ETH 2011-182.
Court | California |
California Ethics Opinion
2011.
ETH 2011-182.
THE STATE BAR OF
CALIFORNIASTANDING COMMITTEE ON PROFESSIONAL
RESPONSIBILITY AND CONDUCTFORMAL OPINION NO. 2011-1822010ISSUES: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?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(fn1)
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?(fn2)
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...
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