skip navigation
search

End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


California Legal Ethics

1.10   Rule 1.10 Imputed Disqualification: General Rule

1.10:100   Comparative Analysis of CA Rule

Primary California References: CRPC 3-310, 1-100, 3-320
Background References: ABA Model Rule 1.10, Other Jurisdictions
Commentary:

1.10:101      Model Rule Comparison

The ABA codes and the case law in every state are premised on the assumption that lawyers in the same firm will confer on their cases and exchange confidences. One inevitable consequence is “imputed disqualification”: If one lawyer in a “law firm” is personally disqualified from handling a matter, the conflict is imputed to all members of the firm. MR 1.10 states this general rule and applies it to the situation in which the lawyer handling the case has left the firm [MR 1.10(b)]. Imputed conflicts under MR 1.10 generally may be cured by client consent. But not all conflicts of interest are imputed to other lawyers in the same firm. Conflicts under other rules sometimes are imputed [i.e., MR 1.7, 1.8(c), 1.9 and 2.2] and sometimes are not [e.g., conflicts under MR 1.8 other than those under paragraph (c)]. Thus, a disqualifying business interest of a lawyer under MR 1.8(a) or a spousal or family conflict under MR 1.8(i) is not imputed to other lawyers in a firm, but a lawyer’s partner cannot draft an instrument containing a substantial gift to the lawyer [MR 1.8(c)] unless the affected client waives the disqualification of the lawyer’s partner under the conditions stated in MR 1.7. The lawyer-witness rule [MR 3.7] does not prevent the firm from handling the representation, unless MRs 1.7 or 1.9 would be violated.

The CRPC contains no provision dealing with imputed disqualification. A deliberate decision was made to leave the matter to the developing case law. California decisions generally are consistent with MR 1.10, but in the absence of a rule, imputed disqualification in California will be decided on a case-by-case basis. See Rosenfeld Constr. Co. v. Superior Court (5th Dist. 1991) 235 Cal.App.3d 566, 286 Cal.Rptr. 609 (lawyer formerly representing the opposing party moved to a firm representing the adversary; firm was disqualified even though it put screening promptly into effect).

Where a lawyer is personally disqualified under CRPC 3-310 from representing a client, the case law in California currently provides that any firm with which the lawyer is associated would likewise be disqualified. However, in a case currently pending before the California Supreme Court, People v. Speedee Oil Change Systems, Inc., (1997) Case No. S058631, one of the questions is whether this rule should be modified to permit appropriate screening to avoid such automatic disqualification.

1.10:102      Model Code Comparison

DR 5-105(D) provided that “[i]f a lawyer is required to decline or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment.”

1.10.103      Definition of "Firm"

CRPC 1-100(B)(1) contains a definition of “Law Firm.” However, the term “Member” (defined in CRPC 1-100(B)(2)) is the defined term used in the conflict of interest provisions of CRPC 3-310 and CRPC 3-320. The published cases dealing with conflicts of interest have not cited the definition of “law firm” in CRPC 1-100 in applying the imputed disqualification rules. One unpublished case, citing CRPC 1-100(B)(1)(d), has held that a public defender’s office should be treated the same as a private law firm for purposes of conflicts of interest and that separate divisions within the same public defender’s office must be treated as part of the same “firm.” People v. Pinkins (5th Dist. 1990) 272 Cal.Rptr. 100 (not officially published). The Pinkins opinion contains a detailed discussion of the issue as it relates to public defender’s offices. See also (1976) 59 Ops.Cal.Atty.Gen. 27.

A public defender’s office and an alternate public defender’s office are separate “firms” for purposes of conflicts analysis. People v. Christian (1st Dist. 1996) 41 Cal.App.4th 986, 1000, 48 Cal.Rptr.2d 867, 875-876.

When a lawyer moved from a law firm which represented numerous criminal defendants to become a top ranking officer in county district attorney’s office, it was proper for the entire district attorney’s office (not just the individual attorney) to be recused from prosecuting any cases involving clients of the lawyer’s former firm; in his new position the lawyer would have significant supervisorial functions with regard to other prosecutors. Younger v. Superior Court (2nd Dist. 1978) 77 Cal.App.3d 892, 144 Cal.Rptr. 34. However, for less highly placed lawyers in the district attorney’s office, one court was stated that vicarious disqualification rules applicable to private law firms were not applicable to a very large district attorney’s office, such as that in Los Angeles which had seven branch offices, 17 area offices, and 400 deputy district attorneys. In the Matter of Charles Willie L. (2nd Dist. 1976) 63 Cal.App.3d 760, 132 Cal.Rptr. 840).

