Legal Memorandum: Disqualification of an Attorney in CA

Issue: What rules determine when an attorney should be disqualified from continuing representation following the discovery of a potential conflict of interest?

Area of Law: Ethics & Professional Responsibility
Keywords: Disqualification of an attorney; Conflict of interest; Continuing representation
Jurisdiction: California
Cited Cases: 163 Cal. App. 3d 70; 211 Cal. Rptr. 802
Cited Statutes: None
Date: 11/01/2007

In Elliott v. McFarland Unified Sch. Dist., 165 Cal. App. 3d 562, 211 Cal. Rptr. 802 (5th Dist. 1985), a teacher had sued both Kern High School and the McFarland Unified District where he had worked for vacation credits he had earned prior to a transfer.  In that matter, both the high school and the school district were provided with legal counsel through School Legal Services (SLS) under a contract SLS had with each.  SLS filed points and authorities in opposition to Elliott’s petition and arranged for a continuance.  Shortly after that, McFarland obtained separate counsel noting the potential for a conflict in positions between itself and Kern High School.  Later on, McFarland objected to SLS’s continued representation of Kern because SLS had previously acted for both parties.  McFarland argued the representation was a violation of Rule 5-102(B) and Rule 4-10111.  The trial court denied the motion.  The court noted that

SLS’s only representation of both Kern and McFarland in the Elliott proceeding consisted of filing points and authorities and arranging an extension of time for these parties to answer.  These points and authorities were almost exclusively a memorandum of law supporting denial of liability by both.

Id., 165 Cal. App. 3d at 567-68.

The court held that there was nothing in the rules that prohibits a lawyer from taking employment "adverse to a former client if the matter has no relationship to confidential information acquired by reason of or […]

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