Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Ethics Conflicts: Beware Simultaneous and Successive Conflicting Client Representations

A recent decision by the Second Appellate District provides an interesting, and cautionary example of how conflicts of interest may arise in unique and unforeseen ways.

Kim v. The True Church Members of the Holy Hill Community Church (2015) 236 Cal. App. 4th 1435, involved disputing “factions” within a Church who were vying against each other for control of the Church, its leadership, and ownership of its property.  The case functionally involved three parties:  (1) the first party was one of the dissenting “factions” of the Church and ultimately, the Appellants on appeal; (2) the second party was the Church’s “parent” organization and governing body, the Western California Presbytery (“WCP”); and (3) the third party was an opposing faction of the Church, which became the Respondents on appeal. The Appellants joined with the WCP as “Co-Plaintiffs”, to bring a lawsuit against the third party.  This second faction (Respondents) also brought a cross-complaint against the Appellants and the WCP. Both sides had claims for declaratory relief seeking to establish the respective rights of the parties with regard to church ownership.

“Switching Sides” and the Creation of a Conflict

Throughout the litigation, the Appellants and the WCP had been jointly represented by the same counsel.   Just prior to trial however, the “allegiances” of the parties changed. The WCP effectively “switched sides”; re-joining with the Respondents. Consequently, the WCP withdrew as a Co-Plaintiff and from the litigation entirely.  Respondents, in turn, dismissed their cross-claims against the WCP as well, but continued to pursue their cross-claims against the Appellants. Eventually, Appellants also dismissed their case and by the time the matter proceeded to trial, the only remaining cause of action was Respondent’s cross-claim for declaratory relief against the Appellants / cross-Defendants.

At trial, Appellants continued to be represented by their same counsel; the same counsel who had also represented WCP when it was still in the case.  Respondents—now aligned with the WCP—intended to call certain WCP witnesses in their case in chief and did so on the third day of trial. Notably however, Respondents moved the Court for an Order preventing Appellants’ counsel from cross-examining the WCP witnesses, arguing that the Appellants’ attorneys had previously represented the WCP and accordingly, any cross-examination of their former clients would be a violation of their ethical duties. This was, in effect, a motion to disqualify counsel made on the third day of trial. The trial court agreed with Respondents, prohibited any cross examination of the WCP witnesses, and Respondents prevailed.

On Appeal, the Kim Court affirmed, agreeing that a conflict existed and holding it was appropriate for the trial court to bar Appellants’ counsel from cross-examining their former clients. The Kim Court noted at the outset that trial courts have “inherent power” to control the conduct of persons in connection with a judicial proceeding before it; power that includes the “authority to disqualify an attorney who violates California’s ethics rules.”  The Court provides an exhaustive discussion of the importance of the conflict-of-interest rules and the overarching goal of protecting the public and the integrity of the legal system; a goal which may, at times, subvert the interests of an individual’s choice of counsel: “The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.”

Appellants argued, inter alia, that their attorneys had not actually received or obtained any confidential information during their prior representation of the WCP and thus, should not be deemed to have an actual conflict. The Court rejected this argument and noted that because Appellant’s counsel had served as counsel of record for WCP in the same case, its representation was, by definition, “substantially related” to their continued representation of the Appellants. Accordingly, the Court explained, access to and receipt of confidential information by those attorneys with respect to the WCP “is presumed and disqualification of the attorney’s representation of the second client is mandatory.” The Court concluded: “[c]ross-examining a former client results in an “actual conflict” prohibited under [rule of professional conduct] 3-310.”

While the underlying subject matter of the Kim decision may or may not be of interest to you, the decision provides an excellent review of the applicable rules and responsibilities attorneys face with respect to conflicts of interest, however they may arise.

– Patrick Kearns

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**