Cal. State Bar Formal Opn. No. 2011-182 — Directly Adverse with Another Client

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2011-182
1
ISSUES: 1. When at the outset of representation it appears an attorney would need to serve a
discovery subpoena for production of documents on another current client of the
attorney or the attorney’s law firm, may the attorney accept the representation of
the new client and serve the discovery subpoena on the current client?
2. If doing so raises a conflict of interest, may the attorney seek informed written
consent in order to accept the representation including possible service of the
subpoena?
3. What obligations arise if an attorney seeks informed written consent?
DIGEST: When an attorney discovers at the outset of representation that the attorney must serve a
discovery subpoena for production of documents on another current client of the attorney
or the attorney’s law firm, serving the discovery subpoena is an adverse action such that a
concurrent client conflict of interest arises. To represent a client who seeks to serve such
a subpoena, the attorney must seek informed written consent from each client, disclosing
the relevant circumstances and the actual and reasonably foreseeable adverse
consequences to the client providing consent.
AUTHORITIES
INTERPRETED: Rules 3-100 and 3-310 of the Rules of Professional Conduct of the State Bar of
California1/
Business and Professions Code section 6068, subdivision (e)
STATEMENT OF FACTS
Prospective Client requests Attorney to represent Prospective Client in litigation. Before agreeing to represent
Prospective Client, Attorney runs a conflict check listing the adverse parties and all potential witnesses identified by
Prospective Client and Attorney. The conflict check reveals that Witness Client, a potential witness who has
documents critical to the litigation, is represented by Partner, another attorney at Attorney’s law firm in an unrelated
matter.
Is it a conflict of interest for Attorney to accept the representation of Prospective Client and serve a discovery
subpoena for documents (“document subpoena”) on Witness Client? If it is a conflict of interest, may Attorney do
so with informed written consent of Prospective Client and Witness Client? What obligations arise if an attorney
seeks informed written consent to such a representation?2/
1/ Unless otherwise indicated, all rule references are to the Rules of Professional Conduct of the State Bar of
California.
2/ This opinion does not address whether Attorney may ethically do anything other than decline the representation
should Witness Client refuse to consent to the representation of Prospective Client. Further, this opinion does not
address Attorney’s obligation should a conflict arise after representation has been accepted. In Cal West Nurseries,
Inc. v. Superior Court (2005) 129 Cal.App.4th 1170 [29 Cal.Rptr.3d 170], the court disqualified an entire law firm
which had served discovery on a current client, to which the firm was adverse in ongoing litigation, even though the
firm withdrew as to that party and associated other counsel for that party. Similarly, UMG Recordings, Inc. v.
MySpace (C.D. Cal. 2007) 526 F.Supp.2d 1046 (applying California law), expressed reservations about the
independence of a second firm associated in by a law firm to serve discovery on a party previously represented by

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DISCUSSION
1. Conducting Third Party Discovery of a Current Client is Adverse
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This opinion addresses the issue of whether an attorney may accept representation of a new client when at the outset
of the representation it appears the attorney would need to serve a discovery subpoena for documents on another
existing client of the attorney’s law firm. The first question is whether serving a document subpoena on a
witness/client is “adverse” to the interests of that client. California law has not expressly defined “adverse” for
purposes of analysis of conflicts between an attorney’s clients. Neither rule 3-310 nor California case law supply an
explicit definition in that context. In Flatt v. Superior Court (1994) 9 Cal.4th 275 [36 Cal.Rptr.2d 537], the
California Supreme Court held that it would be a breach of the duty of loyalty for an attorney to represent or provide
advice to a client or person that is adverse to the interests of an existing client on any matter, whether related or
unrelated. It is a violation of the duty of loyalty for an attorney to put himself in a position where he may have to
choose between conflicting duties, or be led to attempt to reconcile conflicting interests, rather than to enforce to
their full extent the rights of the interest which he should alone represent. Flatt, supra, 9 Cal.4th at p. 289, citing
Anderson v. Eaton (1930) 211 Cal. 113, 116 [293 P. 788]; People ex rel. Dept. of Corporations v. SpeeDee Oil
Change Systems, Inc. (1999) 20 Cal.4th 1135, 1146-47 [86 Cal.Rptr.2d 816]; see Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 821 [124 Cal.Rptr.3d 256]. “‘By virtue of this rule an attorney is precluded from
assuming any relation which would prevent him from devoting his entire energies to his client’s interests.’” Flatt,
supra, quoting Anderson, supra (emphasis added by court in Flatt). In such circumstances, “the rule of
disqualification . . . is a per se or ‘automatic’ one.” Flatt, supra, 9 Cal.4th at p. 284 (emphasis in original);
Anderson, supra, 211 Cal. at p. 116. The purpose of this rule is to maintain the level of confidence and trust in
counsel that is one of the foundations of the professional relationship. Flatt, supra, 9 Cal.4th at p. 285.
