The Practice of Systematically "conflicting Out" Potential Opposing Attorneys Has Negative Ethical and Legal Implications and Should Be Deterred
| Publication year | 2019 |
| Author | Jill Hersh, CFLS |
Jill Hersh, CFLS1
Jill Hersh has been a member of the Bar since 1978. She is the managing attorney for the Hersh FamilyLaw Practice, a trial and appellate family law firm. She is a fellow of the International Academy of Family Lawyers and the American Academy of Matrimonial Lawyers and is the 2006 recipient of the CLAY award for her work in Family Law. Jill is a Certified Family Law Specialist whose firm specializes in complex family law matters, ranging from complex and high asset matters to same-sex and high conflict parenting disputes. Jill has argued before the Supreme Courts of California and Vermont and was the lead trial and appellate lawyer in the published appellate decisions, In Re Guardianship of Olivia J and Marriage of de Guigne, and the published Supreme Court decisions, Estate of MacDonaldand K.M. v. E.G. She has written articles and is an instructional speaker in Family Law and serves as a private and pro tem settlement judge.
have noticed a proliferation of instances in which a potential client has been unable to find an attorney of her/his choice "in county" because virtually "everyone" has been "conflicted out" by her/his spouse. This precludes the potential client's ability to find a suitable lawyer in her/his county of residence, creates unnecessary and added duress finding counsel, and also deprives attorneys of clients. In some instances, this may constitute interference with access to counsel if a hearing date is imminent.2
The purpose of this article is to explore the current ethical and legal environment surrounding the formation of the attorney/client relationship and the attempt to disrupt the other party's ability to form that relationship.
This article is not intended to challenge the entitlement of a potential consumer of legal services to interview several attorneys to obtain information or determine her/his choice of counsel. It is intended to challenge the legitimacy of the opposing party's rights and conduct when such a critical mass of attorneys has been conflicted out that it gives the appearance of bad faith on the part of the opposing party. For example, I recently was contacted by a potential client who called 19 attorneys in her county and found that all of them were "conflicted out" and could not speak with her. The attorney whom her spouse eventually did hire was not one of those 19 and not located in their county of residence.
Attorneys generally advise against contesting Motions to Disqualify because of the attendant costs and delay. Perhaps this advice is also given because lawyers usually do not have a very thorough understanding of the actual law underlying the questions: "Who is a true 'prospective client?'" and "Has privilege actually attached?" We should rethink this under suspicious circumstances. It would be a potential deterrent to this bad faith behavior if we conducted targeted discovery (at our own cost), before deciding whether or not to withdraw or oppose the motion. It may even amount to sanctionable conduct should discovery disclose a pattern of behavior sufficiently egregious to constitute a breach of fiduciary duty—perhaps of a magnitude to constitute extrinsic fraud.
Based upon a review ofthe law, Rules of Professional Conduct, ethics opinions, and judicial policy statements on this issue, I have concluded the following:
- A person who consults an attorney when it is not a good faith consultation "for the purpose" of potentially engaging that attorney's services is not protected by the attorney/client privilege because she/he is not a "prospective client".
- The attorney(s) who is(are) consulted for these bad faith ulterior reasons has not received confidential information because the interview was not "for the purpose" of potential engagement, and that attorney should not be "conflicted out" of representing the opposing party.
- An attorney who advises a client to conduct interviews of potential opposing counsel for the ulterior purpose of "conflicting out" those attorneys commits a reportable State Bar violation.
- An individual who conducts the interviews for the ulterior purpose of "conflicting out" an attorney and then brings a motion to disqualify that attorney may be sanctioned for a breach of fiduciary duty.
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Evidence Code section 951 defines a "client" for the purpose of establishing the attorney/client privilege, and states: "A..."client" means a person who directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal services or advice from him in his professional capacity... " (emphasis added)
This language is consistent with new Rules of Professional Conduct, rule 1.18, which went into effect November 1, 2018, entitled "Duties to Prospective Client". Rule 1.18 defines a "prospective client" for purposes of regulating attorney conduct respecting duties of loyalty and confidentiality. The text of the Rule integrates the Evidence Code's codified standard for imbuing a person with the rights and protections of a "prospective client" by integrating "for the purpose of", stating: "(a) A person who, directly or through authorized representation, consults a lawyer for the purpose of retaining the lawyer or seeking legal services or advice from the lawyer in the lawyer's professional capacities, is a prospective client. (emphasis added)
However, the State Bar, giving expression to ABA policy,3 excludes from protection those persons who consult an attorney with an ulterior purpose. State Bar Comment [2] to Rule 1.18 states:
...not all persons who communicate information to a lawyer are entitled to protection under this rule." A person "who communicates information to a lawyer without a good faith intention to seek legal advice or representation, is not a 'prospective client' within the meaning of Paragraph (a).4
An attorney who suborns a client's bad faith consultations in order to disqualify particular attorneys violates State Bar Rule 8.4, "Misconduct", effective November 1, 2018, which in part states:
It is professional misconduct for a lawyer to
(a) violate these rules or the State Bar Act, knowingly assist, solicit, or induce another to do so, or do so through the acts of another,...
(c) engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation,
(d) engage in conduct that is prejudicial to the administration of justice.
Earlier policy statements by the courts and from ethics opinions in other jurisdictions having the same or similar rules for misconduct provide guidance in this area. The summary of these policy statements and ethics opinions is that efforts to disqualify professionals from opposing parties are forms of fraud, deceit, or misrepresentation that interfere with the administration of justice. This bad faith conduct vitiates the attempt to form an attorney/client relationship, thus freeing the professional to go forth as counsel for the opposing party.
The court, in Kenney v. Superior Court,5 was asked to...
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