In 2019, the State Bar of California rewrote its rules about Conflicts of Interest. We recently brought in a new partner into our firm, and I was doing some research about the new rules in order to make sure we remained compliant when this attorney left their current firm to join ours. In doing so, I read quite a bit about what the conflict rules actually mean, and found that they could just as easily apply to any relationship – personal, business, or legal – as they could to attorneys that are trying to determine whether they can take on a new client.
California Bus. & Prof. Code sets out the overarching rule for attorney conflicts:
“It is the duty of an attorney to… maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”
Essentially, at their root meaning, the rules prevent an attorney from using information that was gained in representing a client against that same client. But the rules also seek to prevent even the appearance of a breach of something more amorphous – a duty of loyalty to that client.
The example is often given that the only reason to breach the confidence of a client is if it will prevent a crime that is likely to result in death of or substantial bodily harm to someone. Note that it is not permissible to breach the confidence to prevent any crime – there needs to be higher stakes. More often, the issue arises when an attorney’s old firm represented a client, and that attorney, while never working on the file, seems to have a conflict of interest in pressing forward with a lawsuit against the client of their former firm. This is not an actual conflict, but the appearance of a conflict can be just as hurtful to a client as an actual conflict.
I don’t like turning away clients, but I am necessarily much more concerned with keeping the clients I already have happy. If I know that I can take a case where I don’t actually have a conflict, but where one of my current clients will think that I am breaching their trust by handling the case, I’m turning down that case every time. California law agrees with my decision.
Similarly, when I look at the actions of others, I’m often not bothered by them until the behavior that I deem objectionable is being undertaken by one of my friends or family members. Sure, disliking lawyers is all well and good for 57% of the population, but when my good friend says that, it becomes shocking. Where it gets even thornier is when one of my friends constantly reminds me that they disagree with something they know that I stand for. For those now asking whether those people are truly your friends, you clearly don’t spend much time on social media, where by having the ability to post (and repost) some are able to feel like they have law degrees, medical degrees, and in the case of our example, astrophysicist degrees. These people will post vile lies, and just because it’s someone else’s words, or the subtext to a pretty picture, they think that the meaningfulness of it coming from a friend is stripped away.
I’ve written several times before about the advice I was given in law school about waiting to hit send on an email until you would feel comfortable handwriting the same note and putting it in the mail to the intended recipient. But if 2020 has taught me anything thus far, it is that we should also think about our friends and family members, those who are vulnerable, and those who we don’t have an actual conflict with before we take action that will create a perceived conflict. After all, eventually the stream of new clients and friends will end, and then who are you stuck with?