CABAR 1998

If one lawyer in a California firm received material confidential information from a former client, may another lawyer in the same firm accept a representation adverse to that former client without obtaining the former client's informed written consent?

Short answer: Per California Formal Opinion 1998-152, the second lawyer is not subject to discipline under former Rule 3-310(E) because the rule references the individual 'member', not the firm; the imputed-knowledge doctrine is a civil-disqualification standard, not a disciplinary rule. As a matter of broader professional responsibility, however, the committee opined that the second lawyer should not accept the adverse representation without the former client's informed written consent if the second lawyer knows or through reasonable diligence could learn that another firm lawyer obtained material confidential information from the former client.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

State Bar of California COPRAC Formal Opinion 1998-152: Imputed Knowledge and Former-Client Consent in Side-Switching Cases

Short answer: The opinion concludes that former Rule 3-310(E) is keyed to the individual "member" rather than the law firm and so does not, by its terms, subject a non-personally-conflicted firm lawyer to discipline when another firm lawyer received material confidential information from the former client; the imputed-knowledge doctrine the California courts apply in disqualification motions is a civil standard, not a disciplinary rule. The committee nonetheless opined that as a matter of the lawyer's broader professional responsibility, the second lawyer should not accept the adverse representation without obtaining the former client's informed written consent where the second lawyer knows or, through reasonable diligence, could learn about the prior representation and the other firm lawyer's possession of material confidential information.

Currency note

This opinion was issued in 1998, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former Rules 1-100, 3-310(E), and 3-500, together with Business and Professions Code sections 6068(e) and 6068(m). Current Rules 1.9 and 1.10 now address former-client conflicts and imputed disqualification in California; the analysis below is rooted in the framework as it stood in 1998. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule reference.

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 hypothetical involved Lawyer A in Law Firm consulting at length with Client about a contemplated lawsuit, including the case's weaknesses and Client's anticipated strategies. Client terminated the relationship with Lawyer A and Law Firm and retained other counsel for the lawsuit. A defendant in the lawsuit then approached Lawyer B in Law Firm. The question was whether Lawyer B had to obtain Client's informed written consent before accepting that adverse representation.

The committee began by analyzing former Rule 3-310(E), which barred a "member" from accepting employment adverse to a former client where the member had, by reason of the representation, obtained material confidential information. As drafted, the rule pointed to the individual member, not the firm. Under former Rule 1-100(B)(2), "member" meant a member of the State Bar. Therefore Lawyer A could be subject to discipline if she took on the defendants' representation, but Lawyer B, who had not himself represented Client, was not within the rule's text.

The committee distinguished the civil imputed-knowledge rule the California courts apply in disqualification motions (Rosenfeld Construction Co. v. Superior Court (1991), Chadwick v. Superior Court (1980), Chambers v. Superior Court (1981), and others) from a disciplinary standard. Imputed knowledge originated in ABA DR 5-105(D) and later ABA Model Rule 1.10(a); California, however, declined to adopt the imputed-knowledge rule when redrafting its rules in 1975, 1989, and 1992. While former Rule 1-100(A) recognizes that members are also bound by applicable law including court decisions, the committee read those court decisions as articulating civil standards (the substantial-relationship test, the prophylactic disqualification framework) rather than disciplinary rules. Disqualification under former Rule 3-310(E), the committee noted, did not require proof that the lawyer wilfully breached the rule and did not require the moving party to disclose the substance of the confidential information; clear-and-convincing evidence required in discipline proceedings was not required for disqualification. So the existence of a civil disqualification rule did not, without more, expose the second lawyer to State Bar discipline.

Having concluded that Lawyer B was not subject to discipline under former Rule 3-310(E), the committee turned to what former Rule 1-100(A) called the lawyer's broader professional responsibility. That responsibility, the committee reasoned, encompassed duties not directly subject to discipline but designed to advance the same protective purposes the disciplinary rules serve. The rule against former-client adverse representations is rooted in the conflict between the duty to inform the new client of significant developments under former Rule 3-500 and Business and Professions Code section 6068(m), the duty to preserve former-client confidences under section 6068(e), the duty of competent representation, and the lawyer's continuing duty of loyalty to the former client. Imputed knowledge serves the same purposes and the same public-trust interest the California Supreme Court emphasized in cases like Cho v. Superior Court (1995).

