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. (Because of the time-sensitive nature of the following topic, part two of “Disclosing Prior Relationships with Witnesses and/or Parties” has been postponed to the next Ethics Corner in two weeks.)

Disclosing Prior Relationships with Witnesses and/or Parties (Part one of two; part two will follow in the next column in two weeks):
Many are generally aware of the ethical rules for disclosing conflicts of interest, e.g., representation of multiple parties in the same matter. However, disclosure of current/prior relationships with other parties or witnesses is often overlooked. Regardless of whether the attorney believes such a relationship will benefit or potentially hurt a current client, written disclosure is generally required. (Rule of Professional Conduct 3-310(B)(1-4) [Avoiding the Representation of Adverse Interests].)
Consider this hypothetical: Attorney once represented the opposing party, a corporation, in a completely unrelated legal matter years ago. Nonetheless, the opposing corporation requests that attorney withdraw from representation of the current client because of the prior representation. Upon attorney declining, the corporation brings an unsuccessful motion to disqualify. However, the corporation still feels it is wrong for the attorney to stay in the case, and decides to act very contentiously and uncooperatively for the balance of the case, ultimately resulting in greater legal fees to the current client because of motions to compel discovery and overall very aggressive legal tactics spurred on by the hard feelings. 
If you were the current client would you not have wanted to know at the commencement of representation how “the previous relationship would substantially affect [your lawyer’s] representation” of you? (Rule 3-310(B)(2)(b).) Should attorney not disclose that it might be in the client’s best interest to retain other counsel who has no background with the opposing party? In addition to simply providing written disclosure (subd. (A)(1 and 3), (B)), consider obtaining the client’s “informed written consent” as a safer and more thorough measure. (Subd. (A)(2).)
--Luis E. Ventura
**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.**