Current Rules
Rules of Professional Conduct
Rule
3-310 Avoiding the Representation of Adverse Interests
(A) For purposes of this rule:
(1) "Disclosure" means
informing the client or former client of the relevant circumstances and of the actual
and reasonably foreseeable adverse consequences to the client or former client;
(2) "Informed written
consent" means the client's or former client's written agreement to the
representation following written disclosure;
(3) "Written" means any
writing as defined in Evidence Code section 250.
(B) A member shall not accept or
continue representation of a client without providing written disclosure to the
client where:
(1) The member has a legal,
business, financial, professional, or personal relationship with a party or
witness in the same matter;
or
(2) The member knows or reasonably
should know that:
(a) the
member previously had a legal, business, financial, professional, or personal
relationship with a party or witness in the same matter; and
(b) the
previous relationship would substantially affect the member's
representation; or
(3) The member has or had a legal,
business, financial, professional, or personal relationship with another person
or entity the member knows or reasonably should know would be affected
substantially by resolution of the matter;
or
(4) The member has or had a legal,
business, financial, or professional interest in the subject matter of the
representation.
(C) A member shall not, without the
informed written consent of each client:
(1) Accept representation of more
than one client in a matter in which the interests of the clients potentially
conflict; or
(2) Accept or continue
representation of more than one client in a matter in which the interests of
the clients actually conflict; or
(3) Represent a client in a matter
and at the same time in a separate matter accept as a client a person or entity
whose interest in the first matter is adverse to the client in the first
matter.
(D) A member who represents two or
more clients shall not enter into an aggregate settlement of the claims of or
against the clients without the informed written consent of each client.
(E) A member shall not, without the
informed written consent of the client or former client, accept employment
adverse to the client or former client where, by reason of the representation
of the client or former client, the member has obtained confidential
information material to the employment.
(F) A member shall not accept
compensation for representing a client from one other than the client unless:
(1) There is no interference with
the member's independence of professional judgment or with the client-lawyer
relationship; and
(2) Information relating to
representation of the client is protected as required by Business and
Professions Code section 6068, subdivision (e); and
(3) The member obtains the client's
informed written consent, provided that no disclosure or consent is required
if:
(a) such
nondisclosure is otherwise authorized by law;
or
(b) the member
is rendering legal services on behalf of any public agency which provides legal
services to other public agencies or the public.
Discussion:
Rule 3-310 is not intended to
prohibit a member from representing parties having antagonistic positions on the
same legal question that has arisen in different cases, unless representation
of either client would be adversely affected.
Other rules and laws may preclude
making adequate disclosure under this rule. If such disclosure is precluded,
informed written consent is likewise precluded. (See, e.g.,
Business and Professions Code section 6068, subdivsion
(e).)
Paragraph (B) is not intended to
apply to the relationship of a member to another party's lawyer. Such
relationships are governed by rule 3-320.
Paragraph (B) is not intended to
require either the disclosure of the new engagement to a former client or the
consent of the former client to the new engagement. However, both disclosure
and consent are required if paragraph (E) applies.
While paragraph (B) deals with the
issues of adequate disclosure to the present client or clients of the member's
present or past relationships to other parties or witnesses or present interest
in the subject matter of the representation, paragraph (E) is intended to
protect the confidences of another present or former client. These two
paragraphs are to apply as complementary provisions.
Paragraph (B) is intended to apply
only to a member's own relationships or interests, unless the member knows that
a partner or associate in the same firm as the member has or had a relationship
with another party or witness or has or had an interest in the subject matter
of the representation.
Subparagraphs (C)(1)
and (C)(2) are intended to apply to all types of legal employment, including
the concurrent representation of multiple parties in litigation or in a single
transaction or in some other common enterprise or legal relationship. Examples
of the latter include the formation of a partnership for several partners or a
corporation for several shareholders, the preparation of an ante-nuptial
agreement, or joint or reciprocal wills for a husband and wife, or the
resolution of an "uncontested" marital dissolution. In such
situations, for the sake of convenience or economy, the parties may well prefer
to employ a single counsel, but a member must disclose the potential adverse
aspects of such multiple representation (e.g., Evid. Code, §962) and must obtain the informed written
consent of the clients thereto pursuant to subparagraph (C)(1).
Moreover, if the potential adversity should become actual, the member must
obtain the further informed written consent of the clients pursuant to
subparagraph (C)(2).
Subparagraph (C)(3)
is intended to apply to representations of clients in both litigation and
transactional matters.
In State Farm Mutual Automobile
Insurance Company v. Federal Insurance Company (1999) 72 Cal.App.
4th 1422 [86 Cal.Rptr.2d 20], the court held that subparagraph (C)(3) was
violated when a member, retained by an insurer to defend one suit, and while
that suit was still pending, filed a direct action against the same insurer in
an unrelated action without securing the insurer's consent. Notwithstanding
State Farm, subparagraph (C)(3) is not intended to
apply with respect to the relationship between an insurer and a member when, in
each matter, the insurer's interest is only as an indemnity provider and not as
a direct party to the action.
There are some matters in which the
conflicts are such that written consent may not suffice for non-disciplinary
purposes. (See Woods v. Superior Court (1983) 149 Cal.App.3d 931 [197 Cal.Rptr. 185]; Klemm
v. Superior Court (1977) 75 Cal.App.3d 893 [142 Cal.Rptr.
509]; Ishmael v. Millington
(1966) 241 Cal.App.2d 520 [50 Cal.Rptr. 592].)
Paragraph (D) is not intended to
apply to class action settlements subject to court approval.
Paragraph (F) is not intended to
abrogate existing relationships between insurers and insureds
whereby the insurer has the contractual right to unilaterally select counsel
for the insured, where there is no conflict of interest. (See
San Diego Navy Federal Credit Union v. Cumis
Insurance Society (1984) 162 Cal.App.3d 358 [208 Cal.Rptr.
494].) (Amended by order of Supreme Court; operative September 14, 1992; operative March 3, 2003.)