Ethics Opinon 1984-2

I
QUESTION PRESENTED

Attorney A represents husband in a divorce proceeding for a 10-day period. This representation is limited to the property settlement agreement only. At a later time, wife requests that Attorney A represent her at a spousal support hearing.

Husband's new attorney, Attorney B, believes that Attorney A cannot represent wife and writes Attorney A a letter stating that he will request an opinion from the Ethics Committee of the County Bar Association concerning Attorney A's conduct.

1. May Attorney A represent wife at the support hearing? What type of consent is required to allow such representation?

2. Should Attorney A be disqualified from representing wife in future related proceedings?

3. Is Attorney B "threatening" action within the meaning of rule 7-104 by writing Attorney A that he is requesting an Ethics Opinion?

II
SUMMARY

In undertaking to represent a new client who has interests which conflict with a prior or existing client, California Rule of Professional Conduct 4-101 must be strictly followed. Attorney A is therefore required to seek informed and written consent from his prior client, husband, before undertaking wife's representation at the support hearing. By undertaking wife's representation in a "substantially related" matter, Attorney A would create a presumption that he might use confidential information obtained in the prior representation to benefit his subsequent client. Thus, if informed, written consent is not obtained, Attorney A would be violating rule 4-101, and should be disqualified from representing wife in future related proceedings.

Attorney B's action in requesting an Ethics Committee Opinion concerning A's conduct does not fall within the purview of rule 7-104. The Ethics Committee of the San Diego County Bar Association provides opinions that are advisory only, to assist members of the bar in understanding their ethical obligations. Seeking such advice is recommended as a means of avoiding or resolving ethical problems.

III
ANALYSIS

1. Conflict of Interest

California Rules of Professional Conduct, rule 4-101 states:

"A member of the State Bar shall not accept employment adverse to a client or former client, without the informed and written 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."

The purpose of rule 4-101 is to protect the confidential relationship that exists between attorney and client by preserving the client's secrets. Quaglino v. Quaglino (1979) 88 Cal.App.3d 542; People v. Johnson (1980) 105 Cal.App.3d 884.

This Rule does not prohibit subsequent representation of an adverse party in an "unrelated" matter, or in instances where the relationship to the prior representation is only incidental to the subsequent controversy. However, if the subject matter of the subsequent representation is "related," as in the facts presented here, a conflict of interest exists and the attorney may not undertake to represent the wife. Even if the attorney claims that he is not aware of any confidential information from his former client that would be prejudicial, he still may not take the case without informed, written consent. The presumption arises as a matter of law that the attorney did acquire confidential information relevant to the current representation. On facts such as those presented in this case, this presumption has traditionally been irrebuttable. Therefore, Attorney A will not be permitted to claim that he did not receive any confidential information in his prior representation of husband; under the facts of this case, it is immaterial that confidential information never actually passed to the subsequent client. Cord v. Smith (9th Cir. 1964) 338 F.2d 516.

In the instant case, Attorney A represented husband in a divorce proceeding and then sought to represent wife at the subsequent support hearing. The interests of husband and wife are clearly conflicting and any dispute over income or property would obviously be "substantially related" to the terms of distribution made under the property settlement agreement at which Attorney A represented husband. The court would presume that Attorney A obtained confidential information during the prior representation and will use that information to benefit wife in any subsequent representation.

2. Informed, Written Consent

In order to represent the wife, Attorney A must strictly comply with rule 4-101, requiring informed, written consent of husband to the subsequent representation of wife. Attorney A is required to make complete disclosure to husband concerning any adverse results which could foreseeably affect husband's interests due to Attorney A's representation of wife.

Only if Attorney A had made such complete disclosure to husband, who then chooses to give his consent in writing to Attorney A's representation of wife, may Attorney A undertake wife's representation. Attorney A must also make full disclosure of the conflict to his new client, wife.

Moreover, even after obtaining "informed consent," Attorney A should be reluctant to accept such conflicting representation. Many problems can arise. For example, at some later point in time, husband may regret having given his consent or may believe that he has been substantially injured by having given it; husband may then argue that the attorney failed to properly inform him of the risks he was incurring by giving his consent. The careful practitioner would scrutinize this situation with extreme caution, and draft a consent/disclosure agreement in the same matter.

3. Advisory Opinions of the Ethics Committee

All opinions of the Ethics Committee of the San Diego County Bar Association are advisory only. The Ethics Committee has no disciplinary authority, and is maintained solely as an advisory service to members of the bar.

In the instant case, Attorney B requested an advisory opinion and Attorney A then inquired whether this request for an opinion constituted a violation of rule 7-104 of the Rules of Professional Conduct. Rule 7-104 states:

"A member of the State Bar should not threaten to present criminal, administrative or disciplinary charges to obtain an advantage in a civil action . . ."

In the instant case, Attorney A did not threaten criminal, administrative or disciplinary action; he only sought an advisory opinion. It is true that in some cases of unethical behavior, the Ethics Committee may refer matters to the State Bar for possible discipline, but the Ethics Committee does not itself have disciplinary authority. Further, members of the bar are encouraged to seek advisory opinions from the committee; this is a free service provided by the County Bar Association, and it is available to all members.

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.