Non Conflict Legal Opinion

[6] Loyalty to a current client prohibits taking over a representation directly prejudicial to that client without the client`s consent after clarification. Therefore, without consent, a lawyer cannot act as counsel in a case against a person he represents in another case, even if the cases are completely independent of each other. The client for whom the representation is directly detrimental is likely to feel betrayed and the resulting damage to the client-lawyer relationship is likely to affect the lawyer`s ability to effectively represent the client. In addition, the client on whose behalf the opposing representation is reasonably made may fear that the lawyer will pursue that client`s case less effectively for the sake of the other client, i.e.: This representation could be materially limited by the lawyer`s interest in retaining the current client. Similarly, a directly adverse conflict may arise when a lawyer has to cross-examine a client who is a witness in a dispute involving another client, as if the testimony were prejudicial to the client represented in the application. On the other hand, simultaneous representation of clients whose interests are not economically disadvantageous, such as representation of competing commercial enterprises in independent disputes, generally does not constitute a conflict of interest and therefore may not require the consent of the respective clients. [22] Whether a lawyer may legitimately ask a client to refrain from future disputes is subject to consideration in paragraph (b). The effectiveness of such waivers will generally be determined by the extent to which Customer reasonably understands the material risks involved in the waiver. The more fully the nature of future representations that may be made and the actual and reasonably foreseeable adverse consequences of such statements are explained, the more likely it is that the client will have the necessary understanding.

Thus, if the customer agrees to accept a certain type of conflict that he already knows, the consent is usually effective with respect to this type of conflict. If consent is general and open, consent is generally ineffective because the client is unlikely to have understood the significant risks involved. If, on the other hand, the client is an experienced user of the legal services concerned and is adequately informed of the potential for conflict, this consent is more effective, especially if, for example, the client is represented independently of another lawyer when granting consent and consent is limited to future conflicts that have nothing to do with the purpose of the representation. In any event, prior consent may be ineffective if future circumstances are such that the conflict could not give rise to consent under subparagraph (b). [13] A lawyer may be remunerated by a source other than the client, including a co-client, if the client is informed and accepts this fact and the agreement does not affect the client`s duty of loyalty or judgment. See Rule 1.8(f). If the acceptance of a payment from another source involves a significant risk that the lawyer`s representation of the client will be materially limited by the lawyer`s interest in accommodating the person paying the lawyer`s fees or by the lawyer`s liability to a payer who is also a co-client, the lawyer must comply with the requirements of paragraph (b), before accepting the performance. including determining whether the dispute is consenting and, if so, whether the client has sufficient information about the material risks of representation. Whether an opinion should be required is sometimes controversial.

Parties should always weigh the costs and benefits of an expert opinion when making this decision. For the recipient of the opinion, it is better to get an opinion than not to get an opinion, because of the added certainty, but opinions are often laborious and expensive. Since these costs are usually borne by the borrower, this threshold decision is often the result of discussion and negotiation. Transactions involving large amounts, unusual collateral, or borrowers with complicated organizational structures are the best candidates for required legal advice. In some transactions, such as syndicated loan transactions, opinions are always expected in accordance with market practice. [15] Eligibility for consent is usually determined by assessing whether clients` interests are adequately protected by allowing clients to give informed consent to representation subject to a conflict of interest. Thus, paragraph (b)(1) prohibits representation if, in the circumstances, counsel cannot reasonably conclude that he or she will be able to represent competently and conscientiously. See Rule 1.1 (Jurisdiction) and Rule 1.3 (Due Diligence). [9] In addition to conflicts with other current clients, a lawyer`s duty of loyalty and independence may be significantly limited by his or her responsibilities to former clients under Rule 1.9 or by his or her responsibilities to others, such as fiduciary duties arising from his or her activities as a trustee, executor or company director. A legal opinion is a mandatory closing delivery for many financing transactions, but the nature and purpose of the legal advice is often misunderstood by non-lawyers involved in the transaction.

Typically, lawyers representing the parties work directly with each other on the notice. Clients are usually involved early in the process when asked if an opinion should be required, or late in the process when problems arise. This article discusses the purpose and elements of legal advice, the types of problems that typically arise, and considerations about when legal advice should be required.