The committee concluded that where Lawyer B knew, or through reasonable diligence could ascertain, that Lawyer A had acquired material confidential information from Client in a substantially related prior representation, Lawyer B should not accept the adverse representation without Client's informed written consent. Reasonable diligence, the committee noted, requires at a minimum a system for identifying whether an opposing party is a current or former client of the firm. The committee expressly did not opine on screening procedures, on situations where the personally conflicted lawyer is no longer with the firm, or on situations where the new lawyer left the firm before accepting the adverse representation.

Common questions

Q: Does California's former Rule 3-310(E) impute one firm lawyer's prior representation to all the others?

A: Per the opinion, no. The committee read the rule's reference to "member" as keyed to the individual lawyer who personally obtained the confidential information, not to the firm. Lawyer A could be disciplined; Lawyer B, who had not represented the former client, could not, simply on the basis of imputed knowledge.

Q: But couldn't the firm still be disqualified?

A: Per the opinion, yes. The committee acknowledged that California courts apply an imputed-knowledge rule in disqualification motions, citing Rosenfeld Construction Co. v. Superior Court and Chadwick v. Superior Court. The civil disqualification standard and the disciplinary standard, however, are different things; satisfying one does not automatically satisfy the other.

Q: So if Lawyer B is not facing discipline, why should Lawyer B still seek the former client's consent?

A: Per the opinion, because the lawyer's broader professional responsibility under former Rule 1-100(A) includes obligations that advance the principles underlying the disciplinary rules even when they are not themselves disciplinable. The committee identified the policy underlying former Rule 3-310(E), the duty to inform the new client under former Rule 3-500, the duty to preserve the former client's confidences under section 6068(e), the duty of competent representation, and continuing loyalty, and concluded the same consent process should follow when Lawyer B knows or should know of the conflict.

Q: What level of inquiry does the opinion expect of the second lawyer?

A: Per the opinion, the second lawyer should obtain consent when "the member knows or reasonably should know" of the other lawyer's prior representation and material confidential information. The committee added that reasonable diligence requires at a minimum a reasonable conflicts-check system at the firm.

Q: Does the opinion address ethical screens?

A: Per the opinion, no. The committee expressly assumed no screening had been employed and declined to opine on whether and when screening might be implemented in lieu of consent, noting only that California courts have generally declined to allow private-firm screening to rebut imputed knowledge in same- or substantially-related matters.

Background and rules framework

The opinion interprets former California Rules 1-100, 3-310(E) (former-client conflicts), and 3-500 (client communication), together with Business and Professions Code sections 6068(e) (confidentiality) and 6068(m) (client communication). Functionally these correspond, in current numbering, to Rules 1.9 and 1.10 of the California Rules of Professional Conduct, but at the time of the opinion California had not adopted ABA Model Rule 1.10(a) and did not impute one lawyer's former-client conflict to the firm as a matter of discipline. The committee analyzes the disqualification cases (which apply a civil imputed-knowledge rule) as a separate body of authority from the disciplinary rules.

Citations and references

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

Former California Rule 1-100, including 1-100(A) and 1-100(B)(2)
Former California Rule 3-310(E) (former-client conflicts)
Former California Rule 3-500 (client communication)

ABA Model Rules and Code (referenced for comparison):

ABA Model Code DR 5-105(D)
ABA Model Rule 1.7
ABA Model Rule 1.10(a)

Statutes:

California Business and Professions Code section 6068(e)
California Business and Professions Code section 6068(m)
California Code of Civil Procedure section 128(a)(5) (referenced via Metro-Goldwyn-Mayer)
California Evidence Code section 958

Cases:

