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The concept of client loyalty is a central feature of the attorney-client relationship and a basic tenet in American jurisprudence. But, do lawyers owe a duty of loyalty to former clients? In other words, is there a residual duty of fidelity that continues after termination of the attorney-client relationship that is distinguishable from the duty to protect a former client’s confidential information? If so, how does that duty compare to the loyalty obligation owed to current clients? After all, lawyers commonly take positions against former clients and represent clients in matters that are directly adverse to former clients. A lawyer, for example, may sue a former client and may represent a direct competitor against a former client. A lawyer may also oppose a former client and do things apart from the lawyer’s law practice that are plainly antagonistic to a former client.
The extent to which an attorney’s past representation of a client affects the attorney’s ability to represent a different client, or take positions adverse to a former client, raises complicated questions in the field of legal ethics. Most rules, ethics opinions and authorities on former client conflicts focus on the lawyer’s duty to safeguard confidential client information acquired as a result of representing the client under the governing “substantial relationship” test. Yet, there is law in California and elsewhere confirming that a limited duty of loyalty also continues in force after the attorney-client relationship has ended.
One way to evaluate whether a lawyer’s proposed representation of a new client, or the lawyer’s separate business or personal affairs, will violate a limited duty of loyalty to a former client is to consider the following questions:
1. How is the duty of loyalty defined?
A lawyer’s duty of loyalty to a client is mentioned but is not defined in the rules of professional conduct. The nature of a lawyer’s duty of loyalty to a client has traditionally been expressed broadly in case law. Justice Joseph Story wrote in 1824 in a case involving adverse interests between an attorney’s current and former clients: “An attorney is bound to disclose to his client every adverse retainer, and even every prior retainer, which may affect the discretion of the latter. No man can be supposed to be indifferent to the knowledge of facts that work directly against his interests, or bear on the freedom of his choice of counsel. When a client employs an attorney, he has a right to presume, if the latter be silent on the point, that he has no engagements that interfere, in any degree, with his exclusive devotion to the cause confided to him; that he has no interest that may betray his judgment or endanger his fidelity.” Other courts have expressed a similar notion: “It is the undoubted duty of an attorney to communicate to his client whatever information he obtains that may affect the interests of his clients in respect to the matters entrusted to him.”
California has articulated a common law duty of loyalty to clients that goes beyond the scope of the Rules of Professional Conduct. According to the California Supreme Court “The most fundamental quality of the attorney-client relationship is the absolute and complete fidelity owed by the attorney to his or her client.” “It is an attorney’s duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter’s free and intelligent consent. By virtue of this rule an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client’s interests.”
An attorney’s duty of loyalty to an existing client is not generally capable of being divided. A lawyer must represent the client’s interests without being influenced by the lawyer’s personal or financial interests or the interests of other clients or third parties. The primary purpose of the duty of loyalty is to encourage public confidence in the integrity of the legal profession. The duty of loyalty is, therefore, the primary value at stake in conflict of interest situations involving current clients. However, loyalty is also embedded in concepts of competence, communication and confidentiality that make up the fiduciary relationship between lawyer and client.
2. What duties are owed to former clients?
Under California law, an attorney is precluded from doing either of two things after concluding the relationship with a client. The attorney may not do anything which will injuriously affect the former client in any matter in which the attorney formerly represented the client, nor may the attorney at any time use against the former client knowledge or information acquired by virtue of the previous relationship.
Case law in other jurisdictions also suggest that the duty to former clients is not limited solely to protecting the former client’s confidences but includes a loyalty component as well.
The attorney’s duty of confidentiality, of course, continues after termination of the attorney-client relationship. Thus, a lawyer may not use or disclose confidential client information to the disadvantage of a former client. In California, absent informed written consent, a lawyer may not accept employment adverse to a client or former client where the attorney possesses confidential client information material to the employment. Under the ABA Model Rules, a lawyer who has formerly represented a client in a matter, or whose present or former firm has formerly represented a client in a matter, shall not thereafter (i) use information relating to the representation to the disadvantage of the former client except as the rules permit or require with respect to a client, or when the information has become generally known; or (ii) reveal information relating to the representation except as the rules permit or require with respect to a client. Both California and the ABA rules regulate the use as well as the disclosure of confidential client information and apply whether or not a subsequent representation is involved. For example, a lawyer who represents a client in a well-publicized case may not write an article concerning the attorney’s experiences in the case without the former client’s consent.
