Legal Ethics Corner

Ethics Corner 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.

Diamonds Are Forever.  Conflict Waivers, Maybe Not.

Most California lawyers are aware that they can represent conflicting interests as long as the conflict is appropriately waived with the informed written consent of the affected clients or former clients, as provided in California Rule of Professional Conduct 3-310.  And many lawyers work hard to make sure that those waivers conform to the demands of the rule, including disclosure of the “relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client or former client” (Rule 3-310(A)(1).)

But is that the end of the story?  What happens if one of the jointly represented or formerly represented clients revokes the consent?  The lawyer clearly must stop representing the revoking client but must she also stop representing the other client?

What happens now?  There is a relative dearth of California authority on the subject but one California case comes within spitting distance.  In Zador Corp. v. Kwan (1995) 31 Cal.App.4th 1285, an attorney had jointly represented defendants after a detailed waiver.  After withdrawing from representation because actual adversity had developed between the clients, the former client moved to disqualify.  The Court of Appeal reversed the trial court order disqualifying the law firm finding the former client had agreed as part of the conflict waiver not to disqualify the firm in the future “notwithstanding any adversity that may develop.”

            A little more specific guidance, not binding in California, is found in the Restatement of the Law Governing Lawyers section 122; comment f:

A client who has given informed consent to an otherwise conflicted representation may at any time revoke the consent... .  Revoking consent to the client’s own representation, however, does not necessarily prevent the lawyer from continuing to represent other clients who had been jointly represented along with the revoking client. Whether the lawyer may continue the other representation depends on whether the client was justified in revoking the consent (such as because of a material change in the factual basis on which the client originally gave informed consent) and whether material detriment to the other client or lawyer would result.  In addition, if the client had reserved the prerogative of revoking consent, that agreement controls the lawyer’s subsequent ability to continue representation of other clients.

So, lawyers, if you want those conflict waivers that you work so hard to craft to shine as brightly as diamonds in your clients’ future eyes, you might have to work just a little bit harder to contemplate and reach agreement on the consequences of waiver revocation as part of your disclosure of reasonably foreseeable adverse consequences.                                                                            

**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.**