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Legal Memorandum: Attorney's Duties to Former Clients

Issue: Whether the subject matter of a California Attorney’s prior representation of a client is substantially related to the subject matter of his current representation of Defendants?

Area of Law: Ethics & Professional Responsibility
Keywords: Successive representations; Informed written consent
Jurisdiction: California
Cited Cases: 117 Cal. Rptr. 2d 125; 119 Cal. App. 4th 671
Cited Statutes: None
Date: 03/01/2006

            See Jessen v. Hartford Cas. Ins. Co., 111 Cal. App. 4th 698, 709 (2003).  The Jessen court explained the requisite relationship between the former and current relationships as follows:

. . . successive representations will be “substantially related” when the evidence before the trial court supports a rational conclusion that information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues.

Id., 111 Cal. App. 4th at 713, 3 Cal. Rptr. 3d at 887-88.

Where a current representation involves work performed by a lawyer for a former client, the current and former representations are substantially related.  In Farris v. Fireman’s Fund Insurance Co., a case interpreting Jessen, the Court of Appeal cited the following example of substantially related representations:

An attorney who, in the former representation of an insurance company, prepared a form of insurance policy for the company’s use cannot in the second representation sue the insurance company for breach of that policy on behalf of a person to whom a form of the policy was subsequently issued.

Farris v. Fireman’s Fund Insurance Co. (2004 5th Dist.) 119 Cal. App. 4th 671, 682, 14 Cal. Rptr. 3d 618, 625.  In City National Bank v. Adams, the court expressed the underlying principle:

We hold that, absent the informed written consent of […]

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