ABA Rule 1.9(c) applies even if it was the lawyer’s former firm, rather than the individual lawyer, that represented the former client. However, California Rule 3-310(E) does not apply when a lawyer undertakes representation of a new client in a matter which is adverse to a former client of the lawyer’s law firm. Instead, a lawyer practicing in California must look to California case law concerning the lawyer’s “broader professional responsibility” to the former client in that situation.
Actual use or disclosure of confidential client information is not required to trigger the rule in California. Rule 3-310(E) is violated if there is a substantial risk that information protected by California Rule 3-100 and Business and Professions Code § 6068(e) would be used or disclosed in a subsequent representation or adverse employment in a manner that is contrary to the former client’s interests and without the former client’s consent. 
3. Do the ethics rules recognize a limited duty of loyalty to former clients?
ABA Model Rule 1.9(a) (“duties to former clients”) addresses both a duty to avoid being disloyal to a former client with respect to the work the lawyer performed for the former client as well as the duty to protect the former client’s confidential information. Model Rule 1.9(a) provides: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.” Rule 1.9(a) precludes, for example, a lawyer from seeking to rescind on behalf of a new client a contract the lawyer drafted on behalf of a former client. The rule would also apply to a lawyer who had prosecuted an accused person and thereafter sought to represent the accused in a subsequent civil action against the government concerning the same matter. A lawyer who had represented multiple clients in a matter could not thereafter represent one of the clients against the others in the same or substantially related matter after a dispute arose among the clients in that matter unless all affected clients gave informed consent.
The Restatement of The Law Governing Lawyers recognizes the same dual obligations to former clients. Section 132 deals with a representation adverse to the interests of a former client and provides: “Unless both the affected present and former clients consent to the representation under the limitations and conditions provided in § 122 (client consent to a conflict of interest), a lawyer who has represented a client in a matter may not thereafter represent another client in the same or a substantially related matter in which the interests of the former clients are materially adverse. The current matter is substantially related to the earlier matter if (1) the current matter involves the work a lawyer performed for the former client; or (2) there is a substantial risk that representation of the present client will involve the use of information acquired in the course of representing the former client, unless that information has become generally known.”
California’s current rule does not address both of these duties; indeed, California Rule 3-310(E) speaks only to accepting employment adverse to a former client where the client has obtained confidential information in representing the former client that is material to the current employment. California’s proposed Rule 1.9, however, expressly recognizes both duties of loyalty and confidentiality.
4. How narrow is the duty of loyalty to former clients?
The law is not entirely clear, particularly in California, on the scope of the obligation of loyalty to former clients. According to the Restatement, three types of former-client conflicts are prohibited without the affected client’s consent: (i) switching sides in the same matter, (ii) attacking a lawyer’s own former work, and (iii) situations where a “substantial relationship” test applies to protect confidential information of a former client.
Representing a client on one side of a legal matter and then switching to represent the other side in the same matter is viewed as violating the lawyer’s duty of loyalty to the first client as well as jeopardizing that client’s confidential information. Just as a lawyer may not represent both sides concurrently in the same matter, the rule preventing “side switching” precludes the lawyer from representing both sides consecutively. Factors to consider include whether the lawyer’s representation is in the same “matter” or is in a matter that is substantially related to the lawyer’s representation of a former client and the nature and degree of the lawyer’s involvement in that matter. The scope of a “matter” will depend on the facts of a particular case or transaction. The lawyer’s involvement in the matter can also be a question of degree. Lawyers may be able to avoid the application of this rule by limiting the scope of the lawyer’s representation at the outset of the representation.
Apart from side switching in the same matter, the obligation of loyalty to former clients also applies to subsequent matters that involve the work the lawyer performed for the former client.
For example, a lawyer may not on behalf of a later client attack the validity of a contract the lawyer drafted for the former client if doing so would adversely affect the former client. Nor may a lawyer later claim that a patent the lawyer had prosecuted to issuance infringes on another patent if doing so would be adverse to the interests of the former client with respect to the very work the lawyer was hired to perform for that client.