Grove v. Grove Valve & Regulator Co. (1963) 213 Cal.App.2d 646, side-switching disqualification
Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, screening insufficient in same matter
Truck Insurance Exchange v. Fireman's Fund (1992) 6 Cal.App.4th 1050, disqualification
Dill v. Superior Court (1984) 158 Cal.App.3d 301, screening rejected
Big Bear Mun. Water Dist. v. Superior Court (1969) 269 Cal.App.2d 919, disqualification
In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, prophylactic disqualification standard
In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, but see
Rosenfeld Construction Co. v. Superior Court (1991) 235 Cal.App.3d 566, imputed knowledge
Chadwick v. Superior Court (1980) 106 Cal.App.3d 108, imputed knowledge
Chambers v. Superior Court (1981) 121 Cal.App.3d 893, vicarious disqualification
Elan Transdermal v. Cygnus Therapeutic Systems (N.D. Cal. 1992) 809 F.Supp. 1383, presumption of shared knowledge
General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, ABA Rules not binding in California
Cho v. Superior Court (1995) 39 Cal.App.4th 113, screening rejected; public-trust rationale
People v. Ballard (1980) 104 Cal.App.3d 757, ABA Rules not binding
Metro-Goldwyn-Mayer, Inc. v. Tracinda Corp. (1995) 36 Cal.App.4th 1832, court's inherent disqualification power
Higdon v. Superior Court (1991) 227 Cal.App.3d 1667, evidentiary standard for disqualification
Woods v. Superior Court (1983) 149 Cal.App.3d 931, scope of adversity
Yorn v. Superior Court (1979) 90 Cal.App.3d 669, adverse use of confidential information
Galbraith v. State Bar (1933) 218 Cal. 329, continuing duty to former client
Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, continuing duty
David Welch Co. v. Erskine & Tully (1988) 203 Cal.App.3d 884, lawyer fiduciary duty
H.F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, substantial-relationship test
River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297, prophylactic disqualification
Brockway v. State Bar (1991) 53 Cal.3d 51, Evidence Code section 958 scope
In the Matter of Lane (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 735, former Rule 4-101
Goldstein v. Lees (1975) 46 Cal.App.3d 614, fee consequences of disqualification
In re Fountain (1972) 74 Cal.App.3d 715, disgorgement
Edwards v. State Bar (1990) 52 Cal.3d 28, wilful breach standard
Durbin v. State Bar (1979) 23 Cal.3d 461, wilful breach standard
McKnight v. State Bar (1991) 53 Cal.3d 1025, wilful breach standard

Other opinions cited:

California State Bar Formal Opinion 1983-71: ABA materials as collateral source
California State Bar Formal Opinion 1993-128: screening of former government lawyer
San Diego County Bar Assn. Formal Opinion No. 1987-1: scope of adversity
Los Angeles County Bar Formal Opinion No. 396: lawyer self-defense disclosures
Los Angeles County Bar Formal Opinion No. 463: tension among confidentiality and communication duties

Source

Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
Original HTML: https://www.calbar.org/ethics/Opinions/1998-152.htm

Original opinion text

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

THE STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON

PROFESSIONAL RESPONSIBILITY AND CONDUCT

FORMAL OPINION NO. 1998-152

ISSUE:

When a member of the California State Bar undertakes representation of a new client in a matter which is adverse to a former client of the member's law firm, must the member obtain the former client's informed written consent before accepting the new representation?

DIGEST:

Under the facts presented a member of the California State Bar is not subject to discipline under rule 3-310(E) of the California Rules of Professional Conduct if the member accepts the representation without obtaining the former client's informed written consent. Nevertheless, the Committee believes that based on a California State Bar member's broader professional responsibility to a client, the member should not accept a representation adverse to a former client without first obtaining that former client's consent when the member knows or reasonably should know that another lawyer in the member's law firm obtained material confidential information during the representation of that former client.

AUTHORITIES INTERPRETED:

Rules 1-100, 3-310, and 3-500 of the California Rules of Professional Conduct.

Business and Professions Code sections 6068 (e) and 6068 (m).

