California, United States of America
The following excerpt is from Jogani v. Jogani, B257750 (Cal. App. 2015):
client's right to rely on the confidentiality of communications with his or her former counsel. The rule in such cases is that disqualification of the attorney is required, but only if there is "'a "substantial relationship"'" between the former and the current representations, which gives rise to a presumption that confidential communications passed between them. (In re Charlisse C., supra, 45 Cal.4th at p. 161, quoting Flatt v. Superior Court (1994) 9 Cal.4th 275, 283.)
But the values at stake, and the standards for attorney disqualification, are different when there has been a concurrent representation of clients with conflicting interests. "In simultaneous representation cases, '[t]he primary value at stake . . . is the attorney's dutyand the client's legitimate expectationof loyalty, rather than confidentiality.'" (In re Charlisse C., supra, 45 Cal.4th at p. 160, quoting Flatt v. Superior Court, supra, 9 Cal.4th at p. 284.) The ethical duty not to disclose client confidences and the attorney-client evidentiary privilege both arise from the law's need to encourage clients to disclose to their attorneys all pertinent information, and the concomitant need to protect that disclosure. But the duty not to represent conflicting interests arises not just from the need for confidentiality of attorney-client communications, but also from the fiduciary nature of the attorney-client relationship itself. Clients repose confidence in their attorneys beyond merely engaging in confidential communications; they also rely on their attorney's continuing loyalty to their cause.
The rule against concurrent representation of conflicting interests therefore rests on both of these factors. Because conflicts threatening the duty of loyalty are so seriousand because the rules protecting attorney-client communications do not protect against violations of the duty of loyalty"'[w]ith few exceptions, disqualification [in a case of simultaneous representation] follows automatically,'" without any showing that the client's confidential communications are at risk. (In re Charlisse C., supra, 45 Cal.4th at p. 160, quoting People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1147.) "The principle precluding representing an interest adverse to those of a current client is based not on any concern with the
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