RULES OF PROFESSIONAL CONDUCT
14 CURRENT RULES 2023
An asterisk (*) identifies a word or phrase defined in rule 1.0.1
indicating that direct adversity exists between the
clients, the lawyer must obtain further informed
written consent* of the clients under paragraph (a).
[3] In State Farm Mutual Automobile Insurance
Company v. Federal Insurance Company (1999) 72
Cal.App.4th 1422 [86 Cal.Rptr.2d 20], the court held
that paragraph (C)(3) of predecessor rule 3-310 was
violated when a lawyer, retained by an insurer to
defend one suit, and while that suit was still pending,
filed a direct action against the same insurer in an
unrelated action without securing the insurer’s
consent. Notwithstanding State Farm, paragraph (a)
does not apply with respect to the relationship
between an insurer and a lawyer when, in each
matter, the insurer’s interest is only as an indemnity
provider and not as a direct party to the action.
[4] Even where there is no direct adversity, a
conflict of interest requiring informed written
consent* under paragraph (b) exists if there is a
significant risk that a lawyer’s ability to consider,
recommend or carry out an appropriate course of
action for the client will be materially limited as a
result of the lawyer’s other responsibilities, interests,
or relationships, whether legal, business, financial,
professional, or personal. For example, a lawyer’s
obligations to two or more clients in the same matter,
such as several individuals seeking to form a joint
venture, may materially limit the lawyer’s ability to
recommend or advocate all possible positions that
each might take because of the lawyer’s duty of
loyalty to the other clients. The risk is that the lawyer
may not be able to offer alternatives that would
otherwise be available to each of the clients. The
mere possibility of subsequent harm does not itself
require disclosure and informed written consent.*
The critical questions are the likelihood that a
difference in interests exists or will eventuate and, if it
does, whether it will materially interfere with the
lawyer’s independent professional judgment in
considering alternatives or foreclose courses of action
that reasonably* should be pursued on behalf of each
client. The risk that the lawyer’s representation may
be materially limited may also arise from present or
past relationships between the lawyer, or another
member of the lawyer’s firm*, with a party, a witness,
or another person* who may be affected substantially
by the resolution of the matter.
[5] Paragraph (c) requires written* disclosure of any
of the specified relationships even if there is not a
significant risk the relationship will materially limit the
lawyer’s representation of the client. However, if the
particular circumstances present a significant risk the
relationship will materially limit the lawyer’s
representation of the client, informed written
consent* is required under paragraph (b).
[6] Ordinarily paragraphs (a) and (b) will not require
informed written consent* simply because a lawyer
takes inconsistent legal positions in different
tribunals* at different times on behalf of different
clients. Advocating a legal position on behalf of a
client that might create precedent adverse to the
interests of another client represented by a lawyer in
an unrelated matter is not sufficient, standing alone,
to create a conflict of interest requiring informed
written consent.* Informed written consent* may be
required, however, if there is a significant risk that: (i)
the lawyer may temper the lawyer’s advocacy on
behalf of one client out of concern about creating
precedent adverse to the interest of another client; or
(ii) the lawyer’s action on behalf of one client will
materially limit the lawyer’s effectiveness in
representing another client in a different case, for
example, when a decision favoring one client will
create a precedent likely to seriously weaken the
position taken on behalf of the other client. Factors
relevant in determining whether the clients’ informed
written consent* is required include: the courts and
jurisdictions where the different cases are pending,
whether a ruling in one case would have a
precedential effect on the other case, whether the
legal question is substantive or procedural, the
temporal relationship between the matters, the
significance of the legal question to the immediate
and long-term interests of the clients involved, and
the clients’ reasonable* expectations in retaining the
lawyer.
[7] Other rules and laws may preclude the
disclosures necessary to obtain the informed written
consent* or provide the information required to
permit representation under this rule. (See, e.g., Bus.
& Prof. Code, § 6068, subd. (e)(1) and rule 1.6.) If
such disclosure is precluded, representation subject to
paragraph (a), (b), or (c) of this rule is likewise
precluded.
[8] Paragraph (d) imposes conditions that must be
satisfied even if informed written consent* is
obtained as required by paragraphs (a) or (b) or the
lawyer has informed the client in writing* as required
by paragraph (c). There are some matters in which
the conflicts are such that even informed written