Following is the fifth in a series of posts by Parker Law Group reflecting on recent changes to the California Bar Association’s Rules of Professional Conduct (RPC), under the category of “Lawyer-Client Relationship,” focusing on “conflict of interest involving current clients” – related to avoiding the representation of adverse interests.
The Rule of Professional Conduct, as revised, is as follows:
Rule 1.7 Conflict of Interest: Current Clients
(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.
One minor difference between the old version of the CBA’s RPC (Rule 3-310(B)-(C) and the new version is that the term “member” has been changed to “lawyer.” Under the new RPC’s Rule 1.7, as set forth above, the restrictions placed on an attorney who represents more than one client are delineated, but slightly more consolidated. The number of paragraphs addressing various conflicts that could arise when a lawyer represents more than one client (whether in one matter or multiple matters) have been reduced.
As with other rules we’ve already posted about here, the corresponding rule in the American Bar Association (ABA)’s RPC (Rule 1.7) is far more streamlined than either version of the CBA’s RPC. However, the fact that the CBA’s new version of the RPC is about half as long as it used to be brings it a lot closer to the ABA’s rules. (By the way, the numbering of the CBA’s new rules now matches the numbering found in ABA’s RPC.)
Benefit: This is a significant set of rules. Generally speaking, the changes are intended to further stress and clarify potential conflicts and the obligations of counsel.
The information provided herein is informational only and should not be construed as legal advice or as an agreement for representation. This is not an advertisement. If you have an issue or dispute with your attorney, or are seeking advice with respect to your obligations, you should consult with an experienced attorney. Parker Law Group is a full-service litigation and transactional law firm. Mr. Parker has represented clients in professional malfeasance disputes for over 22 years. If you would like to schedule an initial consultation with Mr. Parker or his team, you can reach them at 916/996-0400 or at email@example.com. (An email to the law firm requesting a consultation does not create an attorney-client relationship or any agreement for representation by the firm.)