Legal Memorandum: Conflicts in Successive Representations

Issue: When is there a substantial relationship between an attorney’s prior unlawful representations and his current representation?

Area of Law: Ethics & Professional Responsibility
Keywords: Successive representations; Substantial relationship; Informed written consent
Jurisdiction: California
Cited Cases: 9 Cal. 4th 275; 280 Cal. Rptr. 614; 111 Cal. App. 4th 698; 885 P.2d 950; 229 Cal. App. 3d 1445; 36 Cal. Rptr. 2d 537
Cited Statutes: Rule of Professional Conduct 3-310(E)
Date: 03/01/2006

            Conflicts in successive representations are governed by Rule of Professional Conduct 3-310(E), which provides: “[a] member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.”  Cal. Rules of Professional Conduct, Rule 3-310(E). 

Where a motion for disqualification is brought in the successive representation context, the court must rule in favor of disqualification if the former client can demonstrate a “substantial relationship” between the antecedent and current representations.  Jessen v. Hartford Casualty Ins. Co. (2003 5th Dist.) 111 Cal. App. 4th 698, 705, 3 Cal. Rptr. 3d 877, 881 (citing Flatt v. Superior Court (1994) 9 Cal. 4th 275, 283-84, 36 Cal. Rptr. 2d 537, 885 P.2d 950).  In such cases, the attorney’s access to material confidential information is presumed:

“Where the requisite substantial relationship between the subjects of the prior and the current representations can be demonstrated, access to confidential information by the attorney in the course of the first representation is presumed and disqualification of the attorney’s representation of the second client is mandatory . . . .”

Id., 111 Cal. App. 4th at 706, 3 Cal. Rptr. 2d at 882 (quoting Flatt, 9 Cal. 4th at 283, 36 Cal. Rptr. 2d 537, 885 […]

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