Ethics Opinon 1993-2

I
QUESTION PRESENTED

A law firm has represented a client charged with a serious felony. The client was convicted. Later, the client is killed and another person is charged with his murder. May the law firm ethically represent the accused murderer? Does it matter that the deceased client was convicted of a crime of violence and his accused murderer claims the killing was in self defense? Does it matter that the law firm has no confidential information from the deceased client which might be of help in defending his accused murderer?

II
SUMMARY

The attorney-client relationship places an attorney in a fiduciary relationship with he [sic] client. It is generally improper for an attorney to act contrary to, or assume a position inconsistent with, the interests of a present or former client. In addition to this fiduciary relationship, an attorney has a duty to maintain inviolate the confidences of a former or present client and a duty of loyalty. These duties survive the death of the client. A law firm's representation of someone charged with the murder of a former client of the firm presents a grave danger of a conflict between the firm's duty to the former, now deceased, client and the duty to the current client.

III
APPLICABLE RULES

1. Business and Professions Code Section 6068(e).
2. Evidence Code Section 952.
3. Evidence Code Section 953.
4. Evidence Code Section 954.
5. Rule 3-310 of the California Rules of Professional Conduct.

IV
ANALYSIS

A. THE DUTY TO MAINTAIN CLIENT CONFIDENCES

Business and Professions Code Section 6068 clearly states that an attorney must "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client". (See also People v. Lopez, (1984) 155 Cal.App.3d 813, 826.) Opinion No. 353 of the Los Angeles County Bar Association Formal Opinions states,
"The confidentiality of the lawyer-client relationship is a very strong principle in California. Exceptions to it are strictly construed. The lawyer should, before failing to preserve the confidences and secrets of this client, be quite satisfied that he falls within an exception to the principle. He truly acts 'at every peril to himself' in failing to preserve these confidences and secrets."

Rule 3-310 of the California Rules of professional Conduct provides, in pertinent part,

". . .(B) A member shall not accept or continue representation of a client without providing written disclosure to the client where:

(1) The member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; or

(2) the member knows or reasonably should know that:

(a) the member previously had a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; and

(b) the previous relationship would substantially affect the member's representation; or

(3) The member has or had a legal, business, financial, professional, or personal relationship with another person or entity the member knows or reasonably should know would be affected substantially be resolution of the matter, . . .

(E) 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"

Under these rules, the firm in the hypothetical outlined above must not represent the second client if said representation could require the firm to disclose the secrets of the first client.

The conflict is illustrated in the following factual scenario: If the murder prosecution proceeds as a capital case, problems of a conflict of interest and duty of loyalty present themselves in both the guilt and penalty phases. In the guilt phase, evidence of the former client's propensity for violence --evidence which the firm may have obtained as a result of their representation --is relevant to effective preparation and presentation of a self-defense theory.(1) This evidence may have been obtained as a direct result of communications with the client, communications with family/friends of the client, and/or investigations of the client and the case. Even if the firm gained no such evidence from representation of their former client, their duty of loyalty to that individual should preclude their current representation. "Loyalty is one of the most important aspects of a lawyer's relationship with his client." Comment, RPC [ABA Rules of Professional Conduct 1.7] CPR canon 5 (ABA Code of Professional Responsibility). Thus it is a violation of that duty for an attorney to assume a position adverse or antagonistic to his or her client. Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1143, quoting Betts v. Allstate, Ins. Co. (1984) 154 Cal.App.3d 688, 714. This duty is owed to former as well as present clients. David Welch Co. v. Erskin & Tulley (1988) 203 Cal.App.3d 884, 891; Kallen v. Delug (1984) 157 Cal.App.3d 940, 950-951. By pursuing a self-defense theory and presenting evidence as to violent propensity of their former client, the firm is violating its duty to not assume a position adverse or antagonistic to their client.

Representation of the former client and now victim also presents conflict problems in the penalty phase of the capital prosecution. Effective preparation concerning "victim impact evidence" is an area which could be greatly influenced by information obtained from the previous representation since the firm may have learned information from their former client that would have an effect on rebuttal of such evidence. Additionally, if as a result of the prior representation, the firm learned of uncharged violent criminal acts of their former client, presentation of such evidence could be relevant to presentation of evidence in mitigation.

Representation of the former and current client, regardless of the severity of the charges against the former client, effectively constitutes an attorney "switching sides" (see discussion below of Henrickson v. Great American Savings & Loan (1992) 11 Cal.App.4th 109).

B. THE DUTY TO MAINTAIN CLIENT CONFIDENCES SURVIVES THE DEATH OF THE CLIENT.

Evidence Code Section 953 defines the holder of the attorney-client privilege as:

(a) the client when he has no guardian or conservator, or. . .
(c) the personal representative of the client if the client is dead.

