December 23, 2015
Analyzing Conflicts of Interest When You Join a Matter in Progress
It is axiomatic that for new matters, attorneys and firms perform a conflicts check to determine whether there are any actual or potential conflicts, because the California Rules of Professional Conduct, Rules 3-310(B), (C), and (E), prohibit attorneys from representing clients with adverse interests, absent informed written consent of the clients. But when an attorney substitutes in to a matter in progress, the conflicts check should be even more rigorous. In Formal Opinion 2011-182, the State Bar of California’s Standing Committee on Professional Responsibility and Conduct analyzed the conflicts presented by discovery served by one client against another, and outlined the heightened obligations to perform conflicts checks when substituting in or associating in to an ongoing matter.
When an attorney represents a party at the outset of a matter, little may be known about additional parties or witnesses beyond plaintiff and defendant. But when an attorney substitutes in as counsel to a matter in progress, there is much more information about parties who are involved, or may reasonably be expected to become involved, in the matter. And all of this additional information should be considered in the conflicts check. Specifically, the Opinion provides that when an attorney is substituting in as counsel for a matter in progress, the conflicts check should encompass not only actual or potential conflicts with clients, but also actual or potential conflicts with “reasonably foreseeable parties and witnesses.”
So, third party witnesses, party witnesses, discovery targets, experts, cross-defendants and counter-defendants, intervenors, and similar parties should all be considered in a proper conflicts check at the outset of representation for matters in progress. Similarly, the Opinion confirms the ongoing duties to check conflicts as any matter progresses: “The attorney should also refresh conflict checks upon the appearance of new parties and witnesses during the pendency of a representation.”