When can a California lawyer continue to jointly represent multiple clients whose interests potentially or actually conflict after obtaining informed written consent?

Plain-English summary

The opinion analyzes California Rule 1.7(d), which was added when California adopted the rule-numbering and structure of the ABA Model Rules in 2018. Rule 1.7(a) and (b) generally permit joint representation of clients with conflicting interests where each affected client gives informed written consent. Rule 1.7(d) then identifies three situations where written consent is insufficient: the lawyer's "reasonable belief" that competent and diligent representation is possible (d)(1); representations prohibited by law (d)(2); and one client's assertion of a claim against another client in the same litigation or tribunal proceeding (d)(3).

The committee analyzes two hypotheticals involving a driver and a passenger who sue a third-party defendant after a collision. In hypothetical 1, the defendant is 100 percent at fault and Driver has no exposure, so the lawyer may obtain new written consent to also pursue Passenger's claim against Driver's underinsured-motorist insurance carrier. Here Rule 1.7(d)(1) is satisfied because the lawyer can reasonably believe in competent representation of both clients, and 1.7(d)(3) is satisfied because Passenger has no claim against Driver to assert in any tribunal.

In hypothetical 2, Driver is partially at fault and a lawsuit has been filed. Pre-filing, joint representation with informed written consent is permissible. Once Passenger's claim against Driver is to be litigated in the tribunal proceeding, however, Rule 1.7(d)(3) prohibits the joint representation regardless of consent. The opinion grounds this conclusion in Klemm v. Superior Court (1977) 75 Cal.App.3d 893, which the committee treats as the foundation for 1.7(d)(3) (see Comment [8]).

In practice

The opinion holds that, under California Rule 1.7 as adopted in 2018, joint representation of clients with potential or actual conflicts requires informed written consent under 1.7(a) and (b), plus compliance with all three sub-conditions of 1.7(d). The committee identifies (d)(3), the assertion-of-a-claim bar, as a non-consentable conflict that requires the lawyer to withdraw or decline once one client's claim would be asserted against another in the same tribunal.

Common questions

Q: I represent a driver and passenger after a car accident. Can I keep representing both if the passenger wants to make a claim against the driver?

A: Per the opinion, pre-litigation you may continue with informed written consent. Once a lawsuit is filed and the passenger's claim against the driver would be presented to the tribunal, Rule 1.7(d)(3) bars the joint representation regardless of consent. The opinion applies Klemm v. Superior Court to this scenario.

Q: Does mediation count as a "tribunal" for purposes of Rule 1.7(d)(3)?

A: No, per Rule 1.0.1(m) as quoted in the opinion. The opinion notes the definition "excludes mediation because a decision that results from a mediator's actions is voluntary to the parties." Arbitrators, administrative law judges, and special masters whose decisions can bind the parties are tribunals.

Q: Is a potential conflict the same as a hypothetical conflict for purposes of disclosure?

A: No, per the opinion. The opinion adopts the Havasu Lakeshore Investments distinction: a potential conflict is "a reasonable likelihood an actual conflict will arise," while a hypothetical conflict is too speculative to require disclosure. Whenever a potential conflict exists, written informed consent is required.

Q: What does "reasonably believes" mean under Rule 1.7(d)(1)?

A: Per the opinion, applying Rule 1.0.1(i), the lawyer must subjectively believe in their ability to provide competent and diligent representation, and that belief must be objectively reasonable under all the facts and circumstances.

Q: How does Rule 1.7(d) differ from former Rule 3-310(C)?

A: The opinion treats Rules 1.7(a) and (b) as continuations of former Rule 3-310(C)(1) and (2). Rule 1.7(d) adds the three express limitations that were less explicit under the prior rule, codifying outcomes that California courts (notably Klemm) had already reached.

Background and rules framework

The opinion interprets California Rule 1.7, which mirrors the Model Rule 1.7 structure adopted in November 2018. Rule 1.7(a) addresses concurrent representation directly adverse to another current client. Rule 1.7(b) addresses material limitation conflicts arising from the lawyer's other clients, former clients, third persons, or the lawyer's own interests. Rule 1.7(d) makes informed written consent insufficient in three identified situations. The opinion also draws on Bus. & Prof. Code section 6131, which prohibits a former prosecutor from representing an accused in a related civil action against the government, as an example of a representation "prohibited by law" under 1.7(d)(2).

Citations and references

Rules of Professional Conduct:

• California Rule of Professional Conduct 1.7(a), (b), (d) (current conflicts)
• California Rule of Professional Conduct 1.0.1(e), (e-1), (h), (i), (m) (definitions of informed consent, reasonably believes, tribunal)
• California Rule of Professional Conduct 1.8.7 (aggregate settlement)
• Former California Rule 3-310(C)(1) and (2)

Statutes:

• Bus. & Prof. Code section 6131 (former prosecutors)

Cases:

• Klemm v. Superior Court, 75 Cal.App.3d 893 (1977), joint representation in uncontested matter permissible; per se bar where one client's interests adverse at hearing
• People ex rel. Dept. of Corps. v. SpeeDee Oil Change Systems, Inc., 20 Cal.4th 1135 (1999), ethical considerations override choice of counsel
• In the Matter of Sklar, 2 Cal. State Bar Ct. Rptr. 602 (Rev. Dept. 1993), failure to obtain informed written consent in driver/passenger joint representation
• In the Matter of Respondent K, 2 Cal. State Bar Ct. Rptr. 335 (Rev. Dept. 1993), consent standards
• Spindle v. Chubb/Pacific Indem. Group, 89 Cal.App.3d 706 (1979), no actual conflict defeats joint-representation challenge
• State Comp. v. Drobot, 192 F. Supp. 3d 1080 (C.D. Cal. 2016), preserving public trust over right to counsel of choice
• Havasu Lakeshore Investments, LLC v. Fleming, 217 Cal.App.4th 770 (2013), potential vs hypothetical conflict
• Carroll v. Superior Court, 101 Cal.App.4th 1423 (2002), potential conflict definition in dependency context

See also

• No sibling opinions yet indexed.

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010545