Opinion No. 414 (April 29, 1983) of the Los Angeles County Bar Association Formal Opinions states, "It is well established that the attorney-client privilege is not destroyed by the death of the client". Citing State v. Doster, 284 S.E.2d 218 (S.C. App. 1981); State v. Macumber, 112 Ariz. 569, 544 P.2d 1084 (1976); Trupp v. Wolff, 24 Md.App. 588, 335 A.2d 171 (1975).

Even beyond statutorily privileged communications, however, all client confidences and secrets are protected. Business and Professions Code Section 6068(e) states that it is the attorney's duty to preserve the secrets of her client. Period. In Stockton Theaters, Inc. v. Palermo, (1953) 121 C.A.2d 616, the court stated, ". . .the attorney's lips are forever, sealed." Id. p. 625. There is no authority that permits the attorney to disclose the client's secrets simply because the client is dead. Therefore, it makes no difference that the first client, in the hypothetical outlined above, is deceased.

C. REPRESENTATION OF A FORMER CLIENT'S ACCUSED MURDERER POSES AN INHERENT CONFLICT.

An attorney is forbidden to use against a former client any confidential information that was acquired during that client relationship. Leversen v. Superior Court (1983) 34 Cal.3d 530, 538. Formal Opinion No. 1981-59, issued by the State Bar of California, stated that it is improper for counsel to continue representing either defendant charged in two separate, unrelated criminal cases once counsel becomes aware that on [sic] of these defendants is attempting to become, or has become, an undercover informant against the other defendant.

Formal Opinion No. 1980-52, issued by the State Bar of California concluded that it is improper for counsel in a criminal case to represent a defendant where a previous client of that attorney's office is a witness against the new client and it is reasonably foreseeable that the confidences or secrets of the former client may be, or may reasonably appear to the client to be, used. In so concluding, the Committee stated,

"Information furnished innocuously or irrelevantly by the first client can unexpectedly become critical to the defense of the second. Thus, while it may be possible to skate upon the thin ice which divides the loyalties each client expects and not break through the fragile edge of ethics, it is doubtful that many such cases will see this happen without substantial cracking of one's professional responsibility" CAL 1980-52, page 2.

"In a case of joint representation of conflicting interests, the evil...is in what the advocate finds himself compelled to refrain from doing..." Holloway v. Arkansas 1978) 435 U.S.475, 490 (emphasis in original). In Earl Scheib, Inc. v. Superior Court, (1967) 253 C.A.2d 703, 707, the court stated,

"...the subsequent representation of another against a former client is forbidden not merely when the attorney will be called upon to use confidential information obtained in the course of the former employment, but in every case when, by reason of such subsequent employment he may be called upon to use such confidential information."

A former client may seek to disqualify an attorney from representing an adverse party by showing that the former attorney possesses confidential information adverse to the former client. It is not necessary to prove actual possession of confidential information; it is enough to show a "substantial relationship" between the former and current representation. Global Van Lines, Inc. v. Superior Court, (1983) 144 Cal.App.3d 483, 489; Civil Service Comm. v. Superior Court, (1984) 163 Cal.App.3d 70, 80. If the former client can prove the existence of a substantial relationship between representations, there is a conclusive presumption that the attorney possesses confidential information adverse to the former client. River West, Inc. v. Nickel, supra, 188 Cal.Rptr. at 1303.

A former client need not prove that the former attorney possesses confidences which could be used to the disadvantage of the former client. Rather, the proscription is against subsequent representations on the ground that such representations, because of their substantial relationship to one another, place the attorney in a situation where he or she could breach the duty of confidentiality to the former client. Id. at 1303.

A problem inherent in the "substantial relationship" approach is the definition of the two words. H.F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1453:

Thus, the rule followed in California is that the attorney's possession of confidential information will be presumed only when a substantial relationship has been shown to exist between the former representation and the current representation, and when it appears by virtue of the nature of the former representation or the relationship of the attorney to his former client confidential information material to the current dispute would normally have been imparted to the attorney.

Under the Global Van Lines formulation of the test, the courts focus less on the meaning of the words "substantial" and "relationship" and look instead at the practical consequences of the attorney's representation of the former client. The courts ask whether confidential information material to the current dispute would normally have been imparted to the attorney by virtue of the nature of the former representation. Id. at 1454.

The foregoing discussion shows that the scope of the representation of the deceased client may make a difference in determining whether the firm can represent the alleged murderer of the first client. For example, if the firm defended the first client for a traffic violation, the scope of the attorney client relationship will have necessarily been more shallow than had the firm represented the deceased client on an assault charge. But because "information furnished innocuously or irrelevantly by the first client can unexpectedly become critical to the defense of the second", the prudent course is to avoid representation of the alleged murderer of the first client.