Lawyers who are “of counsel” to a law firm may or may not be deemed part of the firm for purposes of applying conflict rules. The designation “of counsel” encompasses a myriad of different factual situations. In People v. Speedee Oil Change Systems, Inc. (1997) S058631 the “of counsel” shared office space and a receptionist with the “firm” and worked on occasional matters with the “firm.” However, the “of counsel” paid his staff separately from the firm and billed his clients separately from the firm. The court concluded that, on these facts, the “of counsel” was not part of the firm. However, in In Re Mortgage & Realty Trust (Bankr. C.D. Cal. 1996) 195 B.R. 740, 755-756, another court concluded that an attorney who was designated “of counsel” must be treated as part of a law firm because CRPC 1-400 makes it a presumptive violation of the rule to designate a lawyer as “of counsel” unless the attorney has a relationship with the firm that is “close, personal, continuous, and regular.”

Where two lawyers hold themselves out to the public as a “professional association,” using common letterhead and offices, they constitute a single law firm for conflicts purposes. Soto v. State (2nd Dist. 1997) 56 Cal.App.4th 196, 65 Cal.Rptr.2d 11 (not officially published)

The sharing of office space and staff by separate attorneys has been recently addressed in C.O.P.R.A.C. Op. 1997-150. That opinion discusses the ethical issues arising when attorneys enter into arrangements to share office space or services, such as reception and library facilities, maintenance staff, secretarial staff or paralegal staff, without forming a law firm. It assumed that the attorneys names are listed separately in the building directory, that each has his or her own stationary, business cards, retainer agreements and bank accounts and that each attorney only works on matters for his or her own clients. The opinion discusses two major areas: (1) communications by attorneys to the public and (2) protection of client confidential information. In footnote 4 the opinion specifically states that it does not address conflict of interest issues under CRPC 3-310, indicating that conflict of interest rules might apply to a shared office or staff situation depending on the facts.

1.10:200   Imputed Disqualification Among Current Affiliated Lawyers

Primary California References: CRPC 3-310
Background References: ABA Model Rule 1.10(a), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 203, Wolfram § 7.6

Conflicts of an "of counsel" attorney may be imputed to the law firm for which the attorney is of counsel. People v. Speedee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 86 Cal.Rptr.2d 816.

The principles behind the rule on imputed disqualification have also been applied in situations where opposing counsel have commenced discussions for merging their legal practices. In Stanley v. Richmond (1st Dist. 1995) 35 Cal.App.4th 1070, 41 Cal.Rptr.2d 768 defendant attorney Richmond was sued by former client Stanley for a breach of fiduciary duty. One of the allegations was that Richmond, while representing Stanley in a marriage dissolution, had failed to properly disclose to Stanley that Richmond had entered into negotiations with opposing counsel to merge their law practices. The court held that, on the factual allegations, there was a conflict of interest requiring the written consent of Stanley.

Although an individual lawyer was disqualified for having improper communications with an opposing party, the disqualification did not extend to the offending lawyer’s law firm. The disqualification rules for improper communications with opposing parties were not the same as for disqualification because of a conflict of interest. Chronometrics, Inc. v. Sysgen, Inc. (2nd Dist. 1980) 110 Cal.App.3d 597, 168 Cal.Rptr. 196; Mills Land and Water Company v. Golden West Refining Company (4th Dist. 1986) 186 Cal.App.3d 116, 230 Cal.Rptr. 461.

Where a senior partner in law firm was disqualified from representing the plaintiff against a corporation as to which he owed a fiduciary obligation, the entire law firm must be disqualified. William H. Raley Co., Inc. v. Superior Court (4th Dist. 1983) 149 Cal.App.3d 1042, 197 Cal.Rptr. 232. The institution of screening procedures would not cure the situation.

Although normally a new lawyer to whom a matter is referred when the original lawyer discovers a conflict is not disqualified on the basis of the original counsel’s conflict, that is not the case where there is a substantial likelihood that the second lawyer will receive confidential information regarding the client from the original lawyer or where the second lawyer participates in a breach of ethical duty by the original lawyer. In such a case, the second lawyer can be disqualified as well. In re California Canners and Growers (Bkrtcy.N.D.Cal. 1987) 74 B.R. 336.

