By Joan C. Rogers
When a prospective client's representation will entail serving a discovery subpoena on a current client of the lawyer's firm, the firm may accept the new matter if, after full disclosure, both clients agree in writing to waive the conflict, the California bar's ethics panel has advised (California State Bar Standing Comm. on Professional Responsibility and Conduct, Formal Op. 2011-182).
Conducting discovery would be “adverse” in that it has the potential to cause injury, the committee acknowledged. But it concluded that this conflict of interest can be cured with informed written consent. Lawyers considering whether to take on a new matter should check for conflicts with those who are potentially adverse, including reasonably foreseeable witnesses, the opinion recommends.
The opinion discusses whether a lawyer may accept a proposed representation if a conflict check reveals that a potential witness who has critical documents is already represented by another lawyer at the same firm in an unrelated matter.
The committee concluded that serving a document subpoena on a witness client is “adverse” to the interests of that client under California decisions on conflicts of interest as well as California Rule of Professional Conduct 3-310, which addresses a lawyer's representation of adverse interests.
In reaching this conclusion, the committee defined “adverse” as “potential injury.” Serving any type of third-party discovery involves potential injury, it found, because the lawyer might be inclined to hold back in making or enforcing discovery demands, and the documents in question could expose the witness client to claims from the other client.
What if the prospective client wants to retain the lawyer anyway despite the looming conflict? The committee decided that the lawyer may accept the representation and serve a document subpoena on the other client, but only if the lawyer believes she can fulfill her professional duties and obtains informed written consent from both clients before accepting the new representation.
To obtain informed consent, the committee advised, the lawyer must disclose to each client the relevant facts and circumstances, including “the reasonably foreseeable adverse consequences” of waiving any conflicts arising out of the representation of the prospective client and service of a document subpoena on the witness client.
For example, it said, the prospective client should be informed about the lawyer's need to disclose relevant information to the witness client, and the risk that the firm's loyalty to the prospective client may conflict with its loyalty to the witness client. The lawyer also may need to address the possibility that the witness client will contest the subpoena and that the firm will not be able to pursue enforcement of the subpoena without the witness client's consent.
Disclosure to the witness client involves similar considerations concerning client identity, confidential information of the prospective client, and potential favoritism toward the prospective client, the panel added. The prospective client's consent may be required for the lawyer to tell the witness client the relevant facts and circumstances involved in the prospective client's litigation, the opinion notes.
Furthermore, the committee said, the lawyer may need to tell the witness client that the subpoena might request confidential or sensitive documents and that the lawyer may be required to pursue enforcement of the subpoena and should seek consent to do so.
The committee said that unlike the ABA Model Rules, “the California Rules of Professional Conduct do not address conflicts checks by attorneys as part of client representation.”
Nevertheless, it said, except in exigent circumstances or when providing certain pro bono limited legal services under Rule 1-650, “the attorney should check for any potential conflicts with those who are adverse and potentially adverse, including reasonably foreseeable parties and witnesses, before accepting representation of a client.”
Conflicts checks should be refreshed when new parties and witnesses show up during a representation, the committee added.
In a footnote, the committee commented that the opinion does not address whether a lawyer ethically may do anything other than decline the representation if the witness client refuses to consent to the lawyer's representation of the prospective client.
The opinion also does not discuss the lawyer's obligations if a conflict arises after a representation has been accepted. The court noted that in Cal West Nurseries Inc. v. Superior Court, 29 Cal. Rptr.3d 170, 21 Law. Man. Prof. Conduct 292 (Cal. Ct. App. 2005), an entire firm was disqualified after it served discovery on a current client, even though the firm withdrew as to that party and associated other counsel for that party.
Similarly, it noted, UMG Recordings Inc. v. MySpace, 526 F. Supp.2d 1046, 24 Law. Man. Prof. Conduct 9 (C.D. Cal. 2007), expressed doubt about the independence of a second firm that was brought in to serve discovery on a firm's former client.
“These cases suggest association of independent counsel to handle the document subpoena might not be permitted,” but they did not involve a subpoena to be served on a nonparty, the committee said.
The committee noted that ABA Formal Ethics Op. 92-367 (1992) suggested that under the Model Rules independent counsel may be retained to pursue the discovery when the conflict arises after the representation is underway.
Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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