Goldstein v. Lees (1975) 46 Cal.App.3d 614, 620 provides,

"...clients are entitled to vigorous and determined representation by counsel. It is difficult to believe that a counsel who scrupulously attempts to avoid the revelation of former client confidences -- i.e., who makes every effort to steer clear of the danger zone -- can offer the kind of undivided loyalty that a client has every right to expect and that our legal system demands..."

The constitutional right to counsel in criminal cases entitles the defendant to effective assistance. Included in the right to the effective assistance of counsel is a correlative right to representation that is free from conflicts of interest. People v. Bonin, 47 Cal.3d 808. A criminal defendant expects and deserves the undivided loyalty of his or her counsel. It is therefore advisable for the firm faced with the hypothetical outlined above to declare a conflict of interest. While at the outset it may appear that the firm obtained no confidential information from the first client, developments in the case may blur this issue. To represent the second client would be to "skate upon the thin ice" and would inevitably lead to "the substantial cracking" of the firm's professional responsibility.

D. UNDER THE FACTUAL SCENARIO OUTLINED ABOVE, THE PRESUMPTION IS AGAINST THE WAIVER OF CONFLICT-FREE ASSISTANCE OF COUNSEL

Although the right to conflict-free counsel may be waived, such waivers must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. An appellate court will indulge every reasonable presumption against the waiver of unimpaired assistance of counsel. People v. Mroczko (1983) 35 Cal. 3d 86, 110. However, courts have not been consistent in rulings concerning the issue of waiver of a conflict of interest.

"While attorneys are often in a position to waive many important rights of their clients, they do so presumably based upon a judgment made solely in the best interests of that client. When a conflict of interest is involved, however, that judgment is impaired because of conflicting loyalties and commitments. An attorney who is burdened with a conflict of interest cannot, by the very nature of the problem, be giving the client 'the professional judgment of a lawyer...solely for the benefit of his client and free of compromising influences and loyalties"'. People v. Mroczko 35 Cal.3d. 86, 112, citing Hyman, Joint Representation of Multiple Defendants in a Criminal Trial: The Court's Headache (1977) 5 Hofstra L.Rev.315, 333-334; United States v. Lawriw, (8th Cir. 1977) 568 F.2d 98, 104. (See also People v. Barboza (1981) 29 Cal.3d 375 regarding financial disincentives to find potential conflicts of interest. The firm in the hypothetical outlined above would clearly have a financial disincentive to find the potential conflict of interest.)

Although it may initially appear that only innocuous confidential information was received from the deceased client, development of the second client's case may prove otherwise. A waiver of any conflict from the second client cannot be truly knowing. The prudent course of action is for counsel to avoid representation of the second client.

E. WILL THE ERECTION OF "GLASS WALLS" EFFECTIVELY ISOLATE THE POTENTIAL CONFLICT?

Having concluded that it would be in appropriate for the individual attorney who represented the first client to represent that client's alleged murderer, we must now address whether it would be appropriate for the attorney's firm to represent the second client. In the context of the hypothetical considered in this opinion, it would not.

No California Rule of Professional Conduct discusses this "imputed disqualification" issue.(2) California case law addresses distinguishable variations of the issue. ABA Model Code of Professional Responsibility, Disciplinary Rule 5-105(D) states, "If a lawyer is required to decline employment or to withdraw from employment under Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment". (The American Bar Association Model Rules of Professional Conduct, like sister state rules and court opinions, are not binding in California, although they may be persuasive in those instances where there is no controlling Rule of Professional Conduct, statute or court ruling in California. (See State Bar Formal Opn. No. 1993-128)). ABA Model Rule 5-105(D) clearly states that the law firm in our hypothetical could not defend the alleged murderer of the firm's former client.

The federal courts follow the pragmatic approach which consists of an examination of the nature of the former representation. In Silver Chrysler Plymouth, Inc. v. Chrysler Mot. Corp., 518 F.2d 751, 757 (2nd Cir. 1975), the court explained that the substantial relationship test is "intended to protect the confidences of former clients when an attorney has been in a position to learn them." The court differentiated between lawyers "who become heavily involved in the facts of a particular matter and those who enter briefly on the periphery for a limited an specific purpose relating solely to legal questions." Id. at 756.

In H.F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal.App.3d at 1455, the court commented "Therefore, to apply the remedy of disqualification 'when there is no realistic chance that confidences were disclosed would go far beyond the purpose' of the substantial relationship test." The Ahmanson court proceeded to apply the concurring opinion of Judge Adams in Silver Chrysler to the case.

