A prospective client comes to you and you discover that there’s a conflict of interest with one of your current or former clients. Or while you’re representing a client, a conflict arises with another client. You’ve got three ways to deal with these types of situations, depending on when the conflict comes to light.
- Just say no. An attorney can always decline to accept representation of a prospective client whose interests may be adverse to another client.
- Make full disclosure and get written consent. An attorney can accept representation of a prospective client or continue representing a client whose interests may be adverse to another client as long as the attorney fully discloses the conflict to the client (or former client) and gets the client’s (or former client’s) informed written consent to the employment despite the conflict or potential conflict. Cal Rules of Prof Cond 3–310. The attorney should explain the conflict and disclose all facts relevant to the client’s decision on whether to waive the conflict. In doing so, the attorney must be careful not to disclose any confidences gained from the attorney’s relationship with the other party/client.
- Withdraw from conflicting representation. The California Rules of Professional Conduct require that an attorney who knows or should know that continued representation will result in a violation of the State Bar Rules of Professional Conduct or the State Bar Act must withdraw from representation. Cal Rules of Prof Cond 3–700(B)(2) (mandatory withdrawal). The Rules allow the attorney to withdraw (subject to the possible need for court approval) when continued representation is likely to result in a violation of another rule or of the Act. Cal Rules of Prof Cond 3–700(C)(2) (permissive withdrawal). The duty to withdraw, thus terminating the attorney-client relationship, may arise whenever counsel for a party to an action has reason to believe that discharge of his or her duties to that party will conflict with discharge of his or her duties to a third party. The same duty arises when an attorney is faced with the situation of representing inconsistent claims of two parties, because the attorney must be able to devote all of his or her energies in the client’s interests and on the client’s behalf.
When in doubt about the ethics of a potential conflict of interest, consider requesting information from the California State Bar’s Ethics Hotline or getting an opinion letter from private counsel specializing in legal ethics. Seeking an opinion from the county bar association ethics committee or from the State Bar Committee on Professional Responsibility and Conduct is another option, but this approach may take many months. Whatever approach is taken, an attorney’s documented effort to obtain guidance from counsel or an ethics committee for an interpretation of a rule of conduct as it applies to a particular fact situation—and compliance with that advice—creates a record showing that the attorney made a good faith effort to comply with professional standards, thus minimizing the chances of being disciplined for “willful breach” of the rules. See Cal Rules of Prof Cond 1–100.
For practical guidance on avoiding conflicts of interest, turn to CEB’s California Civil Procedure Before Trial, chap 2. To keep up with the recent changes to the California State Bar and the Rules of Professional Responsibility, view CEB’s program 2017 Top 20: Legal Ethics.
Other CEBblog™ posts you may find useful:
- How Do I Get Out of This Case?
- A Conflicts Check Can Save You
- Conflict Avoidance: Do You Have a Conflicts Check System?
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