Conflicts of Interest: Current Clients
Key Takeaways
- CRPC 1.7 and ABA MR 1.7 both bar concurrent representation that is directly adverse to another current client, or that carries a significant risk of material limitation by the lawyer's duties to another client, a former client, a third person, or the lawyer's own interests; the difference is the CONSENT formality — California ALWAYS requires informed WRITTEN consent (CRPC 1.7(b)), while ABA MR 1.7(b) requires informed consent only 'confirmed in writing.'
- California Rule 1.7(d) preserves a category of nonconsentable conflicts: a conflict is non-waivable if the lawyer cannot reasonably believe she can provide competent and diligent representation to each client, if the representation is prohibited by law, or if it involves asserting one client's claim against another client represented by the same lawyer in the same litigation — mirroring ABA MR 1.7(b)'s limits.
- California also has a UNIQUE rule, CRPC 1.7(c)/Comment, requiring written DISCLOSURE (not necessarily consent) of certain non-adverse but relationship-based circumstances — e.g., when the lawyer has a legal, business, financial, professional, or PERSONAL relationship with a party or witness in the matter; this codifies the former Rule 3-310(B) disclosure duty that has no direct ABA twin.
- Lawyer's own-interest conflicts (CRPC 1.8 series; ABA MR 1.8) cover specific transactions — business deals with clients (1.8(a)), using client information adversely (1.8(b)), gifts (1.8(c)), literary/media rights (1.8(d)), financial assistance to clients (1.8(e)), aggregate settlements (1.8(g)), limiting malpractice liability (1.8(h)), and sexual relations with clients (CRPC 1.8.10 — a flat California prohibition unless a pre-existing consensual relationship, stricter than ABA MR 1.8(j)).
- Organizational clients: CRPC 1.13 and ABA MR 1.13 provide that the lawyer represents the ENTITY, not its constituents; the lawyer must act in the entity's best interest and, on knowledge of constituent wrongdoing likely to harm the entity, generally report 'up the ladder' — but California's 1.13 omits the ABA's 'reporting out' permission tied to the financial-fraud exception California does not recognize.
A concurrent conflict of interest arises in two situations under both California Rule 1.7 and ABA Model Rule 1.7. The first is DIRECT ADVERSITY: the representation of one client will be directly adverse to another current client. This is most obvious when a lawyer would sue, or take a position directly against, someone the lawyer currently represents — even in an unrelated matter. The duty of loyalty forbids a lawyer from suing a current client; a client who pays for loyalty in matter A should not find his own lawyer attacking him in matter B.
The second situation is MATERIAL LIMITATION: there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person, or by the lawyer's own interests.
Material-limitation conflicts are subtler — for example, representing two co-defendants whose defenses may diverge, or representing a buyer and seller in the same transaction, or representing a client where the lawyer's financial or personal stake might temper the lawyer's zeal. The test is whether a disinterested lawyer would conclude that the representation should be declined, or whether the conflict will adversely affect the lawyer's independent professional judgment. The existence of a conflict is determined at the outset and monitored throughout; a conflict that develops mid-representation can require withdrawal from one or both matters.
Most conflicts are consentable. Under both rules, a lawyer may proceed despite a concurrent conflict if four conditions are met: the lawyer reasonably believes she can provide competent and diligent representation to each affected client; the representation is not prohibited by law; the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the SAME litigation or proceeding before a tribunal; and each affected client gives INFORMED CONSENT. Here lies the central California-vs-ABA divergence on conflicts.
ABA Model Rule 1.7(b)(4) requires informed consent 'confirmed in writing,' meaning the client's actual consent can be oral so long as the lawyer promptly memorializes it in a writing transmitted to the client. California Rule 1.7(b)(4) is stricter: it requires informed WRITTEN CONSENT — the client must actually sign or provide written consent, and 'informed written consent' is a defined term meaning the client's written agreement after the lawyer has communicated and explained the relevant circumstances and the material risks, including any actual and reasonably foreseeable adverse consequences.
The practical upshot for a California essay: an oral conflict waiver that the ABA would accept (if later confirmed in writing) does not satisfy California; the lawyer needs the client's informed consent IN WRITING. This same written-consent formality recurs throughout the California conflict rules and is one of the most frequently tested distinctions on the California essay.
Some conflicts cannot be cured by consent at all. Under California Rule 1.7(d) and ABA Model Rule 1.7(b), a conflict is NONCONSENTABLE when the lawyer cannot reasonably believe she will be able to provide competent and diligent representation to each affected client (an objective limit on the lawyer's own reasonable belief), when the representation is prohibited by law, or when it involves the assertion of a claim by one client against another client represented by the same lawyer in the same litigation. No amount of client sophistication or eagerness can waive these.
