|Violation of Rule of Professional Conduct 3-310, our generic and
acrobatic conflicts of interest prohibition, can lead to disqualification, disgorgement of
fees and discipline. It is dense with numerous sections. Ordinarily, for disqualification,
the predicate is an attorney-client relationship. However, the rule also can be applied to
circumstances where there is no attorney-client relationship, and the facts of the case
clearly fall outside the strict construction of the rule.
In these cases, the court may
reference "square pegs which don't fit in round holes," a concept which
justifiably can terrify good, hardworking lawyers who are attempting to follow the rules.
How do you anticipate amorphous situations that are not even within the confines of the
conflicts rule? One method is to consider if you are acting as fiduciary.
v. Superior Court (1983) 149 Cal.App. 3d 1042, a partner of the law firm served on the
board of directors of a bank in a fiduciary capacity. In disqualifying the law firm, the
court maintained that a disqualifying conflict may result from a lawyer's relationship
with a non-client, if the relationship creates an expectation of confidentiality, "or
where the lawyer acquired confidential information in the course of such a relationship
that will be, or may appear to be, useful in litigation on behalf of the client."
A recent case, Morrison v. Hancock (1999) 81 Cal. Rptr. 2d 425, gives new viability to
the idea that lawyers can be disqualified for the receipt of confidential information,
even absent an attorney-client relationship. The lawyer was acting as "monitoring
counsel," and the court found, again, that the lawyer was acting in a fiduciary
Then there is Allen v. Academic Games Leagues of America Inc. (C.D. Cal. 1993) 831 F.
Supp. 785, where a non-lawyer student served on a board as a student competitor and coach.
After he became an attorney and his firm was pursuing litigation against Academic Games,
the firm was disqualified because of information the lawyer was exposed to before he even
became an attorney. Here, the court maintained that although the conduct was not within
the confines of Rule 3-310, the general prohibition on all lawyer misconduct contained
within Rule 1-100 justified disqualification.
Rule 1-100 states the basic purpose, function and intent of the rules, i.e., to promote
respect and confidence in the legal profession. This rule often is thought of as a
diaph-anous prohibition restricting lawyers from doing anything that is wrong. Still, this
case shows that it can be resurrected on a whim to justify a court's predilection to
Remember that disqualification involves the court's attempt to level the playing field.
Therefore, in litigation, if one side is raised on a mound (due to information received in
or out of an attorney-client relationship), the courts will not hesitate to bring in the
bulldozers in the interest of not compromising the adversarial system or creating an
Diane Karpman of Los Angeles represents
attorneys at the State Bar.