While Flatt arose out of one client potentially suing another client, or party adversity, other cases have applied the
proscription against adverse representation in situations where the existing client is a third-party witness rather than
an adverse party. For instance, in Hernandez v. Paicius (2003) 109 Cal.App.4th 452 [134 Cal.Rptr.2d 756],
disapproved on other grounds, People v. Freeman (2010) 47 Cal.4th 993 [103 Cal.Rptr.3d 723], an attorney cross-
examined her own current client during a trial in which he was an expert witness for the opposing party. The court
stated the attorney’s “representation . . . required her to create a record impeaching her other client's professional
reputation and credibility. In pursuing her ends in this case, counsel demonstrated a dulled sensitivity to
professional ethics and engaged in an egregious and shocking breach of her duty of loyalty to” the current client
whom she cross-examined. Hernandez, supra, at p. 466. Adversity arises where the client is a potential third-party
witness.
The California Supreme Court, in Ames v. State Bar (1973) 8 Cal.3d 910 [106 Cal.Rptr. 489], cited a definition of
“adverse” drawn from a dictionary, albeit in connection with the construction of the predecessor of rule 3-300
prohibiting a lawyer from acquiring an interest “adverse” to a client. The Supreme Court relied upon the dictionary
definition of “adverse” as entailing “acting against or in a contrary direction…g hostile, opposed, antagonistic,” “in
opposition to one’s interests: detrimental, unfavorable,” “having opposing interests: having interests for preservation of
which opposition is essential.” Ames, supra, 8 Cal.3d at p. 917 (internal quotation marks omitted). The Ames Court
made clear that an interest acquired by a lawyer may be “adverse” to a client even if its acquisition does not actually
cause the client “injury,” so long as “injury” is “one of the foreseeable though not inevitable consequences.” (Ames,
supra, 8 Cal.3d at pp. 919-20.) Indeed, the Ames Court implied that, broadly speaking, “adverse” means “unfavorable”
in the sense of something that generally could cause injury even if in any particular case it does not do so.
the first law firm. These cases suggest association of independent counsel to handle the document subpoena might
not be permitted, but they did not involve the situation addressed in this opinion where the document subpoena
would be served on a nonparty to the litigation. But see ABA Formal Opn. No. 92-367 suggesting, under the ABA
Model Rules, independent counsel may be retained to pursue the discovery when the conflict arises after the
representation is underway. The ABA Model Rules are not binding in California but may be used for guidance by
lawyers where there is no direct California authority and the ABA Model Rules do no conflict with California
policy. See State Compensation Insurance Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 655-656 [82 Cal.Rptr.2d
799].