Some commentators argue that the obligation of loyalty to a former client should be limited solely to situations that involve a direct attack on the lawyer’s own work. According to Professor Wolfram, limiting the loyalty obligation to the “attack one’s own work” prohibition, properly relegates the former client conflict analysis to the substantial relationship test and the protection of the former client’s confidential information. The reasons justifying the loyalty obligation to attacking one’s own work are that (i) the former client would be denied the benefit of the very work for which the former client had retained the lawyer, (ii) the lawyer’s attack on her own work would reduce the value of the work for which the lawyer had received fees and (iii) from the new client’s perspective, the lawyer would have an incentive to “pull her punches” in soft pedaling an attack on her prior work for a former client in the same or a substantially related matter.
5. Have courts distinguished the limited duty of loyalty to former clients from the broader duty of confidentiality?
The narrow duty of loyalty and the much broader duty of confidentiality are not easily distinguishable in the cases applying these concepts. The duties clearly overlap, and it is rare to find a case where confidential information acquired in the course of a prior representation was not relevant to the later representation. Most cases that involve the court’s consideration of a lawyer’s residual duty of loyalty to a former client also involve issues of confidentiality.
A recent example of a case in which the court articulates the residual duty of loyalty owed to a former client but then bases its decision on the possible misuse of that client’s confidential information is Oasis West Realty, LLC v. Goldman. In that case, Goldman represented Oasis in an effort to obtain approval of a redevelopment project from the Beverly Hills City Council. According to the complaint, Goldman was hired because of his reputation and experience in developing projects in Beverly Hills and for his influence with the city council. The complaint alleged that Goldman became intimately involved in the formation of the planned development for the property and the strategy for securing the necessary approvals and entitlements from the city.
Two years after Goldman terminated his relationship with Oasis, he allegedly lent his support to a group of citizens involved in opposing the project, including campaigning for and soliciting signatures for a petition to overturn the city council’s approval of the project and attending a city council meeting to oppose certain requirements for obtaining sufficient signatures on the petition. After the voters upheld the city council’s approval by a narrow margin, Oasis sued Goldman and his law firm for breach of fiduciary duty, professional negligence and breach of contract. Goldman and his firm filed a special motion to strike the complaint under California’s anti-SLAPP statute, contending that Oasis’ complaint arose from Goldman’s acts in furtherance of his right of petition or free speech in connection with a public issue. The California Supreme Court reversed the Court of Appeals, which had upheld the application of the anti-SLAPP statute, by concluding that Oasis had demonstrated a probability of prevailing on its claims against its former attorneys.
The court confirmed that the fiduciary obligations of loyalty and confidentiality continue in force even after the representation of a client had ended, citing Wutchumna Water Co. v. Bailey and its progeny. The court then found that Oasis had proffered sufficient evidence to support a permissible inference that Goldman had used Oasis confidential and proprietary information in formulating his opposition and soliciting neighbors to join him in opposing the project.
The court rejected the argument that the duties to former clients outlined in Wutchumna Water Co. v. Bailey were overly broad and should apply only where (i) the attorney has undertaken a concurrent or successive representation that is substantially related to the prior representation and is adverse to the former client, or (ii) the attorney has disclosed confidential client information. The court said: “It is well established that the duties of loyalty and confidentiality bar an attorney not only from using a former client’s confidential information in the course of ‘making decisions when representing a client,’ but also from ‘taking information significantly into account in framing a course of action’ such as ‘deciding when to make a personal investment’ – even though, in the latter circumstance, no second client exists and no confidences are actually disclosed,” citing Restatement Third, Law Governing Lawyers § 60, Comment c(i).
6. Doesn’t the First Amendment protect an attorney’s right of free speech in speaking out on public issues that are adverse to a former client in the same or substantially related matter?
