In a previous blog post, see https://wp.me/p1wbl8-rf, I discussed new California Rule of Professional Conduct, Rule 3.7, which pertains to a lawyer as a witness and a lawyer in the same firm as an advocate in litigation. As of November 1, 2018, Rule 3.7 now also applies in non-jury, court trials, such as probate court proceedings.
Separate from Rule 3.7(a), the possible applicability of other Rules should also be considered in appropriate circumstances including, for example, Rules 1.7 (Conflicts of Interest: Current Clients), 1.9 (Duties to Former Clients), 1.10 (Imputation of Conflicts of Interest: General Rule), and 1.6 (Confidential Information of a Client).
Rule 3.7(b), for example, states “A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9.” Thus, in appropriate circumstances Rule 3.7(b) also can trigger, or possibly trigger, Rules 1.7 (Conflict of Interest: Current Clients) and 1.9 ((Duties to Former Clients). Further, while Rule 3.7(b) references Rule 1.7 and Rule 1.9, it does not reference Rule 1.10; but note, however, that Rule 1.10 (Imputation of Conflicts of Interest: General Rule) does reference Rule 1.7 and Rule 1.9. Thus, Rule 1.10 may apply to impute conflicts to lawyers that are associated in a firm, and may also apply when a lawyer has been terminated from a firm. Accordingly, in appropriate circumstances multiple attorneys at the same law firm might become prohibited from representing or limited in their representation of a client although only one of the firm’s attorneys might be directly prohibited or limited. On the other hand, there is a legal preference for allowing a client to select his or her own attorney , and various of the Rules allow a client to waive in writing conflicts or potential conflicts upon informed consent. In the context of an estate planning and administration practice, and depending on the factual situation at hand, you should be considering Rule 3.7, in addition to Rule 1.10, Rule 1.7, Rule 1.9 and Rule 1.6, and other possibly applicable Rules, including any other attorney or client (e.g., trustee and executor) responsibilities or duties that might also apply.
Why am I spending blog time on these topics? Because they are important, and they have become more important, for estate planning and administration attorneys and firms. For example, it is not necessarily uncommon for an estate planning and administration attorney and firm to represent husband and wife for estate planning and as the initial trustees, the surviving spouse as sole remaining trustee for administration after the death of the first spouse to die (possibly including court proceedings), a son or daughter as the successor trustee for post-parent administration (possibly including court proceedings), and various people as attorneys in fact pursuant to various powers of attorney, or possibly as conservator. And it is not uncommon for estate planning and trust and estate administration attorneys to have knowledge of underlying background facts that might be relevant in situations in which there are disputes or litigation.
Rules of Professional Conduct, Rule 1.7 (Conflict of Interest: Current Clients) states as follows:
(a) A lawyer shall not, without informed written consent from each client and compliance with paragraph (d), represent a client if the representation is directly adverse to another client in the same or a separate matter.
(b) A lawyer shall not, without informed written consent from each affected client and compliance with paragraph (d), represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person, or by the lawyer’s own interests.
(c) Even when a significant risk requiring a lawyer to comply with paragraph (b) is not present, a lawyer shall not represent a client without written disclosure of the relationship to the client and compliance with paragraph (d) where:
(1) the lawyer has, or knows that another lawyer in the lawyer’s firm has, a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same matter; or
(2) the lawyer knows or reasonably should know that another party’s lawyer is a spouse, parent, child, or sibling of the lawyer, lives with the lawyer, is a client of the lawyer or another lawyer in the lawyer’s firm, or has an intimate personal relationship with the lawyer.
(d) Representation is permitted under this rule only if the lawyer complies with paragraphs (a), (b), and (c), and:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law; and
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
(e) For purposes of this rule, “matter” includes any judicial or other proceeding, application, request for a ruling or other determination, contract, transaction, claim, controversy, investigation, charge, accusation, arrest, or other deliberation,
decision, or action that is focused on the interests of specific persons, or a discrete and identifiable class of persons.
Rules of Professional Conduct, Rule 1.9 (Duties to Former Clients) states as follows:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client
unless the former client gives informed written consent.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter;
unless the former client gives informed written consent.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 acquired by virtue of the representation of the former client to the disadvantage of the former client except as these rules or the State Bar Act would permit with respect to a current client, or when the information has become generally known; or
(2) reveal information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 acquired by virtue of the representation of the former client except as these rules or the State Bar Act permit with respect to a current client.
California Rule of Professional Conduct Rule 1.10 is new, and it may have ramifications in various situations. In part, Rule 1.10(a) provides that in certain circumstances if one attorney in a law firm is prohibited from representing a client under Rule 1.7 or Rule 1.9, other attorneys who are also associated in the same firm also might be prohibited from representing the client through imputed conflict of interest.
Rule of Professional Conduct, Rule 1.10 (Imputation of Conflicts of Interest) states as follows:
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by rules 1.7 or 1.9, unless
(1) the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or
(2) the prohibition is based upon rule 1.9(a) or (b) and arises out of the prohibited lawyer’s association with a prior firm, and
(i) the prohibited lawyer did not substantially participate in the same or a substantially related matter;
(ii) the prohibited lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(iii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this rule, which shall include a description of the screening procedures employed; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter.
(c) A prohibition under this rule may be waived by each affected client under the conditions stated in rule 1.7. (d) The imputation of a conflict of interest to lawyers associated in a firm with former or current government lawyers is governed by rule 1.11.
All of this having been said, each situation in which these Rules might apply must be evaluated on a case by case basis. The situations, potential situations, and situations that could develop can be or can become complicated. And other possibly applicable Rules, including any other attorney or client (e.g., trustee and executor) responsibilities or duties might also need to be considered. This post is already long and complicated enough – in subsequent posts we will be going in to greater detail about these Rules and how they might or might not apply in particular situations.
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Every case situation is different. You do need to consult with professionals about your particular situation. This post is not a solicitation for services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation.
Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only
Blogs: California trust, estate, and elder abuse litigation and contentious administrations http://californiaestatetrust.com; D&O, audit committee, governance and risk management http://auditcommitteeupdate.com