Ethics Opinon 1976-16
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
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?
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.
STATUTES, CANONS AND COUNTY CHARTER SECTIONS
County Charter provides in Article Six, Section 31, that:
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.
provision, the County Counsel is counsel for both the District
Attorney, the Sheriff, the County Treasurer and the Board
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
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.
5-102 requires that an attorney also obtain the written
consent of the party he is representing in the new litigation.
American Bar Association Code of Professional Ethics, Ethical
Consideration 5-19 provides:
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.
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:
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.
also DR 5-105 in the American Bar Association Code for more
detailed rules regarding the impairment of independent judgment.
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.
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).
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.
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).
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.
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.
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."
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
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.
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
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.
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.
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
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:
Whether or not County Counsel in attempting to take sides
in the situation could maintain independent judgment and;
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
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.
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.
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.
opinion is advisory only. It is not binding upon the State
Bar, the Board of Governors, its agents or employees.
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.