STATEMENT OF FACTS

Lawyer A in Law Firm is consulted by Client over a period of several weeks about the merits of a lawsuit Client intends to bring against certain parties. Lawyer A and Client discuss in detail many of the weaknesses in the case and Client's anticipated strategies in the case. After the consultation, Client ends the lawyer-client relationship with Lawyer A and Law Firm and retains another firm to prosecute the lawsuit. One of the defendants in the lawsuit now seeks to retain Lawyer B in Law Firm to defend it in the case. Throughout the following discussion, "Client" refers to the former client of Lawyer A and Law Firm as described in these facts.

DISCUSSION

The proposed representation in this inquiry is a classic case of "side-switching" in which a lawyer or a law firm which has consulted with one side about a case goes on to represent the opposing party in the same case. California courts repeatedly have disqualified lawyers in civil cases from representing a new client against the opposing party formerly represented by the Lawyers in the same case when the opposing party actually communicated confidential information about the case in the prior consultation. (Grove v. Grove Valve & Regulator Co. (1963) 213 Cal.App.2d 646; Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109; Truck Insurance Exchange v. Fireman's Fund (1992) 6 Cal.App.4th 1050; Dill v. Superior Court (1984) 158 Cal.App.3d 301; Big Bear Mun. Water Dist. v. Superior Court (1969) 269 Cal.App.2d 919, 925-929; see also In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572; but see In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556.)

This opinion addresses an issue which the courts have considered in deciding side-switching cases, but which is not embodied in the California Rules of Professional Conduct. Rule 3-310(E) of the California Rules of Professional Conduct (hereinafter "rule(s)"), prohibits a "member" of the California State Bar from accepting representation adverse to a former client where, by virtue of representing the former client, the "member" has obtained material confidential information. Rule 3-310(E) states:

A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client, where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment. (Emphasis added.)

As written, rule 3-310(E) refers to a "member" and not to the member's law firm. Rule 1-100(B)(2) defines the term "member" as "a member of the State Bar of California."

Under rule 3-310(E), Lawyer A may be subject to discipline for representing defendants in Client's lawsuit because Lawyer A represented Client and obtained confidential information about the merits of Client's lawsuit which Lawyer A would have a duty to use or disclose against Client's interests in the lawsuit. However, under the rule, neither Lawyer B nor any other lawyer in Law Firm would be subject to discipline for representing any of the defendants since Lawyer B and the other lawyers in Law Firm are not the "member" who represented Client in the previous engagement and obtained the material confidential information.

As a result, rule 3-310(E) does not require the client's informed written consent under the facts presented. This opinion addresses whether Lawyer B is nevertheless precluded from accepting the representation in question without the former client's consent based on principles adopted in court decisions.

I. The Imputed Knowledge Rule in Disqualification Cases

In the non-disciplinary context of lawyer disqualification, California courts have addressed this problem by adopting an imputed knowledge rule. The imputed knowledge rule provides that client confidential information obtained by one lawyer in a law firm is deemed to be possessed by all other lawyers in the firm. (See, e.g., Rosenfeld Construction Co. v. Superior Court (1991) 235 Cal.App.3d 566, 573; Chadwick v. Superior Court (1980) 106 Cal.App.3d 108, 116; Chambers v. Superior Court (1981) 121 Cal.App.3d 893, 897-898.) The presumption that client information has been shared among lawyers in a law firm "is based on the common-sense notion that people who work in close quarters talk with each other, and sometimes about their work." (Elan Transdermal v. Cygnus Therapeutic Systems, supra, 809 F.Supp. at p. 1390.)

While not included in the California Rules of Professional Conduct, the imputed knowledge rule is derived from a model ethical rule outside of California which California courts have recognized and applied in the context of lawyer disqualification. The California cases which were among the first to apply the rule relied in part on DR 5-105(D) of the ABA Model Code of Professional Responsibility. (Chadwick v. Superior Court, supra, 106 Cal.App.3d at 116; Chambers v. Superior Court, supra, 121 Cal.App.3d at 898.) DR 5-105(D) stated that "[i]f a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment."

