Under former California rules, may a lawyer condition representation on the client's advance blanket waiver of the right to disqualify the lawyer in any later matter, regardless of whether confidential information learned would be relevant?

Currency note

This opinion was issued in 1989, under the former California Rules of Professional Conduct and before the State Bar of California's adoption of the November 1, 2018 revisions. The opinion interprets former Rules 3-110 (competence), 3-310 (conflicts), 3-400 (prospective limitation of liability), and 3-700 (withdrawal), together with Business and Professions Code section 6068(e). The substance is now distributed across current California Rules 1.1, 1.6, 1.7, 1.8.8, and 1.16. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee considered a scenario in which lead counsel asked local counsel to assist in trying a litigated case. Local counsel had a number of clients with interests presently or potentially adverse to lead counsel's client. Local counsel would assist only on the condition that lead counsel's client waive in advance the right to disqualify local counsel in any later matter in which local counsel represented adverse parties, and regardless of whether confidential information local counsel received would be relevant.

The committee opined that former Rule 3-310(A), (B), and (D) restricted concurrent and successive adverse representation, and that "informed" consent under Rule 3-310(F) required "full disclosure to the client of the circumstances and advice to the client of any actual or reasonably foreseeable adverse effects of those circumstances upon the representation." Business and Professions Code section 6068(e), although phrased absolutely, is waivable by the client.

The committee opined that the controlling authority is Maxwell v. Superior Court, 30 Cal.3d 606 (1982), in which the California Supreme Court upheld a blanket waiver in a capital case retainer that granted counsel media rights to the defendant's life story. Maxwell stated that the trial court need not separately explore each foreseeable conflict and consequence; the waiver may be effective if the client is competent to waive his rights and the disclosure provisions explain the basic problem. The committee opined that Maxwell stands for the general proposition that an advance waiver of both conflict and confidentiality protections is not per se invalid.

The committee opined that the harder question is when a potential conflict ripens into actual conflict. Maxwell footnote 10 noted that the court retained power to act when an actual conflict materialized and produced obviously deficient performance. Additionally, the Discussion to Rule 3-310 stated that "if the potential adversity should become actual, the member must obtain the further consent of the clients pursuant to paragraph (B)." The committee concluded that, in a litigated matter, the court retains the right to disqualify counsel despite a blanket waiver if continued representation would seriously compromise the integrity of the judicial process (citing Code Civ. Proc. section 128(a)(5); Elliott v. McFarlane Unified School District, 165 Cal.App.3d 562 (1985)).

The committee identified two factors for the actual-conflict analysis: (1) the degree of local counsel's involvement in the original matter (from "mail drop" to full participation), and (2) the nature of the subsequent conflict (from unrelated representation to direct adversity in the same dispute). The committee opined that a court would preclude representing both sides of a dispute simultaneously (citing Klemm v. Superior Court, 75 Cal.App.3d 893 (1977); Hammett v. McIntigue, 114 Cal.App.2d 148 (1952); McClure v. Donovan, 82 Cal.App.2d 664 (1947)). In that case, with an informed original waiver, local counsel could withdraw from the original representation and continue its own client representation, even using otherwise confidential information. If the subsequent representation was unrelated, local counsel could continue both.

The committee opined that the waiver cannot insulate the lawyer from competence-based discipline under former Rule 3-110. If the conflict makes competent performance impossible, the lawyer must withdraw under former Rule 3-700(B)(2). The waiver also cannot prospectively limit malpractice liability; an agreement intended to do so would subject the lawyer to discipline under former Rule 3-400.

The committee opined that, in appropriate circumstances and with knowledgeable, sophisticated clients, such agreements may clarify obligations, but that in many circumstances the agreement may be ineffectual or perceived as overreaching. The committee expressly opined that the opinion is not an endorsement of the type of agreement discussed.

Common questions

Q: Is a blanket waiver of disqualification rights per se improper?

A: Per the opinion (relying on Maxwell v. Superior Court), no. The committee opined that to the extent the client is "informed" of foreseeable risks within former Rule 3-310(F), the advance waiver does not violate the Rules of Professional Conduct.

Q: Does the waiver survive into an actual conflict?

A: Per the opinion, not necessarily. The committee opined that the court retains the power to disqualify counsel in actual conflict, and the analysis depends on the degree of involvement in the original matter and the nature of the new representation. The Discussion to former Rule 3-310 also suggested that further consent is required when adversity becomes actual.

Q: Can the lawyer continue if a direct adversity later arises?

