ETH 2011-182
Formal Opinion No. 2011-182
California Ethics Opinions
2013
ISSUES:1. When at the outset of representation it appears an attorney would need to serve a discovery subpoena for production of documents on another current client of the attorney or the attorney’s law firm, may the attorney accept the representation of the new client and serve the discovery subpoena on the current client?
2. If doing so raises a conflict of interest, may the attorney seek informed written consent in order to accept the representation including possible service of the subpoena?
3. What obligations arise if an attorney seeks informed written consent?
THE STATE BAR OF CALIFORNIA STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
DIGEST: When an attorney discovers at the outset of representation that the attorney must serve a discovery subpoena for production of documents on another current client of the attorney or the attorney’s law firm, serving the discovery subpoena is an adverse action such that a concurrent client conflict of interest arises. To represent a client who seeks to serve such a subpoena, the attorney must seek informed written consent from each client, disclosing the relevant circumstances and the actual and reasonably foreseeable adverse consequences to the client providing consent.
AUTHORITIES
INTERPRETED: Rules 3-100 and 3-310 of the Rules of Professional Conduct of the State Bar of California[1]
Business and Professions Code section 6068, subdivision (e)
STATEMENT OF FACTS
Prospective Client requests Attorney to represent Prospective Client in litigation. Before agreeing to represent Prospective Client, Attorney runs a conflict check listing the adverse parties and all potential witnesses identified by Prospective Client and Attorney. The conflict check reveals that Witness Client, a potential witness who has documents critical to the litigation, is represented by Partner, another attorney at Attorney’s law firm in an unrelated matter.
Is it a conflict of interest for Attorney to accept the representation of Prospective Client and serve a discovery subpoena for documents (“document subpoena”) on Witness Client? If it is a conflict of interest, may Attorney do so with informed written consent of Prospective Client and Witness Client? What obligations arise if an attorney seeks informed written consent to such a representation?[2]
DISCUSSION
1. Conducting Third Party Discovery of a Current Client is Adverse
This opinion addresses the issue of whether an attorney may accept representation of a new client when at the outset of the representation it appears the attorney would need to serve a discovery subpoena for documents on another existing client of the attorney’s law firm. The first question is whether serving a document subpoena on a witness/client is “adverse” to the interests of that client. California law has not expressly defined “adverse” for purposes of analysis of conflicts between an attorney’s clients. Neither rule 3-310 nor California case law supply an explicit definition in that context. In Flatt v. Superior Court (1994) 9 Cal.4th 275 [36 Cal.Rptr.2d 537], the California Supreme Court held that it would be a breach of the duty of loyalty for an attorney to represent or provide advice to a client or person that is adverse to the interests of an existing client on any matter, whether related or unrelated. It is a violation of the duty of loyalty for an attorney to put himself in a position where he may have to choose between conflicting duties, or be led to attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent. Flatt, supra, 9 Cal.4th at p. 289, citing Anderson v. Eaton (1930) 211 Cal. 113, 116 [293 P. 788]; People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1146-47 [86 Cal.Rptr.2d 816]; see Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [124 Cal.Rptr.3d 256]. “‘By virtue of this rule an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client’s interests.’” Flatt, supra, quoting Anderson, supra (emphasis added by court in Flatt). In such circumstances, “the rule of disqualification . . . is a per se or ‘automatic’ one.” Flatt, supra, 9 Cal.4th at p. 284 (emphasis in original); Anderson, supra, 211 Cal. at p. 116. The purpose of this rule is to maintain the level of confidence and trust in counsel that is one of the foundations of the professional relationship. Flatt, supra, 9 Cal.4th at p. 285.
While Flatt arose out of one client potentially suing another client, or party adversity, other cases have applied the proscription against adverse representation in situations where the existing client is a third-party witness rather than an adverse party. For instance, in Hernandez v. Paicius (2003) 109 Cal.App.4th 452 [134 Cal.Rptr.2d 756], disapproved on other grounds, People v. Freeman (2010) 47 Cal.4th 993 [103 Cal.Rptr.3d 723], an attorney cross-examined her own current client during a trial in which he was an expert witness for the opposing party. The court stated the...