Nevertheless, the ABA rules do not establish disciplinary standards in California. The ABA Model Code of Professional Responsibility and the ABA Model Rules of Professional Conduct, which superseded the Model Code, have not been adopted in California and have no legal force of their own. (General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1190, fn. 6; Cho v. Superior Court (1995) 39 Cal.App.4th 113, 121, fn. 2; see also People v. Ballard (1980) 104 Cal.App.3d 757, 761; Cal. State Bar Formal Opn. No. 1983-71.)

II. Distinguishing Disciplinary Rules and Civil Standards

Does the imputed knowledge rule adopted by the courts constitute a disciplinary standard? On the one hand, rule 1-100(A) states that the prohibitions of certain conduct contained in the California Rules of Professional Conduct are not exclusive and that California State Bar members are also bound by applicable law including opinions of California courts. On the other hand, not every civil standard stated in the case law subjects a lawyer to discipline.

This dichotomy is present in the civil standards relating to lawyer disqualification involving rule 3-310(E). The fact that a standard exists in the context of lawyer disqualification does not automatically subject the lawyer to State Bar prosecution. Motions to disqualify counsel include civil standards which are unique to disqualification proceedings.

The difference between legal principles which exist for determining disqualification and rules by which lawyers are bound under rule 1-100(A) stems from the difference between the specific nature of a disqualification motion and the broader interests the California Rules of Professional Conduct exist to serve. The California Rules of Professional Conduct are intended to regulate professional conduct of lawyers through discipline. They are designed to protect the public and promote respect and confidence in the legal profession. (Rule 1-100(A).) A lawyer has a duty to refrain from wilfully breaching those rules. (Rule 1-100(A).)

By contrast, a court's power to order disqualification is derived from the power inherent in every court to control the administration of proceedings before it. (Code Civ. Proc., § 128 (a)(5); Metro-Goldwyn-Mayer, Inc. v. Tracinda Corp. (1995) 36 Cal.App.4th 1832, 1839.) Disciplinary rules are but one of the factors on which courts decide whether disqualification is necessary to preserve the integrity of the judicial process. (In re Complex Asbestos Litigation, supra, 232 Cal.App.3d at p. 586.)

Lawyer disqualification is prophylactic in nature. Lawyer disqualification decisions under rule 3-310(E) do not turn on whether the lawyer in question wilfully breached the rule, but on the merits of the former client's interest in preserving the confidentiality of the information imparted to the lawyer. (See, e.g., In re Complex Asbestos Litigation, supra, 232 Cal.App.3d at p. 586; River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297, 1308-1310.) Because of the prophylactic nature of lawyer disqualification motions, courts also employ a unique rule of evidence in applying rule 3-310(E). A disqualification motion made under rule 3-310(E) involves a current client who was not a party to the prior lawyer-client relationship or to the confidential communication in question.

Disqualification does not require the moving party to disclose the nature or content of the confidential information or prove that any confidential information was disclosed or utilized by any lawyer in the representation of a subsequent client. (In re Complex Asbestos Litigation, supra, 232 Cal.App.3d at p. 586.) By contrast, in a civil or disciplinary proceeding involving a charge by the client that the lawyer has breached his or her duty, there is no privilege, and a lawyer may reveal such information when relevant to refute the former client's claims against the lawyer. (See Evid. Code, § 958; Brockway v. State Bar (1991) 53 Cal.3d 51, 63; L.A. Cty. Bar Formal Opn. No. 396 (1982).)

In short, motions to disqualify under rule 3-310(E) involve policies and concerns which are specific to disqualification proceedings. While disqualification motions also involve principles which are consistent with the overall purposes of the California Rules of Professional Conduct stated in rule 1-100(A), disqualification cases also involve policies that are prophylactic in nature and applicable generally only to disqualification motions and other proceedings arising out of them. These principles do not necessarily establish civil standards of care and are not disciplinary rules. A member who violates these principles may be subject to civil penalties such as disqualification or damages; however, absent a violation of the California Rules of Professional Conduct, the State Bar Act or the rules in disciplinary cases interpreting those provisions, the member is not subject to discipline.

