|When an attorney represents a client in a matter which is adverse to a
former client of the attorney's firm, he should obtain the informed written consent of the
ex-client. According to an opinion by the State Bar's Standing Committee on Professional
Responsibility and Conduct (COPRAC), the lawyer might not be subject to discipline but
would nevertheless be prudent to notify the former client about the circumstances.
opinion, number 1998-152, deals with a classic case of "side-switching," in
which a lawyer or a law firm which has consulted with one side in a case ultimately
represents the opposing side.
California courts have repeatedly disqualified lawyers in civil cases from representing
new clients against the opposing party if the opposing party provided confidential
information in a prior consultation.
Despite the court rulings, the area is not covered in the California Rules of
Professional Conduct. Rule 3-310(E) states that an attorney "shall not, without the
informed written consent of the client or former client, accept employment adverse to the
client or former client, where, by reason of the representation of the client or former
client, the [attorney] has obtained confidential information material to the
Because the rule does not refer to a law firm, an attorney who finds himself in the
situation described above would not be subject to discipline for representing the new
client. Nor is he required to obtain the written consent of the former client.
However, COPRAC addressed the issue of whether the lawyer is precluded from accepting
the representation without the former client's consent based on principles adopted in
California courts generally have adopted the so-called imputed knowledge rule in
addressing this issue, according to the COPRAC opinion. The imputed knowledge rule
provides that client confidential information obtained by one lawyer in a firm is deemed
to be possessed by all lawyers in the firm.
The rule is derived from a model ethical rule outside of California which state courts
have recognized and applied in attorney disqualification matters.
Nonetheless, the opinion states, outside rules do not establish disciplinary standards
The opinion goes on to distinguish between disciplinary rules and civil standards, and
notes that the fact that a standard exists in the context of lawyer discipline does not
automatically subject an attorney to State Bar prosecution.
The California Rules of Professional Conduct are intended to regulate the professional
conduct of lawyers through discipline. On the other hand, a court's power to order
disqualification is derived from its power to control the administrative proceedings
"Disciplinary rules," the opinion says, "are but one of the factors on
which courts decide whether disqualification is necessary to preserve the integrity of the
Under rule 3-310(E), lawyer disqualification turns on the merits of the former client's
interest in preserving the confidentiality of the information given to the lawyer.
Disqualification under the rule does not require that confidential information be
provided. On the other hand, when a charge is made that an attorney has breached his duty,
there is no privilege and confidential information may be revealed in order to refute the
Although the imputed knowledge rule does not constitute a basis for discipline under
rule 3-310(E), the committee believes the lawyer should not accept representation of the
new client without accepting the former client's written consent. Obtaining the consent
"is consistent with a lawyer's broader professional responsibility," the opinion
"While the committee is not suggesting that lawyers would not seek to protect the
former client's confidences in such situations," the opinion continues, "the
absence of an effective means of oversight combined with the law firm's interest as an
advocate for the current client in the adverse representation are factors that tend to
undermine a former client's trust, and in turn the public's trust, in a legal system that
would permit such a situation to exist without the former client's consent."
The full text of the opinion, which is advisory only, is available online at