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Defining “adverse” as “potential injury” in the sense of at least threatening injury is also consistent with other
authority that addresses the term in a conflicts context. See American Airlines, Inc. v. Sheppard, Mullin, Richter &
Hampton (2002) 96 Cal.App.4th 1017, 1043 [117 Cal.Rptr.2d 685] (holding that the interest of one of a lawyer’s
clients is “adverse” to another if it causes the lawyer to “put himself in the position” of choosing a course of action
that might be injurious to one of the clients). California State Bar Formal Opn. No. 1993-133 states that rule 3-310
“is designed to prevent lawyers from putting themselves in a position where they may be required to choose between
conflicting duties or have to attempt to reconcile conflicting interests rather than to enforce to the fullest extent the
right of the client they should alone represent.” (Italics added.) Thus, “adverse” requires that the attorney has
placed himself in a position of potential injury to the client. See, e.g., People v. Rhodes (1974) 12 Cal.3d 180, 184
[115 Cal.Rptr. 235] (city attorney with prosecutorial authority may not represent criminal defendant because of the
inevitable “struggle” the lawyer would face between the specific duty to the client and the broader interests of the
prosecutorial function); Anderson v. Eaton, supra, 211 Cal. at p. 117 (“Conscience and good morals dictate that an
attorney should not so conduct himself as to be open to the temptation of violating his obligation of fidelity and
confidence.”); Goldstein v. Lees (1975) 46 Cal.App.3d 614, 620 [120 Cal.Rptr. 253] (discussing difficulty of
attorney providing client with undivided loyalty while seeking to avoid revelation of confidences of a different
former client).
Having defined “adverse” as “potential injury,” we are led to the conclusion that serving any type of third-party
discovery on a current client is adverse and would violate an attorney’s duty of loyalty. First, as noted in O'Mary v.
Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 577 [69 Cal.Rptr.2d 389], “discovery is coercion”
since it entails bringing “[t]he force of law…upon a person to turn over certain documents.” (Emphasis in original.)
Second, propounding discovery on an existing client may affect the quality of an attorney’s services to the client
seeking the discovery, resulting in a diminution in the vigor of the attorney’s discovery demands or enforcement
effort. In addition, it is possible the documents sought could expose the client from whom discovery is being sought
to claims from the client serving the discovery. Therefore, we conclude that Attorney’s service of a document
subpoena on Witness Client would be an action adverse to Witness Client's interests, and as a result such service
would be prohibited absent proper consent.
2. Availability of Informed Written Consent from Each Client
3
Assuming Prospective Client wants to retain Attorney despite the firm’s concurrent representation of Witness Client,
the question arises whether Attorney may accept the representation and proceed with serving a document subpoena
on Witness Client. We conclude that Attorney may do so, as long as Attorney believes that Attorney can properly
fulfill his professional duties3/ and obtains informed written consent from each client before accepting the
representation of Prospective Client. The rules allow representation adverse to a current client with the client’s
informed written consent where the attorney has obtained confidential information material to the employment. See
rule 3-310(E).4/ Since an attorney may represent one current client adverse to another current client with informed
written consent when the attorney possesses material confidential information of the consenting client, it follows
that such consent may be allowed in some but not all cases where the duty of loyalty is the duty that is implicated.5/
This conclusion is further supported by rule 3-310(C)(1)-(3), which allow informed written consent in connection
with other sorts of concurrent client conflicts.
Case law also confirms that a conflict of interest may generally be waived by the persons who are personally
interested in the matter. See Flatt, supra, 9 Cal.4th at p. 286 fn. 4 (“The principle of loyalty is for the client's benefit;
most courts thus permit an attorney to continue the simultaneous representation of clients whose interests are
3/ See, e.g., rules 3-110 and 3-310.
4/ Rule 3-310(E) is not applicable here because under these facts Partner and the law firm received no confidential
information from Witness Client that is material to the representation of Prospective Client.
5/ Some conflicts arising out of a concurrent representation cannot be cured with informed client consent. See
Flatt, supra, 9 Cal.4th at 284 fn. 3 (“The paradigmatic instance of such prohibited dual representation…occurs
where the attorney represents clients whose interests are directly adverse in the same litigation.”); Klemm v.
Superior Court (1977) 75 Cal.App.3d 893, 898 [142 Cal.Rptr. 509] (“…consent to dual representation of litigants
with adverse interests at a contested hearing would be neither intelligent nor informed.”).

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adverse as to unrelated matters provided full disclosure is made and both agree in writing to waive the conflict.”