Judge Adams suggested the court should "focus on the similarities between the two factual situations, the legal questions posed, and the nature and extent of the attorney's involvement with the cases. As part of the review, the court should examine the time spent by the attorney on the earlier cases, the type of work performed, and the attorney's possible exposure to formulation of policy or strategy. (518 F.2d at p. 760 (Adams, J., conc.).)

H.F. Ahmanson & Co. v. Salomon Brother, Inc., supra, 229 Cal. App.3d at 1455; Also see, Rosenfeld Construction Co. v. Superior Court, 235 Cal.App.3d 566, 576.

Although the factual scenario differs from the one addressed in this opinion, Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109 is instructive. in Henriksen, during the pendancy of a lawsuit regarding a construction loan made by defendants to plaintiffs, an associate working for the law firm representing defendants left the firm and joined the firm that represented plaintiffs. The associate possessed confidential information regarding defendants. Defendants filed a motion to disqualify the entire law firm representing plaintiffs. Plaintiffs opposed the motion, contending that they had isolated the associate behind an "ethical wall". The trial court granted the motion, ruling that the entire firm representing plaintiffs was disqualified from further representation. The Court of Appeal affirmed.

The Henriksen court concluded that because the associate possessed confidential information, Rule 3-310 of the California Rules of Professional Conduct prohibited him from switching sides and representing plaintiffs in the same litigation. Turning to the question of whether the associate's new firm should be barred from representing plaintiffs as well, the court observed, "As a general rule in California, where an attorney is disqualified from representation, the entire law firm is vicariously disqualified as well" Id. p. 114, citing Klein v. Superior Court (1988) 198 Cal.App.3D 894, 909, 912-913, William H. Raley Co. v. Superior Court (1983) 49 Cal.App.3d 1042, 1048-1049, Dill v. Superior Court, (1984) 158 Cal.App.3d 301. The Henriksen court further stated,

"We recognize that the ethical wall concept has had some limited acceptance in California as a method to avoid what might be the unduly harsh result of vicarious disqualification of an entire firm. But that acceptance had been in a very different arena -- that of former government attorneys now in private practice -- and that involved a situation in which the former government attorney has not had access to confidential information concerning the subject matter of the litigation." Id. p. 115, citing Chambers v. Superior Court, (1981) 121 Cal.App.3d 893, 903.

The facts of Henriksen -- where an attorney switches sides during the pendancy of a case -- are analogous to the factual situation posed in our hypothetical. Where a law firm represents Client A, but then later represents Client B, who has allegedly victimized Client A, the law firm has effectively "switched sides" from being the advocate or protector of Client A to essentially an adversary of Client A. Having "switched sides", Henriksen prohibits the law firm that previously represented Client A from undertaking the defense of Client B.

V
CONCLUSION

Under the factual scenario considered in this opinion, the law firm may not ethically represent the accused murderer of the former client. The Committee so concludes based upon its conclusion that an attorney's duty to the client survives the client's death. The former client is therefore unavailable to consent to either the proposed representation of conflicting interests, or the risk of revealing confidential information. The conflict and associated risk is highlighted by, but not dependent upon, the factual variation in which the victim's prior conviction is assumed to be for a violent felony while the alleged murderer intends to claim self-defense.

The Committee further concludes that, under the facts presented, the law firm may not conclude at the outset that it is not in possession of confidential information relevant to the later representation. It is not always possible to ascertain the significance of information possessed by the firm at the beginning of a case. Furthermore, the former client (who is in the best position to determine the materiality of the confidential information in the law firm's possession) is not available. To make such an assumption would therefore jeopardize the firm's duties to both the former and current client.

This opinion is advisory only, and is not binding on the San Diego County Bar Association, its officers or agents, the State Bar of California or any court.

1. Such evidence could also be presented during a penalty phase in which admission of evidence of "lingering doubt" as to the current client's culpability for first degree murder (i.e., the self defense theory) or as evidence of the circumstances of the offense pursuant to Penal Code section 190.3(a).
   
   
2. The Committee has considered the following cases, yet finds them distinguishable from the facts addressed by this opinion: People v. Clark 5 Cal.4th 950, 1001 (1993), held the defendant was not prejudiced by his public defender's having previously represented four prosecution witnesses (neither the public defender nor the public defender's office was representing any of the witnesses at the time of their cross examination); the recusal cases, i.e.,: People v. Hernandez 235 Cal.App.3d 674; State Bar Opinion 1993-128. The district attorney recusal cases and the issues posed by our factual scenario are distinguishable. In the instance case, the issues are the duty of loyalty and the duty to maintain client confidences. In the district attorney recusal scenario, the interest protected is ensuring the prosecutorial agency does not abuse its discretionary authority (See Hernandez, p. 678).

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.