New California Rules of Professional Conduct (“CRPC”), Rule 1.9, describes an attorney’s duties to a former client and is divided into three categories.
Subsection (a) prohibits a lawyer who represented a client from representing another person in the same or substantially related matter in which the matter is adverse to the former client without the former client’s written consent. Subsection (b) addresses conflict issues associated with attorney mobility. A law firm may not represent a party in the same or a substantially related matter where a lateral lawyer’s former firm represented a party with materially adverse interests and the lateral lawyer has actual knowledge of confidential information. See Rule 1.9(b), Comment [4]. Thus, in some instances, there would be no conflict of interest if the affected lawyer was not involved in the matter. Subsection (c) deals with a lawyer’s responsibility to protect a former client’s confidential information and prohibits using such information to injuriously affect the former client. Rule 1.9(c), Comment [1]. Client information obtained in the former representation may not be used by the lawyer or the law firm in the current representation except when permitted by the CRPC or the State Bar Act with respect to a current client, or when such information has become generally known. Rule 1.9(c)(1). Information in a public record does not, by itself, render that information generally known. Rule 1.9, Comment [5]. Firms need to be prudent when hiring attorneys, as a lateral attorney’s duties to former clients are applicable to the new firm.
New Rule 1.16 outlines circumstances prohibiting representation and mandating termination of representation, as well as grounds permitting withdrawal. Subsection (a) provides the following categories prohibiting representation or requiring withdrawal: (1) when the lawyer knows or should know the client is acting “without probable cause and for the purpose of harassing or maliciously injuring any person;” (2) the lawyer knows or should know the representation will violate the CRPC or the State Bar Act; and (3) the lawyer’s mental or physical condition renders it unreasonably difficult to carry out the representation effectively. Subsection (a)(4) is straightforward and provides that the client may always terminate the attorney. Ten grounds for permissive termination of representation are described in subsection (b). Many of the reasons are similar to subsection (a), but are not as certain or immediate. The lawyer must obtain the consent of a tribunal if required by the rules of such tribunal and should be careful not to reveal any confidential client information when moving to withdraw. Rule 1.16(c), Comment [4]; see also Cal. State Bar Formal Opn. 2015-192. In all instances, the lawyer must take certain steps to ensure that the client is not adversely affected by the withdrawal. Rule 1.16(d). Upon termination, the lawyer must also provide the client’s files at the request of the client and refund any unearned money. Rule 1.16(e)(1-2). Client files must be returned even if the client has outstanding legal bills. Lawyers need to continue to evaluate their on-going duties to a client, even after representation ends. In some instances, a court may not approve a lawyer’s motion to withdraw, even though a lawyer seeks to withdraw due to a conflict of interest. An attorney is nonetheless required to follow the court’s order. Rule 1.16, Comment [4].
About the author:
Dianne Jackson McLean is a transactional partner at Goldfarb & Lipman, who practices in the areas of affordable housing, community economic development, municipal law and ethics.