Ethics Opinon 1975-1

February 4, 1975

SUBJECT: CONFLICT OF INTEREST

I
QUESTION PRESENTED

An attorney, who formerly was employed as an attorney employee of a law firm, said law firm being attorney of record for the wife in a dissolution proceeding still pending, has now accepted employment by husband to represent him in the same proceeding. The attorney while formerly employed by the law firm representing the wife, advised the wife. May the attorney ethically represent the husband?

II
SUMMARY

No. Unless the consent of the wife is given in such a case, the attorney may not now represent the husband.

III
STATUTES AND CANONS

The relationship (attorney and client) also arises between the client and the attorney's partner or employee. Witkin, California Procedure, 2nd edition, Attorneys § 25, page 34.

The relationship between attorney and client is a fiduciary relationship of the very highest character, and binds the attorney in the most conscientious fidelity. Cox v. Delmas (1893) 99 Cal. 104; 33 P. 836; Radar v. Thrasher (1962) 57 Cal.2d 244, 3688 P.2d 360.

Among the important incidents of the fiduciary relationship are the following:

"An attorney must respect his client's confidence." Business & Professions Code section 6068(e).

"An attorney, like a trustee, has a duty of loyalty to his client and his client's cause." Witkin, California Procedure, 2nd edition: Attorneys § 47, page 55, 56.

The fiduciary relationship of an attorney to his client does not wholly end with the termination of the relationship. Two important incidents remain

(a) The client's secrets and confidences must still be maintained, and information acquired by virtue of the former employment cannot be used against the client at any time in the future.

(b) Independently of secrets of information the attorney could not accept employment or otherwise act adversely to his former client in a matter of controversy in which he formerly represented the client. It makes no difference how the relationship terminated. Witkin, California Procedure, 2nd edition: Attorneys § 64, page 72.

The Rules of Professional Conduct (1970) state in part as follows:

Rule 5: A member of the State Bar shall not accept employment adverse to a client or former client, without the consent of the client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client.

IV
FORMAL OPINIONS AND INFORMAL OPINIONS

It appears that there are no formal or informal opinion which deal directly with this matter.

V
ANALYSIS

It seems clear that the relationship of attorney and client arises not only with the attorney directly handling the case, but also with the partner of the attorney or the employer (Witkin, Cal. Procedure). Moreover, in addition to the technical relationship being created, the attorney now representing the husband actually advised the wife prior thereto.

It is the written opinion that the attorney may not ethically represent the husband in the same proceeding, unless the wife consents to such representation.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

EDITOR'S NOTE: State Bar Rule 5 is now Rule 4-101 and requires that consent be both informed and written.


 

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.