My Advocate, Not My Adversary

Can your lawyer simultaneously represent your adversary? In a word, no, unless you and the adversary both consent.

A recent case, Cal West Nurseries, Inc. v. Superior Court, considered whether a law firm that represents "Client" in a lawsuit against "Adversary", could subsequently start representing Adversary in unrelated litigation involving other parties. When Client learned of its lawyers appearance in another matter on behalf of Adversary, Client (understandably) objected. The law firm then attempted to only partially withdraw from representation of Client on certain claims that might involve Adversary.

Not so fast, the Court said. Every client is entitled to the undivided loyalty of his or her lawyer and, absent informed written consent, the lawyer does not have the ability to compromise that loyalty by abandoning the client . Simultaneously representing both Client and Adversary, even in separate and unrelated matters, can reasonably cause both Client and Adversary to question the loyalty of the lawyers.

Absent informed written consent, a lawyer may not concurrently represent clients who have actual or potential conflicts; nor may a lawyer represent one client against another in an unrelated matter. It is immaterial whether the lawyer possesses confidential information that could be misused to the prejudice of either client. "The primary value at stake in cases of simultaneous or dual representation is the attorney's duty - and the client's legitimate expectation - of loyalty, rather than confidentiality. Thus, the rule prohibiting concurrent representation of adverse interests is a per se or 'automatic' one."