The remarkable aspect of the California Supreme Court’s decision in Oasis is the court’s application of the duties of loyalty and confidentiality to a former client in a case where the attorney took a personal position on controversial issues of public interest that were adverse to the former client in the same matter. The court held that a lawyer’s right of freedom of expression is modified by his duties to his former clients, citing Restatement Third, Law Governing Lawyers, § 125, Comment (e) – “the requirement that a lawyer not misuse a client’s confidential information (see section 60) similarly applies to discussion of public issues.” Interestingly, the court did not refer to Restatement § 132 (or ABA Model 1.9(a)) which limit these duties to matters involving the subsequent representation of another client in the same or substantively related matter in which the interest in the former client are materially adverse. At the same time, prohibiting the use of a former client’s confidential information in regard to the lawyer’s own business or personal affairs is not new. For example, a lawyer who learns in confidence that a client is planning to renew the lease on a building that the client occupies and then later obtains the lease on the lawyer’s own account has committed a disciplinable violation.
7. Does the residual duty of loyalty apply to in-house counsel who accept employment adverse to the former company?
When an in-house lawyer moves to a new company that is a competitor of his former employer, the in-house counsel has similar ethical obligations that limit his ability to handle matters adverse to the former company. As in the case of outside counsel, an in-house lawyer may not undertake representation adverse to his former employer in the same or substantially related matter absent the former employer’s consent. However, an in-house lawyer does not, for purposes of Rule 1.9(a), represent the corporate client in all legal matters that arise during the lawyer’s employment. According to ABA Formal Opinion 99-415, in-house counsel personally represents the company for purposes of the rule only when the lawyer is directly involved in the matter or when the lawyer engages in a type of supervision that results in access to material information concerning the matter. In-house counsel is also prohibited under ABA Model Rule 1.9(c) from using the former employer’s protected information that is not generally known as well as disclosing such information even if counsel’s new employment is not adverse to the former client or the current work is not substantially related to the prior employment.
8. Can a conflict based on the narrow duty of loyalty owed to a former client be resolved by an ethical wall?
A non-consensual ethical wall would not resolve a former client’s conflict of interest based on the residual duty of loyalty under ABA Model Rule 1.9(a) – unless the conflict arose out of the lawyer’s association with a prior law firm. Even then, an ethical wall would be permitted only in a handful of states under the current version of ABA Model Rule 1.10 on imputation of conflicts of interest.
Screening would also not be sufficient to cure a former client conflict based on the residual duty of loyalty under California case law absent client consent. Screening would also not be available if the lawyer had represented the former client at the lawyer’s current firm, absent the client’s informed consent.
 Mark L. Tuft is a partner with Cooper, White & Cooper, LLP in San Francisco, CA and an adjunct professor at the University of San Francisco School of Law. Mr. Tuft represents lawyers and law firms in matters involving legal ethics and professional liability. He is a co-author of the California Practice Guide on Professional Responsibility published by The Rutter Group, a Division of West, a Thomson Reuters business. He is also a certified specialist in legal malpractice law and a vice chair of the California Rules Revision Commission. I wish to acknowledge the assistance I received from John D. Sorenson, a second year student at the University of San Francisco School of Law, in writing this paper.  Wolfram, Modern Legal Ethics 316 (1986) – “The principle of loyalty of lawyer to client is a basic tenet of the Anglo-American conception of the client-lawyer relationship”; and see Kaufman, Problems in Professional Responsibility 38 (3d ed. 1989) — “What we mean when we say a lawyer owes ‘a duty of loyalty’ to a client is at the core of our notion of what kind of adversary system we have.”  