion #1990-91/11
Conflict of Interest: Client Gift to a Relative of a Firm Associate (Prohibited Transactions)
May 9, 1991
ANNOTATION:
A lawyer is prohibited from preparing an instrument giving the lawyer or the lawyer’s relative any substantial gift from a client, including a testamentary gift. (Rule 1.8(c)).
While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8(c), 1.9, or 2.2. (Rule 1.10(a)).
Imputed disqualification may be waived by an affected client only after consultation and with knowledge of the consequences. (Rule 1.10(d); Rule 1.7(b)(2)).
A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibility to another client or to a third person, or by the lawyer’s own interests unless the client consents after consultation and with knowledge of the consequences. (Rule 1.7(b)(2)).
Under the “harsh reality” test, a lawyer should contemplate the following: if a disinterested lawyer were to look back at the inception of the representation once something goes wrong, would that lawyer seriously question the wisdom of the first attorney’s requesting the client’s consent to the representation or question whether there had been a full disclosure to the client prior to obtaining the consent, NH Op 1988-89/24. (Rule 1.7(b)(2)).
QUESTION:
May an attorney enter into an arrangement for or charge a contingent fee in a Domestic Relations matter involving collection of payments due under a property settlement and/or potential recovery in an action to modify decree on the grounds of fraud where: a) the final divorce decree was previously entered; and b) no minor children are involved?