A: Per the opinion (citing Klemm), the lawyer could not represent both sides at once in the same dispute. But with an informed original waiver, local counsel could withdraw from the original representation and continue representing its own existing client, even using confidential information learned in the original case.

Q: Does the waiver protect the lawyer from incompetence discipline?

A: Per the opinion, no. The committee opined that the waiver cannot insulate the lawyer from a Rule 3-110 disciplinary charge if the conflict prevents competent performance, and the lawyer must withdraw under former Rule 3-700(B)(2) if competent performance becomes impossible.

Q: Can the waiver limit malpractice liability?

A: Per the opinion, no. The committee opined that an agreement intended to limit prospective malpractice liability would itself subject the lawyer to discipline under former Rule 3-400.

Q: Does the committee endorse blanket conflict waivers?

A: Per the opinion, no. The committee expressly cautioned that the opinion should not be construed as an endorsement, observing the agreement "may well be perceived as over-reaching."

Background and rules framework

The opinion interprets former California Rules 3-110 (competence), 3-310 (conflicts, including (A), (B), (D), (F)), 3-400 (prospective liability limitation), and 3-700 (withdrawal, including (B)(2)), together with Business and Professions Code section 6068(e) and California Code of Civil Procedure section 128(a)(5). The substance is now distributed across current California Rules 1.1, 1.6, 1.7, 1.8.8, and 1.16.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 3-110
• Former California Rule 3-310, including (A), (B), (D), and (F); and its Discussion
• Former California Rule 3-400
• Former California Rule 3-700(B)(2)

Statutes:

• Cal. Bus. & Prof. Code section 6068(e)
• Cal. Code Civ. Proc. section 128(a)(5)

Cases:

• Maxwell v. Superior Court, 30 Cal.3d 606 (1982), blanket waiver of conflicts and confidentiality
• Klemm v. Superior Court, 75 Cal.App.3d 893 (1977), no dual representation of adverse parties
• Hammett v. McIntigue, 114 Cal.App.2d 148 (1952), same
• McClure v. Donovan, 82 Cal.App.2d 664 (1947), same
• Elliott v. McFarlane Unified School District, 165 Cal.App.3d 562 (1985), court's disqualification power

See also

• CA Ethics Op. 1989-113: Representing a Third Party Adverse to a Subsidiary
• CA Ethics Op. 1993-133: Suing the Opposing Party's Former Lawyer

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Source HTML: https://www.calbar.org/ethics/Opinions/1989-115.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinions - FORMAL OPINION NO. 1989-115

Editor's Note:

State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.

THE
STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON

PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION 1989-115

ISSUE:

Is it ethically proper for an attorney to require a potential client to execute a blanket waiver of the client's right to disqualify the attorney in any other matter, based on a breach of the attorney's duty to maintain confidences and/or to avoid conflicts of interest?

DIGEST:

Such an agreement is not ethically improper per se, is enforceable in appropriate circumstances, but creates a potential for violations of the Rules of Professional Conduct which are non- waivable by the client.

AUTHORITIES INTERPRETED:

Business and Professions Code section 6068, subdivision (e).

Rules 3-110, 3-310, 3-400 and 3-700 of the Rules of Professional Conduct of the State Bar of California.

DISCUSSION

In a matter currently in litigation, lead counsel has requested local counsel to assist in the trial of the case. Local counsel represents a number of clients whose interests are presently or potentially adverse to lead counsel's client. Local counsel is willing to assist in the trial, but only on condition that lead counsel's client waive its right to disqualify local counsel in any matter in which local counsel represents parties adverse to lead counsel's client, and regardless of whether confidential information received by local counsel is relevant to the subsequent representation. The Committee has been asked to opine on the ethical propriety of the agreement.

Absent informed written consent, rule 3-310(A) of the California Rules of Professional Conduct precludes a lawyer from accepting or continuing representation if the lawyer has had a relationship with another party interested in the representation; rule 3-310(B) precludes the concurrent representation of multiple clients with conflicting interests; and rule 3-310(D) precludes acceptance of employment adverse to a present or former client if the lawyer has obtained material confidential information from the present or former client. Rule 3-310(F) defines "informed" as "full disclosure to the client of the circumstances and advice to the client of any actual or reasonably foreseeable adverse effects of those circumstances upon the representation." Finally, section 6068, subdivision (e) of the Business and Professions Code prohibits an attorney from revealing secrets and confidences of his or her client at any time, but that protection, too, is waivable by the client.

