A new client requests your services. You run your conflict check and discover that the requested matter is against a former client. What are your ethical obligations? Can you represent this new client? Is the former client a former client or an existing client? In some instances, the answer is clear.
Client A hired Attorney to represent him in a landlord-tenant dispute. The scope of the representation was described in an engagement letter.¹ A court has issued a judgment in connection with the case. The matter is over. Attorney thanks Client A for retaining her and sends a disengagement letter. At this point, Attorney has an obligation to maintain the client records for at least five years; and upon the client’s request, to release the files regarding the case to Client A, at no cost² to the client. Attorney still has a fiduciary duty to Client A on the matter of the representation. (See Cal.State Bar Form.Opn. 2016-195, The Bar Association of San Francisco Opinion 2014-1, and Business and Professional Code Section 6068(e))
However, what about those instances in which the representation is on-going and on several legal matters? In other words, the Attorney or Law Firm was retained on an “as-needed basis.” In some years, the client, Client B, requests legal services. In other years, there are no requests. What are the Attorney’s ethical obligations if during one of the no-contact period, a new client, Client C, requests representation on a matter in which Client B is involved, but is unrelated to representation of Client B. Is Client B an existing client or a former client? It all depends.
Factors to be considered to make this decision may include: the length of time in which there is no contact; the expectations of the Attorney and the client; and/or the absent or amount of fees paid. The Attorney should have a reasonable basis for concluding that Client B is either an existing client or a former client.
Why does it matter anyway? If Client B is an existing client, the Attorney may be required to obtain the consent of Client B before accepting representation of Client C, due to the duty of loyalty that Attorney has with Client B (See Rules of Professional Code (RPC) 3-310 and Business and Professional Code, Section 6068(e).) In addition, if Client B is an existing client, Attorney is required to disclosed the existing relationship to Client C (See RPC 3- 310(b)(1). However, if Client B is a former client, Attorney can proceed to accept the representation of Client C in the unrelated matter, provided Attorney has obtained no confidences from Client B that is material to the new representation with Client C.
What is the practical advice? Attorneys should describe the scope of legal services in a written engagement letter, and send a letter of dis-engagement when the representation is over. If there is no engagement letter, the attorney should have a reasonable basis for concluding that the client is a former client.
1. A written engagement letter is required for legal services in excess of $1,000, except if the client is a corporation. (Business and Professional Code, Section 6148). Common practice however, is to always have an engagement letter as it describes the scope of the representation.
2. RPF 3-700D does permits the attorney to charge the client for the costs of copying the files so that the Attorney may retain such files for her records.
Dianne Jackson McLean, is a partner at the law firm of Goldfarb & Lipman, where she is a transactional attorney representing public housing authorities, cities, and other government agencies in affordable housing, land use and economic development matters. She also provides advice to her firm on ethics.