Sharing by lawyers of investigative services, office space and support staff did not indicate insufficient independence from one another. Accordingly, the lawyers were treated as independent practitioners under CRPC 3-310(C) when representing co-defendants in a criminal trial. People v. Pastrano (4th Dist. 1997) 52 Cal.App.4th 610, 60 Cal.Rptr.2d 620.

Where an individual lawyer was disqualified from representing an client against a real estate investment trust on whose board of directors the individual lawyer had previously served as a director, the disqualification extended to the lawyer’s entire multi-state law firm. In Re Mortgage & Realty Trust (Bankr. C.D. Cal. 1996) 195 B.R. 740. Building an “ethical wall” would not cure the conflict.

1.10:300   Removing Imputation by Screening

Primary California References:
Background References: ABA Model Rule 1.10, Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 204, Wolfram § 7.6

A few states permit screening as a cure to imputed disqualification of a law firm that otherwise may result when a personally disqualified lawyer joins a firm representing a party opposing the party the lawyer formerly represented. The ALAS table reproduced at p. 141 of the Morgan & Rotunda 1995 standards supplement, reports that 43 of 51 jurisdictions “do not recognize screening of a tainted lawyer as a cure for imputed disqualification.” As the ALAS table states, California has no ethics rule on this subject. Klein v. Superior Court (6th Dist. 1988) 198 Cal.App.3d 894, 244 Cal.Rptr. 226 (entire law firm disqualified by imputation when one member is disqualified for a conflict of interest) provides a comprehensive but somewhat confusing discussion of California decisions. The case suggests that a California court might approve screening provided the migratory lawyer had not actually worked on the affected client’s matter while at the previous firm. A later case, Henriksen v. Great American Savings & Loan (1st Dist. 1992) 11 Cal.App.4th 109, 14 Cal.Rptr.2d 184, held that screening will not save the entire second firm from disqualification if the moving lawyer brings any confidential information about the case. That is the same position as is stated in MRs 1.9(b) and 1.10(a). See also Rosenfeld Construction Company, Inc. v. Superior Court (5th Dist. 1991) 235 Cal.App.3d 566, 577, 286 Cal.Rptr. 609, 615; In re Jaeger (Bankr. CD Calif. August 26, 1997), No. LA 95-29915 SB, 1997 WL 566776. See 1.10:200 and 1.12:400. The California Supreme Court left the door open for screening in dictum in People v. Speedee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 86 Cal.Rptr.2d 816.

The use of internal screening procedures or “ethical walls” to avoid conflicts between a public defender’s office and an alternate defender’s office was effective to avoid conflicts of interest between such offices. People v. Christian (1st Dist. 1996) 41 Cal.App.4th 986, 998, 48 Cal.Rptr.2d 867, 875.

1.10:400   Disqualification of Firm After Disqualified Lawyer Departs

Primary California References:
Background References: ABA Model Rule 1.10(b), Other Jurisdictions
Commentary: ABA/BNA § 51:2008, ALI-LGL § 204, Wolfram § 7.6.3

The fact that an associate in a law firm several years previously had prepared certain real estate documents with regard to a real estate project was not substantially related to a subsequent lawsuit in which the law firm was representing an opposing party to the real estate developer. In addition, the associate in the law firm had left the firm and taken the file with her before the present lawsuit was commenced. Kirk Corporation v. First American Title Company (3rd Dist. 1990) 220 Cal.App.3d 785, 270 Cal.Rptr. 24 (former CRPC 4-101 (1975)).

[See also 1.9:200 Representation Contrary to Interest of Former Client, infra for discussion of Elan Transdermal Ltd. v. Cygnus Therapeutic Systems (N.D. Cal. 1992) 809 F.Supp. 1383 (patent infringement action) in 1.9:200 Representation Contrary to Interest of Four Client-I-General].

1.10:500   Client Consent

Primary California References:
Background References: ABA Model Rule 1.10(c), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 202, Wolfram §§ 7.2, 7.3

If informed client consent is sufficient to waive a conflict with respect to the individually disqualified lawyer, a fortiori informed client consent should be sufficient to waive an imputed disqualification of the entire firm.