Ethics Opinon 1976-16

December 23, 1976

SUBJECT: REPRESENTATION OF THE COUNTY BOARD OF SUPERVISORS BY THE COUNTY COUNSEL'S OFFICE IN LITIGATION BROUGHT BY OTHER COUNTY ELECTED OFFICIALS AGAINST THE BOARD OF SUPERVISORS, WHICH COUNTY COUNSEL'S OFFICE ALSO REPRESENTS IN OTHER SEPARATE LITIGATION

I
QUESTION PRESENTED

The County Charter states that the County Counsel will represent all elected officials in the County, including members of the Board of Supervisors, the District Attorney, the Sheriff and the Treasurer. The District Attorney, Sheriff and Treasurer have brought suit against the Board of Supervisors. The County Counsel has opted to represent the Board of Supervisors in such law suit over the objections of the parties and is additionally representing the Board of Supervisors in an action against the Sheriff and the District Attorney over the objections of the Defendants. The County Counsel continues on a day-to-day basis to represent the Sheriff, District Attorney and the Treasurer in other litigation. May County Counsel ethically continue to represent the Board of Supervisors in litigation against other County elected officials and continue to represent such elected officials in the separate litigation?

II
SUMMARY

The County Counsel's Office, due to its charter obligations and past representations of all concerned parties, cannot represent any of the litigants as presented in the described factual situation. This prohibition would stand even if the District Attorney's Office, Sheriff and the County Treasurer gave an informed consent to the County Counsel's Office to represent the Board of Supervisors against the other elected officials in the above-described litigation.

III
STATUTES, CANONS AND COUNTY CHARTER SECTIONS

The County Charter provides in Article Six, Section 31, that:

The County counsel shall represent and advise the Board of Supervisors and all County, Township and School District Officers in all matters pertaining to their duties, and it shall be his duty to defend or prosecute any and all civil actions and proceedings in which the County, or any officer in his official capacity is a Defendant in any action prosecuted by the State or County.

By this provision, the County Counsel is counsel for both the District Attorney, the Sheriff, the County Treasurer and the Board of Supervisors.

When two clients come into conflict, Business and Professions Code, Section 6076, requires that the attorney for the two clients obtain the written consent of both parties before proceeding as counsel in the conflict. Rule 4-101 thereunder provides:

A member of the State Bar shall not accept employment adverse to a client or former client, without the informed consent of the client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client.

Rule 5-102 requires that an attorney also obtain the written consent of the party he is representing in the new litigation.

The American Bar Association Code of Professional Ethics, Ethical Consideration 5-19 provides:

If the client decides for whatever reason, that the arrangement is undesirable, whereby the attorney representing him is now seeking to represent another client against him, then the attorney must defer to that opinion and withdraw, regardless of his own belief in the propriety of the representation.

The prohibition of such conduct in the filing by an attorney against a present or former client on behalf of the new client extends to all members of the firm or other lawyers with which the attorney is affiliated. American Bar Association Code of Professional Conduct, EC 5-14 provides in part:

To maintain the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client.

See also DR 5-105 in the American Bar Association Code for more detailed rules regarding the impairment of independent judgment.

IV
OPINIONS

Representation of one client in a controversy with another client is permissible if informed and written consent is given or if the two matters are unrelated and there is no possibility of the attorney using information obtained from the nonrepresented client. San Diego County Bar Ethics Opinion 1974-14 and 1974-15.

An attorney may not represent one client against a former client or present client if the matters are "substantially related" to matters involved in the present or former employment. This rule is aimed at insuring that the client feel confident in his attorney when he discloses information to that attorney. When an attorney is presently counsel for both parties, it has been held in some opinions that the attorney must obtain consent of the unrepresented client before information that may have been obtained in the former representation of that client may be utilized. New York County Lawyers' Association Opinion 54 (1967 N.Y. Co. Y.B. 257).

In Florida Bar Opinion 65-41 issued in 1965 (Fla. Ops. 303) it was held that an attorney who from time to time represented an insurance company could accept employment against the company if he was not on a retainer with the company and has not received any information which might be used against one of the parties; he could not "of course" accept such employment if he was currently representing the company in a pending matter.

It has been held in numerous opinions that if a client decides for whatever reason that the arrangement whereby his present or former attorney is now taking part in a litigation against him, is undesirable, the attorney must defer to that opinion of the client and withdraw, regardless of his own belief in the propriety of the representation. San Diego County Bar Ethics Opinion 1974-13 and Arizona Bar Association Opinion 248 issued in 1968 (6 Ariz. B.J. 40 of 1970).