Separate from outright conflicts, California preserves a distinctive WRITTEN-DISCLOSURE duty that has no clean ABA analogue.
Carried forward from former Rule 3-310(B), California Rule 1.7(c) requires a lawyer to provide written DISCLOSURE (informing the client, though not necessarily obtaining consent) when the lawyer has, or knows that another lawyer in the firm has, a legal, business, financial, professional, or PERSONAL relationship with or responsibility to a party or witness in the same matter, or when the lawyer knows or reasonably should know that another party's lawyer is a spouse, parent, child, or sibling of the lawyer, lives with the lawyer, is a client of the lawyer or the lawyer's firm, or has an intimate personal relationship with the lawyer.
The point is transparency: California makes the lawyer affirmatively disclose relationship entanglements that could, even subtly, affect the representation, even where they fall short of a consent-requiring conflict.
The Rule 1.8 family addresses recurring lawyer-self-interest conflicts with bright-line requirements. Rule 1.8(a) governs business transactions with a client and acquiring an interest adverse to a client: the terms must be fair and reasonable and fully disclosed in writing in a manner the client can reasonably understand, the client must be advised in writing of the desirability of seeking independent counsel and given a reasonable opportunity to do so, and the client must give informed written consent to the essential terms and the lawyer's role.
Rule 1.8(b) bars using information relating to the representation to the client's disadvantage without consent. Rule 1.8(c) prohibits soliciting a substantial gift or preparing an instrument giving the lawyer (or the lawyer's close relatives) a substantial gift, absent a close family relationship. Rule 1.8(d) bars acquiring literary or media rights based on the representation before it concludes. Rule 1.8(e) bars providing financial assistance to a client in connection with litigation, with limited exceptions (advancing court costs and litigation expenses).
Rule 1.8(g) regulates aggregate settlements among multiple clients, requiring informed written consent after disclosure of all claims. Rule 1.8(h) restricts prospectively limiting malpractice liability and settling malpractice claims with unrepresented clients.
Most distinctively, California Rule 1.8.10 imposes a FLAT prohibition on sexual relations with a current client UNLESS a consensual sexual relationship existed between them before the lawyer-client relationship began — a categorical ban that is stricter and clearer than ABA Model Rule 1.8(j), which prohibits sexual relations unless a consensual relationship existed at the commencement of the lawyer-client relationship but is generally framed around the same pre-existing-relationship safe harbor.
Finally, Rule 1.13 establishes that a lawyer for an organization represents the ENTITY acting through its constituents; on learning of constituent conduct that violates a legal obligation to the organization or law reasonably imputable to it and likely to result in substantial injury, the lawyer must proceed as reasonably necessary in the entity's best interest, ordinarily by referring the matter UP the organizational ladder — but California's Rule 1.13, unlike the ABA's, does not authorize 'reporting out' to outside authorities, consistent with California's narrower confidentiality regime.
Consent Formalities and Key Rule 1.8 Transactions
| Situation | California | ABA Model Rule |
|---|---|---|
| Concurrent-conflict waiver | Informed WRITTEN consent (CRPC 1.7(b)) | Informed consent 'confirmed in writing' (MR 1.7(b)) |
| Business transaction with client | Fair terms, written disclosure, advise independent counsel, informed written consent (1.8(a)) | Same structure (MR 1.8(a)) |
| Relationship with party/witness | Written DISCLOSURE required (CRPC 1.7(c)) | No direct analogue |
| Sexual relations with client | Flat ban unless pre-existing consensual relationship (CRPC 1.8.10) | Ban unless relationship existed at commencement (MR 1.8(j)) |
| Entity wrongdoing | Report UP the ladder; NO reporting out (CRPC 1.13) | Report up; limited reporting OUT permitted (MR 1.13) |
Exam Hooks
- CA = informed WRITTEN consent for conflicts; ABA = informed consent confirmed in writing.
- Suing a current client (even in an unrelated matter) is direct adversity.
- CRPC 1.7(c) adds a written-disclosure duty for relationship entanglements with no ABA twin.
- CRPC 1.8.10 flatly bans lawyer-client sex absent a pre-existing relationship.
- Entity lawyer (1.13) reports UP the ladder; CA does not allow ABA-style reporting OUT.
A California lawyer wants to represent two clients with a potential conflict. She fully explains the risks, and both clients agree orally; she intends to send a confirming letter next week. Under California law, is the conflict properly waived at this point?
A lawyer currently represents Corporation X in a labor matter. An unrelated client asks the same lawyer to sue Corporation X for breach of a supply contract. Without any waiver, may the lawyer take the new case against X?