Whether a client's waiver of the protections provided by rule 3-310 or Business and Professions Code section 6068, subdivision (e) is "informed" is obviously a fact-specific inquiry. Nonetheless, the leading case of Maxwell v. Superior Court (1982) 30 Cal.3d 606 [180 Cal.Rptr. 177, 639 P.2d 248] is instructive. In Maxwell, an indigent criminal defendant charged with a capital offense entered into a fee agreement with his attorneys, granting them media rights in the story of his life, including the criminal matter then pending. The contract spelled out in general terms the potential conflict of interest issues, the extent of the waiver of confidentiality, and the risks inherent in the arrangement. The trial court after determining that the defendant knowingly and willingly had agreed to the contract, nevertheless disqualified the attorneys because of the inherent conflict of interest created by the agreement.

The California Supreme Court reversed and ordered the attorneys reinstated. Focusing specifically on the blanket waiver aspect of the agreement, the court stated that:

In determining whether the waiver of potential conflicts is knowing, intelligent, and unconditional, the trial court must 'navigate adroitly between the Scylla of denying a defendant the right to determine his own fate and the Charybdis of violating his right to counsel. . . . ' . . . Some federal cases have implied that the court's inquiry must separately explore each foreseeable conflict and consequence and that defendant's waiver may extend only to matters discussed in detail on the record.

. . . Rules that are that strict seem neither necessary nor workable. Not all imaginable consequences of a conflict that inheres in a life-story contract can be predicted before the trial . . . . The trial court's procedure here, we think, sufficiently established that petitioner was competent to waive his rights.

. . . The judge also acted properly by referring the disclosure provisions of the agreement and carefully determining that petitioner had read and understood each one. Those provisions explained the basic problem - that counsel's economic motivations might run counter to petitioner's trial concerns. They warned that counsel might be tempted in specified ways to sabotage petitioner's defense. They also cautioned that not all problems could be foreseen. Waiver of the consequences of potential conflict was not inadequate simply because neither the court nor the agreement undertook the impossible burden of explaining separately every conceivable ramification. (Maxwell v. Superior Court, supra, 30 Cal.3d at pp. 621-622.)

In arriving at its conclusion, the Maxwell court stressed the importance of the right of a criminal defendant to counsel of his choice. On the other hand, the prejudice to a defendant charged with a capital offense of having representation compromised by a conflict of interest is extreme. The issue presented to this Committee is different, in that it involves neither the Constitutional issues unique to criminal defendants, nor the severity of the prejudice of compromised representation in a capital case. In addition, Maxwell involved a potential conflict of interest between lawyer and client; here we are concerned with a potential conflict between one client and another. Despite these differences, the Committee believes that Maxwell stands for the general proposition that an advance waiver of both conflict of interest and confidentiality protections is not, per se, invalid.

Consequently, it is the opinion of the Committee that if, within the meaning of rule 3-310(F), the client is "informed" of the potential risks that are foreseeable at the time of the consent, no Rule of Professional Conduct is violated by the attorney's requiring the client's advance waiver. Moreover, to the extent that the client is adequately informed of the information and communications which may be disclosed and the use to which they may be put, we believe that the subsequent disclosure of such information by the attorney does not violate either rule 3-310 or Business and Professions Code section 6068, subdivision (e).

A more difficult question is presented if the conflict of interest is only potential at the commencement of the representation, but subsequently ripens into an actual conflict. Maxwell held only that "When the possibility of significant conflict has been brought to the court's attention and the danger of proceeding with chosen counsel has been disclosed generally to defendant, he may insist on retaining his attorneys if he waives the conflict knowingly and intelligently for purposes of the criminal trial." (Maxwell v. Superior Court, supra, 30 Cal.3d at p. 619.) The court noted, however, that "We do not deprive the trial court of power to act when an actual conflict materialized during the proceedings, producing an obviously deficient performance. Then the court's power and duty to ensure fairness and preserve the credibility of its judgments extends to recusal even when an informed defendant, for whatever reason, is cooperating in counsel's tactics." (Id. fn. 10.)

In addition to the caveat expressed by the Maxwell court, the Discussion section of rule 3-310 suggests that advance waivers of potential conflicts are insufficient if the lawyer subsequently represents another client against the client who executed the waiver. In discussing the circumstances under which multiple clients with potentially adverse interest might wish to consent to representation by one attorney, the Discussion states that "if the potential adversity should become actual, the member must obtain the further consent of the clients pursuant to paragraph (B)."