Charles W. Wolfram, Former Client Conflicts, 10 Georgetown Journal of Legal Ethics, 677, 687-688(1997); see, e.g., Johnson v. Superior Court (Johnson), 159 Cal. App. 3d 573 (1984) – lawyer was permitted to represent a mother in a child support action against her former husband despite having represented both spouses in family business matters and in the sale of their home; Fremont Indemnity Co. v. Fremont General Corp., 143 Cal.App.4th 50, 66-70 (2006) – law firm was not disqualified from representing parent corporation and one of its subsidiaries in defense of an action brought by another subsidiary despite the fact the law firm had represented the parent and both subsidiaries for years in various unrelated matters.  See Flatt v. Superior. Court (Daniel) 94 Cal. 4th 275, 283 (1994)—”[w]here the potential conflict is one that arises from the successive representation of clients with potentially adverse interests, the courts have recognized that the chief fiduciary value jeopardized is that of client confidentiality. Thus where a former client seeks to have a previous attorney disqualified from serving as counsel to a successive client in litigation adverse to the interests of the first client, the governing test requires that the client demonstrate a “substantial relationship” between the subjects of the antecedent and current representation.” (Italics in original).  Conflict of interest rules involving current clients seek to protect client loyalty but do not provide a definition. See ABA Model Rule 1.7(a), California Rule 3-310(C) and see Rest. 3d Law Governing Lawyers (ALI 2000) §121 and Comment b. For example, ABA Model Rule 1.7 Comment  states that “[l]oyalty and independent judgment are essential elements in the lawyer’s relationship to his client.” Comment  states that “loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed consent.” California Business and Professions Code §6068(e)(1) has elements of both loyalty and confidentiality: “It is the duty of an attorney…[t]o maintain inviolate the confidence and at every peril to himself or herself to preserve the secrets of his or her client.” Williams v. Reed, 29 F. Cas. 1386, 1390 (C.C. Maine 1824). Rice v. Perl, 320 N.W. 2d 407, 410 (Minn. 1982) (citing Selover v. Hedwall, 149 Minn. 302, 306; 184 N.W. 180 (1921), in turn citing Baker v. Humphrey, 101 U.S. 494, 501 (1879)). Flatt v. Superior Court, supra, 9 Cal. 4th at 289; and see, California State Bar Formal Opinion 1984-83. Santa Clara County Counsel Attys. Ass’n v. Woodside, 7 Cal 4th 525, 548 (1994); quoting from Anderson v. Eaton, 211 Cal 113, 116; 293 P. 788 (1930). Flatt v. Superior Court,supra, 9 Cal 4th at 282; Rest. 3d Law Governing Lawyers § 121, Comment b – “. . . the law seeks to assure clients that their lawyers will represent them with undivided loyalty. A client is entitled to be represented by a lawyer whom the client can trust.” Andersonv. Eaton, supra, 211 Cal. at 116-117; and see, Los Angeles Bar Ass’n Formal Opinion 435 (1985). Jeffry v. Pounds, 67 Cal. App. 3d 6, 10-11 (1977).  The duty of loyalty also includes the obligation to act with reasonable diligence on behalf of a client. The ABA treats diligence as a duty separate from the duty of competence (presumably because a competent lawyer can still neglect a client’s matter). ABA Model Rule 1.3. California, on the other hand, treats the obligation to act with reasonable diligence as an element of the duty of competence. California Rule 3-110(B). Whether it is considered an element of competence or a separate duty, a lawyer must act with commitment and dedication to the interest of the client and with zeal in advocacy on the client’s behalf. ABA Model Rule 1.3, Comment (1); and see proposed California Rule 1.1, Comment (2).  Oasis West Realty, LLC v. Goldman 51 Cal. 4th 811, 821 (2011) – the fiduciary duties of loyalty and confidentiality continue in force even after the representation has ended; Wutchumna Water Co. v. Bailey 216 Cal. 564, 573-574 (1932) – courts will protect a client’s legitimate expectation of loyalty to preserve the effective functioning of the fiduciary relationship which depends on the client’s trust and confidence in counsel; People ex rel. Deukmejian v. Brown 29 Cal. 3d 150, 155 (1981) – the same duties apply to government lawyers; Yorn v. Superior Court (Hesemeyer) 90 Cal. App. 3d 669, 675 (1979) – these duties also apply to retained criminal defense counsel; In re Boone, 83 F. 944, 952-953 (N.D. CA 1897) – attorney who had assisted in establishing the validity of his client’s patents and who later claimed in a subsequent suit involving the same patents that the decree establishing the validity of the patents had been obtained by fraud was subject to disbarment for willful breach of his professional obligations. Brennan’s Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168, 172 (5th Cir. 1979); In re American Airlines, Inc., 972 F.2d 605 (5th Cir. 1992); In re Banks, 584 P.2d 284, 292-94 (Or. 1978) – a lawyer who represented a corporation and its constituent in drafting a contract between them could not later represent the constituent against the corporation in a suit involving interpretation of the contract; Wink, Inc. v. Wink Threading Studio, Inc., 2011 WL 3206915 (E.D. Va. 2000). Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811, 823 (2011); Rest. 3d Law Governing Lawyers § 60, Comment (c)(i) (a lawyer’s duty to safeguard confidential client information).  California Rule 3-310(E).  ABA Model Rule 1.9(c).  Los Angeles County Bar Association formal opinion 403 (1983).  California State Bar Formal Opinion 1998-152. California’s proposed Rule 1.9, which is awaiting approval by the California Supreme Court, tracks Model Rule 1.9 and, if adopted, would solve this problem. Galbraith v. State Bar, 218 Cal. 329, 333 (1933) – attorney who defended client in a DUI criminal action could not thereafter represent the injured party in a civil action against the former client; American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal.App.4th 1017, 1040-1041(2002) – lawyer for American Airlines who volunteered to be a Fed. R. Civ. P. 30(b)(6) witness on behalf of an aircraft broker in an action against the manufacturer of airplanes purchased by American and the plaintiff violated California Rule 3-310(E) by unreasonably risking the use or disclosure of American’s relevant confidential information, resulting in civil liability to the attorney and his firm; and see Restatement 3d Law Governing Lawyers § 60.  ABA Model Rule 1.9, Comment . California’s Proposed Rule 1.9 also recognizes that paragraph (a) addresses both duties of loyalty and confidentiality to former clients; and see Rotunda and Dzienkowski, Legal Ethics, Law. Deskbk. Prof. Resp. § 1.9-1(b) (2011-2012 ed.).  California Proposed Rule 1.9(a) and Comments (1)-(7).  Rest. 3d Law Governing Lawyers § 132, Comment d.  Rest. 3d, supra, § 132, Comment d(i); Rotunda and Dzienkowski, supra, note 22, § 1.9(b)(2).  See ABA Model Rule 1.2(c) (limiting the scope of representation).  Rest. 3d, supra, § 132, Comment d(ii); and see Wolfram, supra, note 3, at 696-702.  Wolfram, supra, note 3, at 696-702.  Wolfram, supra, note 3, at 697-701.  Wolfram, supra, note 3, at 696-701.  51 Cal.4th 811 (2011).  California Code of Civil Procedure § 425.16; SLAPP is an acronym for “strategic lawsuit against public participation.”  See note 14. Oasis West Realty LLC v. Goldman, supra, 51 Cal.4th at 822 – “In light of the undisputed facts that Goldman agreed to represent Oasis in securing approvals for the project, acquired confidential information from Oasis during the course of the representation, and then decided to publicly oppose the very project that was the subject of the prior representation, it is reasonable to infer that he (used Oasis’ confidential information).” Oasis West Realty LLC v. Goldman, supra, 51 Cal.4th at 823. The court distinguished its decision in Santa Clara County Attys. Assn. v. Woodside, 7 Cal.4th 525 (1994), in which the court had upheld the right of attorneys employed in the public sector to exercise their right to sue their public agency employer to resolve a wage and other conditions of employment dispute, by stating that in Woodside the attorneys did not violate their duty of loyalty because the suit did not involve matters in which the attorneys represented their employer.  Rotunda and Dzienkowski, supra, note 22; § 1.9-1(b)(5); 505-506 § Rest. 3d, supra § 60.  See ABA Formal Opinion 99-415.  Currently only 13 states have adopted a rule similar to the current ABA full screening rule. 12 other states have adopted rules permitting lateral screening where the personally disqualified lawyer was not substantially involved in the prior matter at the lawyer’s former firm. 26 states, including California, do not have a lateral screening rule.  Kirk v. First American Title Ins. Co. 183 Cal.App. 4th 776 (2010) – non-consensual screening is not available to a personally disqualified attorney joining a new firm who had “switched sides” or had been substantially involved in the prior matter; Henriksen v. Great American Savings & Loan Assn., 11 Cal.App. 4th 109 (1998); see California Rule 3-310(A) on what constitutes informed written consent in California.  Concat LP v. Unilever, PLC, 350 F.Supp.2d 796 (N.D. CA 2004).