(first emphasis in original, second emphasis added)); Anderson, supra, 211 Cal. at p. 116 (“It is also an attorney’s
duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse
or antagonistic to his client without the latter’s free and intelligent consent given after full knowledge of all the facts
and circumstances.” (emphasis added)); In re Marriage of Friedman (2002) 100 Cal.App.4th 65, 70-71 [122
Cal.Rptr.2d 412]. Thus, in many circumstances interested persons may consent to representation even though an
attorney has a conflict of interest.
3. Disclosure to Each Client
4
To obtain informed written consent, Attorney must disclose to each client the relevant facts and circumstances and
the reasonably foreseeable adverse consequences of waiving any conflicts arising out of Attorney’s representation of
Prospective Client and service of a document subpoena on Witness Client. Rule 3-310(A)(1).6/ “California law
does not require that every possible consequence of a conflict be disclosed for a consent to be valid.” Zador Corp.
v. Kwan (1995) 31 Cal.App.4th 1285, 1301 [37 Cal.Rptr.2d 754]. A conflict waiver may be valid even though it
does not undertake “the impossible burden of explaining separately every conceivable ramification." Maxwell v.
Superior Court (1982) 30 Cal.3d 606, 622 [180 Cal.Rptr. 177].
Initially, Attorney must determine whether his duties to Witness Client preclude him from disclosing information to
Prospective Client necessary to obtain informed written consent. Specifically, Attorney cannot disclose any
confidential information obtained in the representation of Witness Client without Witness Client’s informed consent.
See Business and Professions Code section 6068(e)(1) and rule 3-100(A). In most situations, the identity of a client
is not considered confidential and in such circumstances Attorney may disclose the fact of the representation to
Prospective Client without Witness Client’s consent. Los Angeles County Bar Association Formal Opn. Nos. 456,
374.7/
In preparing the disclosure to Prospective Client, Attorney must identify the relevant facts and circumstances (i.e.,
the fact that the firm represents Witness Client in an unrelated matter). Necessary disclosure includes explaining the
nature of the conflict of interest, the purpose of the disclosure, the legal and other benefits and detriments resulting
from consenting to representation despite the conflict, and any other facts that could have an important bearing on
the client’s decision. See Los Angeles County Bar Association Formal Opn. No. 456. In the circumstances
addressed here, Attorney may need to make further disclosures to Prospective Client, such as the nature and extent
of Partner's relationship with Witness Client. Depending on the facts and circumstances, Attorney may need to make
additional disclosures to provide appropriate information on which Prospective Client can base a decision.
Attorney must also disclose to Prospective Client the reasonably foreseeable adverse consequences of the firm’s
ongoing relationship with Witness Client, such as issues that might arise if discovery is opposed. In this regard, the
primary adverse consequence is that, because serving third-party discovery on a current client would violate the duty
of loyalty of Attorney's firm to that client,8/ Attorney cannot serve Witness Client with the proposed discovery
6/ Upon learning that Partner represents Witness Client, if Attorney still wishes to seek to represent Prospective
Client, Attorney has an independent duty to disclose Partner’s representation of Witness Client to Prospective
Client. Rule 3-310(B)(1) and the Discussion to the rule require Attorney to disclose in writing to Prospective Client
that Partner has a legal, business, financial, professional, or personal relationship with a witness in the same matter.
However, in the circumstances considered here, such disclosure will of necessity occur when Attorney seeks
informed written consent from Prospective Client.
7/ In certain limited circumstances, a client’s identity would be confidential and could not be disclosed without the
client’s consent. See Rosso, Johnson, Rosso & Ebersold v. Superior Court (1987) 191 Cal.App.3d 1514, 1518-
1519 [237 Cal.Rptr. 242] (client’s name is privileged if disclosure would betray confidential communication); Baird
v. Koerner (9th Cir. 1990) 279 F.2d 623, 632 (client’s identity is confidential if revealing it would constitute the
“last link” in chain of evidence likely to lead to the client’s conviction).
8/ In Flatt, supra, the court imputed an attorney’s duty of loyalty to the attorney’s law firm. See also Streit v.
