REGULARS

DISCIPLINE

The 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 employment."

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 court decisions.

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 in California.

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 before it.

"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 judicial process."

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 charge.

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 says.

"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 calbar.org.