Thus, under the facts presented, Lawyer B is not subject to discipline under rule 3-310(E) if Lawyer B accepts the proposed representation. Nevertheless, Lawyer B and Law Firm may be subject to disqualification or other civil penalties such as damages. The remaining question is what Lawyer B should do as part of Lawyer B's broader professional responsibility.

III. Determining a Lawyer's Professional Responsibility

While the California Rules of Professional Conduct set relatively narrow standards for purposes of lawyer discipline, they are not the limit of a lawyer's professional responsibility to a client. Rule 1-100(A) recognizes that the rules are not exclusive and that lawyers have broader professional responsibilities to a client, which while not subjecting a lawyer to discipline, nevertheless advance the objectives and principles which underlie the rules.

While the imputed knowledge rule does not constitute a basis for discipline under rule 3-310(E), the Committee nevertheless believes that Lawyer B should not accept the representation in question without obtaining Client's informed written consent. Obtaining such consent may not be required pursuant to a disciplinary rule but is consistent with a lawyer's broader professional responsibility.

Under rule 3-310(E), a representation is adverse to a former client when the former client's confidential information could be used against the former client's interests during the lawyer's representation of the new client. (Woods v. Superior Court, supra, 149 Cal.App.3d at p. 934; Yorn v. Superior Court (1979) 90 Cal.App.3d 669, 675; Galbraith v. State Bar (1933) 218 Cal. 329, 332-333; see also San Diego Cty. Bar Assn. Formal Opn. No. 1987-1.) The rule helps resolve the conflict between a lawyer's duty to inform the new client of significant developments related to the lawyer's representation of the new client under rule 3-500 and Business and Professions Code section 6068 (m) and the lawyer's duty to preserve the former client's confidential information under Business and Professions Code section 6068 (e). (L.A. Cty. Bar Assn. Formal Opn. No. 463.) The rule also addresses the conflict between a lawyer's duty to use the former client's confidential information in order to represent the new client competently and the lawyer's continuing duty of loyalty to the former client with respect to that information.

Beyond the basic mechanics of the conflict of interest the rule is intended to address, there is also a broader policy consideration. The California Rules of Professional Conduct exist "to protect the public and to promote respect and confidence in the legal profession."

The imputed knowledge rule is consistent with this broader purpose. The imputed knowledge rule exists because it is difficult for a former client to know whether confidential information is being shared inside the law firm. The former client does not have the means to oversee the daily activities of lawyers in the firm in order to confirm that the former client's confidential information is not available to the lawyers who are now prosecuting a matter against the former client in which the confidential information is pertinent. While the Committee is not suggesting that lawyers would not seek to protect the former client's confidences in such situations, the absence of an effective means of oversight combined with the law firm's interest as an advocate for the current client in the adverse representation are factors that tend to undermine a former client's trust, and in turn the public's trust, in a legal system that would permit such a situation to exist without the former client's consent.

It is these very concerns which have lead California courts to apply the imputed knowledge rule. Indeed, recent decisions have reiterated the role of the imputed knowledge rule in maintaining client confidential information in order to ensure public trust in the judicial system. (Rosenfeld Construction Co. v. Superior Court, supra, 235 Cal.App.3d at p. 578; see also Cho v. Superior Court, supra, 39 Cal.App.4th at p. 125, "[n]o amount of assurances or screening procedures, no 'cone of silence' could ever convince the opposing party that the confidences would not be used to its disadvantage . . . . No one could have confidence in the integrity of a legal process in which this is permitted to occur without the parties' consent.")

At the same time, the Committee recognizes that the imputed knowledge rule as it exists in the case law may result in disqualification even if the member does not know or through the exercise of reasonable diligence could not ascertain that another lawyer in the member's law firm possess material confidential information. However, when a member knows or reasonably should know that another lawyer in the member's law firm acquired such information, the member should obtain the former client's informed written consent to the member's current representation.

CONCLUSION

In reference to the facts presented, the Committee concludes that Lawyer B should not accept the representation of the defendants in Client's lawsuit without Client's informed written consent to the member's current representation, if Lawyer B knows or through the exercise of reasonable diligence could learn about Lawyer A's prior representation of Client in connection with the lawsuit.

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.