Contrary to the above paragraph, Oregon Bar Opinion 190 issued in 1970 (31 Ore. S. B. B.) held that where the lawyer requests permission from Client A to represent Client B against A and is refused permission, whether the lawyer may go ahead with the representation depends on whether he still owes any professional responsibility to A, even though this may be in some unrelated matter. If he does not, he may represent B against A. It was assumed that the representation would not involve actual or apparent use of information obtained during former representation of A.

Another important opinion which must be considered here is whether or not the District Attorney can give informed consent as required by the Statutes and Rules of this State where the public interest is involved. See Los Angeles County Bar Informal Opinion 1958-9.

The Committee on Ethics and Professional Responsibility of the American Bar Association ruled in Formal Opinion 16 that one member of a law firm may not represent criminal defendants who are being prosecuted by another member of the firm who holds the office of prosecuting attorney. In this and many subsequent opinions, the Committee held that, "No question of consent can be involved as the public is concerned and it cannot consent."

San Diego Ethics Opinion 1975-19 held that even where there is no conflict of interest, an impairment of independent judgment would be sufficient to make such above-described representation improper.

San Diego Ethics Opinion 1970-2 said that where the above-described representation gives the appearance of professional impropriety, then such representation may in and of itself become unethical.

V
CASE AUTHORITIES

In the case of Goldstein vs. Lees, 120 Cal. App.3d 614 (1975), the Appellate Court stated that the primary purpose of Rule 4-104 is to protect the confidential relationship which exists between attorneys and clients and that the rule does not prohibit an attorney from accepting employment adverse to a former client if the matter has no relationship to confidential information.

The case of Galbraith vs. State Bar. 218 Cal. 329, stands for the proposition that an attorney for a Defendant in a criminal proceeding may not appear as counsel for Plaintiff in a subsequent civil action against the Defendant based upon the same conduct. The reasons being that the matters are "substantially related" to the matters involved in the former employment. See also Cons. Theatres v. Warner Bros., 216 F. 2d 920.

The case of T.C. Theatre Corp. vs. Warner Bros., 113 F. Supp. 265, stands for the proposition that the former client need not show that the lawyer actually obtained information which could be used in a second law suit, but only that there is such a possibility.

The California statutory rule specifically provides that written consent must be obtained. Some Bar Associations and Courts have held that even such consent may not be sufficient to permit the attorney to continue in the representation. In the Matter of Cherry, 240 N.Y.S. 242, the Court held that where divided loyalties are inescapable, in particular where the attorney was representing both adversaries in litigation, the representation would be improper even if consent was obtained.

VI
ANALYSIS

All of the above-cited authorities make it abundantly clear that the County Counsel's Office cannot represent the Board of Supervisors in an action where the other side is made up of one or more of the elected officials of the County, unless the elected officials not being represented make an informed consent to such representation by the County Counsel's Office of the Board, and the Board itself makes an informed consent to such representation. Even with such informed consent the following must be considered:

A. Whether or not County Counsel in attempting to take sides in the situation could maintain independent judgment and;

B. Whether or not the factual situation described in the request for this opinion, would give the appearance of professional impropriety to such extent as to make the continued representation unethical.

A. This committee has not been given the actual facts surrounding the suits involved, so the answering of this question is difficult. It would seem that on its face, the divided loyalty of the Count Counsel's Office to its respective clients would axiomatically impair its independent judgment. It would be the opinion of this Committee based on the given facts, that County Counsel's independent judgment would be impaired and that representation even with informed consent of all parties would be improper.

If the requesting parties of this opinion wish a more thorough analysis of this aspect and feel that the facts and issues surrounding this litigation would show that such independent judgment would not be impaired, it is submitted that more extensive facts should be submitted to the Committee.

B. It is the opinion of this Committee that this type of Inter-Government litigation, with the legally authorized attorney for both sides taking the side of one body of elected officials (i.e. the Board of Supervisors) against another body of elected officials, (i.e. the District Attorney, the Sheriff and the County Treasurer), is litigation in which there is a clear and strong appearance of professional impropriety. For this reason, it is our opinion that even with informed consent, the County Counsel's Office cannot continue to participate in any of the above-described litigation.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.