(Based on The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2019-197.)

When a lawyer consults another lawyer about matters involving the first lawyer’s current client, ethical questions arise concerning what disclosures the lawyer must make to the client about that consultation. (Bus. and Prof. Code, § 6068(m). )

It is a duty of a lawyer “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” (Bus. and Prof. Code, § 6068(e)(1).) A lawyer’s duty to preserve the confidentiality of client information involves public policies of paramount importance. (In Re Jordan (1974) 12 Cal.3d 575, 580 [116 Cal.Rptr. 371].) As such, “[a] lawyer shall not reveal information protected from disclosure unless the client gives informed consent.” (Rules of Prof. Conduct, Rule 1.6(a); Bus. and Prof. Code, § 6068(e)(1); Commercial Standard Title Co. v. Super. Ct. (1979) 92 Cal.App.3d 934, 945.)

Legal Standard

“The scope of an attorney's duty may be determined as a matter of law based on the Rules of Professional Conduct which, together with statutes and general principles relating to other fiduciary relationships, all help define the duty component of the fiduciary duty which an attorney owes to his [or her] client.” (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534-1535.)

“It is… 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.” (Santa Clara County Counsel Attys. Ass'n v. Woodside (1994) 7 Cal.4th 525, 548.) The fiduciary duty that attorneys owe to their clients also includes a duty of communication. (In re O.S. (2002) 102 Cal.App.4th 1402, 1411.) “[T]he dealings between practitioner and client frame a fiduciary relationship. The duty of a fiduciary embraces the obligation to render a full and fair disclosure to the beneficiary of all facts which materially affect his rights and interests.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 188-189.)

“A lawyer shall:

1. promptly inform the client of any decision or circumstance with respect to which disclosure or the client’s informed consent is required by these rules or the State Bar Act;
2. reasonably consult with the client about the means by which to accomplish the client’s objectives in the representation;
3. keep the client reasonably informed about significant developments relating to the representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed; and
4. advise the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.”

(Rules of Prof. Conduct, Rule 1.4(a).)

“‘Informed consent’ means a person's agreement to a proposed course of conduct after the lawyer has communicated and explained

1. the relevant circumstances and
2. the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct.”

(Rules of Prof. Conduct, Rule 1.0.1(e).)

“A law firm is not necessarily disloyal to a client ‘by seeking legal advice to determine how best to address [a] potential conflict.’” (Palmer v. Super. Ct. (2014) 231 Cal.App.4th 1214, 1233.) “The attorney’s and client’s interests are likely to dovetail insofar as the attorney seeks to resolve the dispute to the client’s satisfaction, or determine through consultation with counsel what his or her ethical and professional responsibilities are in order to comply with them.” (Id. at p. 1233-1234.)

Disqualification

The Court has the authority to disqualify attorneys who violate professional ethical rules because every Court has the power to control, “in furtherance of justice,” the conduct of persons connected with its proceedings. (Jackson v. Ingersoll-Rand Co. (1996) 42 Cal.App.4th 1163, 1166.) Disqualification is proper to assure fairness in judicial proceedings -- its point is not to punish ethical transgressions, but to prevent continuing, detrimental effects upon the proceedings. (Id.)

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. Super. Ct. (1978) 20 Cal.3d 906, 915; SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) Disqualification is a drastic remedy that should be used only with caution; it usually imposes a substantial hardship on the disqualified attorney's innocent client. (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 300, 301.)