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March 17, 2016

Costello v. Buckley (2016) 245 Cal.App.4th 748

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The Fourth District holds disqualification is proper in successive representation cases even if the matters have no substantial relationship to each other where the client proves the attorney actually received confidential information in the prior representation that is or could be pertinent to the later representation.

Robert Buckley represented Leslie Costello in an easement dispute with her neighbor. Leslie was dating Robert’s brother Peter, and she shared confidences with Robert about her relationship with Peter.  When Leslie and Peter split, Robert offered to withdraw as counsel in the dispute with the neighbor, but Leslie elected to continue with his representation.

Sometime later Leslie sued Peter to recover money she had loaned him. Peter retained Robert who served Leslie with requests for admissions demanding she admit she gave Peter money with no expectation of repayment due to their romantic relationship.  Leslie moved to disqualify Robert because he had acquired confidential information in the previous representation he could use against her. 

The Court of Appeal affirmed the trial court’s disqualification order. A motion to disqualify pits a client’s choice of attorney against the need to maintain ethical standards of professional responsibility. The preservation of public trust in the scrupulous administration of justice and the integrity of the bar is a paramount concern.

Business & Professions Code § 6068(e)’s duty to maintain client confidences and secrets continues after the termination of the attorney-client relationship.  An attorney cannot act for others where the client’s secrets, confidences or knowledge of the client’s affairs acquired in earlier employment can be used to the former client’s disadvantage.

Rule 3–310(E) of the Rules of Professional Conduct precludes, absent informed written consent, an attorney from accepting employment adverse to the former client where the attorney has obtained confidential information material to current matter through the prior representation.  The prohibition protects clients’ confidentiality.

In cases of successive representation, an attorney is barred from accepting employment adverse to a former client if the matters are substantially related. Matters are substantially related if the current matter involves the work the lawyer performed for a former client, or there is a substantial risk that representation of the current client will involve the use of confidential information acquired representing the former client. In substantially related matters, a presumption that the attorney possesses confidential information that may be used against the former client applies.

In addition, a former client may disqualify a former attorney by showing the former attorney actually possesses confidential information adverse to the former client. Where an attorney actually receives confidential information pertinent to subsequent adverse representation, the client is not relying on a presumption, and there need not be a relationship between the factual and legal issues of the two cases.

Although there was no substantial relationship between the easement dispute and the collection case, Robert actually received confidential information about the romantic relationship between his former client, Leslie, and his current client, Peter.  While the romantic relationship may be irrelevant to Leslie’s collection case, Peter was defending the case by arguing Leslie did not expect repayment because of their romantic relationship.

Comment: A client who can show former counsel acquired pertinent confidential information through prior representation does not have the additional burden to demonstrate the former and subsequent matters are substantially related.

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