Covington & Crowe (2000) 82 Cal.App.4th 441, 445 [98 Cal.Rptr.2d 193] (in discussing attorney's duty of care,
court stated when a client retains a single attorney, the client retains all attorneys who are partners or employees of
that attorney).

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absent informed written consent from Witness Client, which will require disclosure to Witness Client of the relevant
facts and circumstances involved in Prospective Client’s litigation. Other reasonably foreseeable adverse
consequences include the risk that, because of the firm’s ongoing relationship with Witness Client, the duty of
loyalty to Prospective Client may conflict with the duty of loyalty to Witness Client, and Prospective Client may be
concerned that, because of the ongoing relationship with Witness Client, Attorney could be hesitant to seek
documents that Witness Client might consider confidential or sensitive. In addition, Attorney should disclose to
Prospective Client the risk that Witness Client will contest the subpoena, and without the consent of Witness Client,
Attorney will not be able to pursue enforcement of the subpoena against Witness Client.
In preparing the disclosure to Witness Client, similar considerations concerning client identity, confidential
information of Prospective Client, and potential favoritism toward Prospective Client may apply. Specifically, in
this circumstance Prospective Client’s consent may be required for Attorney to disclose to Witness Client the
relevant facts and circumstances involved in Prospective Client’s litigation. Attorney also may be required to
disclose to Witness Client that the subpoena served on behalf of Prospective Client may request documents that
Witness Client might consider confidential or sensitive. In addition, Attorney should disclose to Witness Client the
risk that Attorney might be required to pursue enforcement of the subpoena against Witness Client and should seek
consent to do so.
4. Attorneys Should Check for Conflicts before Accepting Representation of a Client in any Matter
5
The California Rules of Professional Conduct prohibit attorneys from accepting or continuing representation of a
client without providing written disclosure of certain types of conflicts to a client. Rules 3-310(B), (C) and (E).
Unlike the ABA Model Rules of Professional Conduct,9/ the California Rules of Professional Conduct do not
address conflict checks by attorneys as part of client representation. The Committee believes that, absent exigent
circumstances which require immediate action by the attorney on behalf of the client or the applicability of
rule 1-650,10/ the attorney should check for any potential conflicts with those who are adverse and potentially
adverse, including reasonably foreseeable parties and witnesses, before accepting representation of a client. See
rule 3-310(A)(1). If exigent circumstances prevent performing a conflict check, the attorney should accept
representation contingent upon a subsequent conflict check revealing no conflicts, run a conflict check as soon as it
is possible to do so and inform the attorney’s new client that if such a conflict arises, the attorney may be required to
withdraw unless appropriate informed written consent is obtained.11/ In such a circumstance, the attorney must
realize that accepting representation, however exigent the circumstances may be, remains subject to the
requirements of the Rules of Professional Conduct, the State Bar Act, and applicable case law. The attorney should
also refresh conflict checks upon the appearance of new parties and witnesses during the pendency of a
representation.12/
CONCLUSION
Without informed written consent, an attorney may not serve third-party discovery on a current client of the attorney
or the attorney’s law firm, because doing so is adverse to the interests of the client. To accept the representation, an
9/ ABA Model Rule 1.7, Comment [3] states in part: “To determine whether a conflict of interest exists, a lawyer
should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both
litigation and non-litigation matters the persons and issues involved…. Ignorance caused by a failure to institute
such procedures will not excuse a lawyer's violation of this Rule.”
10/ Rule 1-650 essentially dispenses with the need for conflicts checks in certain attorney pro bono limited legal
services representations not applicable to this opinion.
11/ While the facts here concern litigation, conflict checks regarding known persons or entities involved in other
matters, such as transactional and administrative matters, should also be conducted initially and refreshed as the
attorney becomes aware of new persons or entities who will be involved in the matter.
12/ Rules 3-310(B) and (C)(2) prohibit an attorney from continuing representation in the presence of the conflicts
discussed in those rules.

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attorney must seek informed written consent from both clients, disclosing the relevant circumstances and the actual
and reasonably foreseeable adverse consequences to the client providing consent.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of
California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors,
any persons, or tribunals charged with regulatory responsibilities, or any member of the State Bar.
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