| 1. Prospective lawyer members of firms should be asked for a list of all
matters on and clients for which the lawyer is working; the list should be checked against
the firm's current clients and matters for direct and potential adversity; and if any of
the potential new clients are adverse to any of the firm's current clients, the firm
cannot accept representation of the new clients unless both clients' informed written
consent is obtained. 2. It is not necessary to ask each potential partner or associate
for a list of every matter on and client for which that lawyer ever worked.
3. Rule 3-310(E)'s purpose is to protect current and former client confidentiality and
the confidential relationship between attorney and client.
4. Client confidentiality is limited to the duty to maintain the attorney-client
privilege.
5. Confidentiality does not include an attorney's revelation of embarrassing
information about a client.
6. An attorney must maintain confidentiality of client secrets until the end of the
attorney-client relationship or the client's death, whichever comes first.
7. Accepting resignation of new clients concerning matters adverse to former clients in
which material confidential information has been acquired by the lawyer creates risks
including disqualification, ineligibility to receive fees, or malpractice or discipline
claim, complaint, damages or sanction.
8. After the termination of a lawyer-client relationship, the duty of loyalty precludes
the lawyer from ever taking an adverse action against that client.
9. The "substantial relationship" test is used by California courts to
determine whether a law firm should be disqualified when a former or current client claims
that there is a substantial relationship between the subjects of the prior and the current
representations.
10. In applying the substantial relationship test, California courts only analyze
whether there are similarities between the two factual situations in the former and the
current representations.
11. If a substantial relationship between the former representation and the current
representation is demonstrated, confidential information is presumed to have been imparted
to the lawyers.
12. If a court finds that there is a substantial relationship between an attorney's
former and current employment, disqualification must be ordered to protect the integrity
of the attorney-client relationship and resolve the possible conflict of interest.
13. If one lawyer in a firm is disqualified due to potential breach of confidentiality,
disqualification does not extend automatically to the entire firm.
14. The imputed knowledge or vicarious disqualification rule is in the Rules of
Professional Conduct and permits courts to recuse entire firms to protect the
confidentiality of current or former clients.
15. If one lawyer or member of a law firm possesses confidential information, knowledge
of that confidential information is not deemed to be possessed by other members of the
firm in other branch offices in other states or counties.
16. When a new lawyer joins a firm, his or her knowledge from past cases is never
imputed to all the other members of the firm upon joining the firm.
17. Where a new lawyer joins a firm with confidential information substantially related
to an adverse party of the firm's current client, the law firm will not be disqualified if
the affected lawyer is screened at the time of the filing of the disqualification motion.
18. There are three types of situations in which California courts have approved an
ethical wall.
19. In California federal courts, a law firm will not be disqualified because lawyers
formerly worked at a firm which provided substantially related services to the new firm's
current adversary if the lawyers never worked on any of the former firm's client matters
and otherwise acquired no confidential information.
20. Confidence possessed by law firm associates and partners are the only risk of
disqualification.
CERTIFICATION
 This activity has been approved for Minimum
Continuing Legal Education credit by the State Bar of California in the amount of 1 hour,
of which 1 hour will apply to legal ethics.
The State Bar of California certifies that this
activity conforms to the standards for approved education activities prescribed by the
rules and regulations of the State Bar of California governing minimum continuing legal
education. |
