Purpose and Scope of Disqualification

In general, there are two types of situations in which conflicts requiring the disqualification of counsel may arise: successive representation and concurrent representation. (Cal West Nurseries, Inc. v. Superior Court (2005) 129 Cal.App.4th 1170, 1174.)

Concurrent Representation

Concurrent representation involves directly adverse conflicts between clients. The existence of this conflict is per se disqualification absent the informed written consent of both clients. (California Rules of Professional Conduct, Rule 1.7(a), (d); see also, Flatt v. Superior Court (Daniel) (1994) 9 Cal.4th 275, 284.)

Informed written consent generally requires both written disclosures by the lawyer to the clients and written consents provided by the clients. (California Rules of Professional Conduct, Rules 1.0.1.(e), (e-1), 1.7(a), (b).) It is possible for a client’s actions to invoke implied consent and waiver of potential conflicts. (Marriage of Friedman (2002) 100 Cal.App.4th 65, 71.)

Rule of Professional Conduct 1.7 (formerly 3-310(c)) provides that a lawyer will not, without informed written consent from each client, represent a client with an interest adverse to another client. In considering conflicts of interest in a concurrent representation, the court must focus on the attorney’s duty of loyalty. (Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 428.) “A per se or automatic disqualification rule applies when counsel's representation of one client is adverse to the interests of another current client.” (Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1724.)

Successive Representation

The scope of an attorney's duty of confidentiality to a former client is set out in the Rule of Professional Conduct 1.9 (formerly 3–310(E)). It provides in relevant part that: (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed written consent. “[A] ‘substantial relationship’ exists whenever the ‘subjects’ of the prior and the current representations are linked in some rational manner.” (Jessen v. Hartford Cas. Ins. Co. (2003) 111 Cal.App.4th 698, 711.)

Factor Test for Substantial Relationship

Three factors are used in determining whether there is a substantial relationship: factual similarity; legal similarity; and the nature and extent of the attorney’s involvement with the cases. (Rosenfeld Construction Co. v. Superior Court (1991) 235 Cal.App.3d 566, 576-577.) Two matters are “the same or substantially related” for the purposes of Rule 1.9, if they involve a substantial risk of a violation of an attorney’s duty not to do anything that will injuriously affect the former client in any matter in which the lawyer represented the former client, and use against the former client knowledge or information acquired by virtue of the previous relationship. (Rules of Prof. Conduct, rule 1.9, comments 1 [citing Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811] & 3.) This occurs, for example, if the matters involve the same transaction or legal dispute; or if the lawyer normally would have obtained confidential information, and the lawyer would be expected to use or disclose that information in the subsequent representation because it is material to the subsequent representation. (Rules of Prof. Conduct, rule 1.9, comment 3.)

The power of the court to order the disqualification of counsel is statutory. “Every court shall have the power to do all of the following: [¶] … [¶] (5) [t]o control in furtherance of justice, the conduct of its ministerial officers, and all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (Code of Civil Procedure section 128(a)(5).) “Code of Civil Procedure section 128, subdivision (a)(5) gives courts the power to order a lawyer’s disqualification.” (DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 831-832.) A disqualification motion addresses a conflict between a party’s right to choose its counsel and the overall needs of the judicial system to maintain ethical standards of professional responsibility for attorneys. (Comden v. Superior Court (1978) 20 Cal.3d 906, 915; SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) “The paramount concern must be to preserve public trust in the scrupulous administration of justice and integrity of the bar. The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.” (SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th at 1145.)

Conflicts of Interest

“One of the principal obligations of every attorney is to protect each of his or her clients in every possible way. It is a clear violation of that duty for an attorney to assume a position adverse or antagonistic to the client without the latter’s free and intelligent consent, given with full knowledge of all the facts and circumstances.” Gilbert v. Nat’l Corp. for Hous. P’ships (1999) 71 Cal.App.4th 1240, 1253. “[A] conflict of interest exists whenever a lawyer’s representation of one of two clients is rendered less effective because of his representation of the other.” Id.

Trial Court's Review of Motion

“In exercising its discretion with respect to granting or denying a disqualification motion, a trial court may properly consider the possibility that the party brought the motion as a tactical device to delay litigation. Where the party opposing the motion can demonstrate prima facie evidence of unreasonable delay in bringing the motion causing prejudice to the present client, disqualification should not be ordered. The burden then shifts back to the party seeking disqualification to justify the delay. Delay will not necessarily result in the denial of a disqualification motion; the delay and the ensuing practice must be extreme.” (Western Continental Operating Co. v. Natural Gas Corp. (1989) 212 Cal.App.3d 752, 763-764.)

Appellate Review

On appeal, a trial court's decision concerning a disqualification motion will not be disturbed absent an abuse of discretion. (People ex rel Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal. 4th 1135, 1143.) "The trial court's exercise of this discretion is limited by the applicable legal principles and is subject to reversal when there is no reasonable basis for the action. [Citations.]" (In re Complex Asbestos Litigation (1991) 232 Cal. App. 3d 572, 585.) Only a Party with an expectation of confidentiality can disqualify a lawyer. (Id.)