Both the language of Maxwell and the rule 3-310 Discussion lead the Committee to conclude that in the context of a litigated matter, the court retains the right to disqualify counsel, despite an advance blanket waiver, if continued representation would seriously compromise the integrity of the judicial process and the fairness of the particular proceeding.1 Whether such disqualification would be required is again a fact specific inquiry, but the two most significant factors involved are the degree of involvement in the original matter and the nature of the conflict in the subsequent representation. Local counsel's role in the original matter may range from serving as a "mail drop" for papers and correspondence to participating fully in preparing and trying the case. As the degree of involvement increases so, obviously, does the possibility of a direct conflict of interest should local counsel become involved in a matter in which it is opposing lead counsel's client. Moreover, as the involvement increases, so does the possibility that the original waiver was not "informed."

In addition, the nature of the subsequent conflict of interest may range from simply representing two clients in entirely unrelated matters to actually representing both sides in the same dispute. While a court would doubtless preclude a lawyer from representing both sides simultaneously,2 the Committee believes that in such situation, if the original waiver was informed, local counsel could withdraw from its representation of lead counsel's client and continue to represent its own client even if otherwise confidential information would be used against lead counsel's client.

If the subsequent representation was unrelated to the original matter, the Committee believes that local counsel could continue its participation in the original matter at the same time as it is representing its own client in the unrelated matter.

Wholly apart from the effectiveness of the waiver for purposes of disqualification, is its effect on the obligation of the lawyer to perform competently. Rule 3-110 prohibits an attorney from intentionally failing to perform legal services competently. In Maxwell, the attorneys specifically provided in the retainer agreement that they would "conduct all aspects of the defense of Maxwell as would a reasonably competent attorney acting as a diligent conscientious advocate." (Maxwell v. Superior Court, supra, 30 Cal.3d at p. 611.) Whether or not the advance waiver is sufficient to preclude a disqualification motion, it plainly cannot insulate the lawyer from disciplinary action by the State Bar if, as a result of the conflict of interest, the lawyer fails to perform services competently. Indeed, should it become clear to the lawyer that he or she cannot perform competently under the circumstances, the lawyer would be obligated under rule 3-700(B)(2) to withdraw from the representation, and his or her failure to do so would result in an independent violation of that rule.

Nor would the waiver, if otherwise valid, protect the lawyer from a malpractice action by the client if the conflict prevented the lawyer from performing competently. To the extent that the agreement in question is intended to so protect the lawyer, the mere execution of it would subject the lawyer to discipline under rule 3-400, which forbids contracts intended to prospectively limit malpractice liability.

In summary, then, it is the opinion of the Committee that the execution of an advance waiver of conflict of interest and confidentiality protections is not per se improper; that to the extent that the waiver of confidentiality is "informed," it is valid; that to the extent that a potential conflict ripens into an actual conflict, the advance waiver may or may not be sufficient depending upon the degree of involvement and the nature of the subsequent conflict; that regardless of the validity of the waiver, it cannot be asserted as a defense to a disciplinary proceeding charging incompetent performance of legal services; and that under no circumstances may the agreement be used for the purposes of limiting the lawyer's civil liability for malpractice.

In concluding, we observe that it is possible in appropriate circumstances and with knowledgeable and sophisticated clients to clarify obligations and responsibilities by agreements of the sort discussed. It is also possible that in many circumstances the agreement will be ineffectual and may well be perceived as over- reaching on the part of the lawyer.3 Consequently, the Committee wishes to make clear that this opinion should not be construed as an endorsement of the type of agreement discussed.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities or any member of the State Bar.

1 California Code of Civil Procedure section 128, subdivision (a)(5); Elliott v. McFarlane Unified School District (1985) 165 Cal.App.3d 562, 567 [211 Cal.Rptr. 802].

2 See Klemm v. Superior Court (1977) 75 Cal.App.3d 893, 898 [142 Cal.Rptr. 509]; Hammett v. McIntigue (1952) 114 Cal.App.2d 148, 153-154 [249 P.2d 885]; McClure v. Donovan (1947) 82 Cal.App.2d 664, 666 [186 P.2d 718]. As the Klemm court stated, "[N]o case we have been able to find sanctions dual representation in conjunction with a trial or hearing where there is an actual, present, existing conflict and the discharge of duty to one client conflicts with the duty to another . . . . As a matter of law a purported consent to dual representation of litigants with adverse interests at a contested hearing would be neither intelligent nor informed." (Klemm v. Superior Court, supra, at p. 898.)

3 Indeed, in Maxwell, counsel conceded at oral argument that the advance waiver of all privileges which would interfere with counsel's media rights did involve overreaching.