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The Conflict Of Fiduciary Duty

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Question A: SUCCESSIVE CONFLICT Fiduciary Duty Practitioners must not accept a retainer in any action against a former client or someone from whom they have obtained confidential and material information and it is reasonable to conclude that there is a real possibility the information will be used to the persons detriment. There was no retainer between Virginia and Teddy, but a duty of confidentiality could still apply in equity if the information was believed to be confidential or in a lawyer-client relationship. Because of the informal social setting and lack of detailed information exchanged, it is likely that Virginia does not owe Teddy a fiduciary duty or duty of confidence. If Virginia does owe Teddy a fiduciary duty, the onus of proof is on Teddy to show whether she has confidential information, whether that information is relevant to the new matter and whether it is reasonable for Teddy to conclude that there is a real risk that the information will be used to his detriment. Next, the onus shifts to whether information screening can appropriately protect the firm. Breach of confidence in equity requires confidential information that has the necessary quality of confidence, imparted in circumstances importing an obligation of confidence, not otherwise required by law or in the public interest. The objective test for judicial intervention is whether a reasonable observer would perceive a real possibility of misuse of confidential information. Courts will

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