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Legal Memorandum: Avoiding the Representation of Adverse Interests

Issue: Whether an attorney in California undertook multiple client representations without disclosing the potential adverse aspects of such representation or obtaining the informed written consent of clients?

Area of Law: Ethics & Professional Responsibility
Keywords: Informed written consent; Multiple representation
Jurisdiction: California
Cited Cases: 71 Cal. App. 4th 1240; 84 Cal. Rptr. 2d 204
Cited Statutes: Cal. Rules of Professional Conduct, Rule 3-310(C)
Date: 03/01/2006

California’s Rules of Professional Conduct provide that an attorney shall not: “(1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict . . . .”  Cal. Rules of Professional Conduct, Rule 3-310(C).  Where, in the context of a potential conflict, multiple client representation is nonetheless undertaken, “. . . a lawyer must disclose “the potential adverse aspects of such multiple representation” and obtain his or her clients’ informed written consent to the potential conflict.  If the potential conflict becomes actual, the attorney must then obtain the clients’ further informed written consent.”  Gilbert v. National Corporation for Housing Partnerships (1999 1st District) 71 Cal. App. 4th 1240, 1255, 84 Cal. Rptr. 2d 204, 213 (quoting the official discussion notes to Rule 3-310).  Obviously, clients cannot provide the required informed written consent unless the requisite disclosures are made.  Id., 71 Cal. App. 4th at 1255, 84 Cal. Rptr. 2d at 214.

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