San Diego County Bar Association Ethics Series
On June 8, Procopio’s Carole J. Buckner will present the first in a series of MCLE sessions sponsored by the San Diego County Bar Association on Navigating the Changes to the Rules of Professional Responsibility. Session One of the four-part series will address the new ethics rules pertaining to the attorney client relationship, including rules regarding attorney’s fees, confidentiality and conflicts of interest. Many important changes have been made to the new rules, which will be effective on November 1, 2018.
The program will walk lawyers through the changes at a practical nuts-and-bolts level. Among the rules Carole will be discussing changes to the rules governing conflicts of interest, including concurrent client conflicts, former clients and imputation of conflicts, including the new rule regarding ethical screening.
The California rules are moving in the direction of the ABA Model Rules, with some significant omissions and deviations. The new rules have been renumbered to correspond to the ABA Model Rule numbering scheme. The new numbering scheme will also make research across states easier when attorneys seek guidance regarding the application and interpretation of California’s new rules. In general, the rules are expanded to include more detailed comments which provide guidance for lawyers, similar to the ABA Model Rules.
Concurrent Client Conflicts
Among the key changes to the conflict of interest rules, under proposed Rule 1.7 (formerly part of California’s Rule 3-310), concurrent client conflicts of interest will now be assessed under the “material limitation” standard. Under this test, a conflict of interest will exist where there is a significant risk that the lawyer’s work is materially limited by relationships with another client, a former client, a third person, or the lawyer’s own personal interests. Included with the new Rule 1.7 are many helpful comments. Comment  addresses the viability of advanced consents to conflicts of interest, which will turn on the client’s understanding of the risks presented by an advanced consent.
Former Client Conflicts
California will now have a separate rule, Rule 1.9, (formerly part of California’s Rule 3-310) to address former client conflicts and the new rule incorporates the “substantial relationship” test already applicable in California through the case law. In determining a whether a former representation is substantially related to a current representation such that an informed written consent will be required, two key factors will be critical: whether the matters involve the same work, transactions or litigation, or whether confidential information obtained in the prior matter would be material in the current matter.
Imputation and Screening
At the upcoming presentation, Carole will also be discussing the new Rule 1.10, which addresses imputation of conflicts on interest. This is an entirely new rule for California lawyers. Previously these topics were only covered through California case law. The rule provides that conflicts of interest under Rule 1.7 and 1.9 are imputed, that is when one lawyer in a firm would be prohibited from the representation, those conflicts are imputed to all lawyers associated in the same firm. Personal conflicts of interest are not imputed unless such interests result in a material limitation. The rule also allows for screening to resolve conflicts of interest where the lawyer screened did not substantially participate in the matter, the screening is timely, and a written notice of screening is provided to the affected former client. Government lawyers are addressed by a separate new Rule 1.11.
Carole is General Counsel and a Partner at Procopio, Cory Hargreaves in San Diego. She is member of the San Diego County Bar Association’s Legal Ethics Committee. Carole advises lawyers and law firms, and serves as an expert witness.
Learn more about the SDCBA presentation registration here.