There are overlaps and differences among conflicts of interest, disqualification, joint clients, and divergence. Lawyers and judges often mix up the legal principles. We can help you prepare a joint client disclosure or a conflict of interest consent. We frequently explain to State Bar investigators, why an order of disqualification has little bearing on an allegation of conflict of interest.
Conflicts of Interest
An actual conflict of interest occurs when your advocacy for one client detracts from your advocacy for another client. Most conflicts can be waived by the clients, though the process can be cumbersome.
A potential conflict of interest does not occur because we can conjure up hypothetical situations in which two more clients may clash. There has to be a more tangible likelihood, such as, drawing up a lease for both the landlord and tenant who have agreed upon terms; or a driver & passenger making claims against the other driver in an intersection collision.
California requires a written consent to accept or continue representation. A one liner won't do.
Unlike the high standard of proof for a conflict of interest, attorneys can be disqualified from representing a client if there is a "substantial relationship" with a former client matter. Once the past attorney client relationship is proven, little or no actual proof is required; conclusive presumptions can disqualify the attorney, then the attorney’s entire firm.
The tests are different in concurrent client matters than cases against past clients. Ethical screens can work but not in all cases.
Civil vs Disciplinary consequences
Although an attorney has been disqualified, there is no automatic disciplinary result. In the disciplinary case, actual proof of the conflict is required. And since the DQ occurred in the client matter, the findings from the civil case do not automatically transfer to the State Bar case. On the other hand, a DQ order precludes an attorney from further work on the client matter. A conflict of interest can be a defense to a suit for fees, and many fee arbitrators have problems distinguishing between DQ and conflicts.