Friday, December 21, 2018
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Client Impliedly Consented to Law Firm’s Conflict—C.A.
Opinion Says State Bar Rule Requiring Assent in Writing Does Not Preclude Denial of Motion for Disqualification; Best, Best & Krieger Remains in Case
By a MetNews Staff Writer
The requirement in the Rules of Professional Conduct that a client’s waiver of a conflict be in writing does not bar a court from declining to disqualify a law firm based on a waiver implied from conduct, the Fifth District Court of Appeal held yesterday, affirming an order that permits Best, Best & Krieger, LLP to remain as counsel in a case it has been involved in for 14 years.
Its client in the case is Los Angeles County Water District No. 40. At the time it began its representation of the district in 2004—in what are known as the consolidated “Antelope Valley Groundwater Adjudication” cases—it was also representing the Antelope Valley—East Kern Water Agency (“AVEK”) in unrelated matters. Best, Best & Krieger (BB&K) acted as its general counsel from 1987 until January 2016.
AVEK became involved in the litigation in 2006, and was represented by lawyers outside of BB&K.
In 2016, in parting company with BB&K, and with the litigation nearing an end, AVEK demanded that the firm recuse itself. It declined; AVEK moved for its disqualification; retired Santa Clara Superior Court Judge Jack Komar, sitting on assignment to the Los Angeles Superior Court, denied the motion, finding that the water district would be prejudiced if BB&K were removed as its counsel.
Ethics Rule
On appeal, AVEK insisted that the lack of written consent to the conflict, required by Rule 3-310 (supplanted by Rule 1.7, as of Nov. 1) rendered disqualification mandatory.
Acting Presiding Justice Rosendo Peña responded:
“AVEK argues that, notwithstanding the trial court’s finding AVEK consented to BB&K’s representation of District No. 40 (with full knowledge of all the relevant circumstances while being represented and counseled by an independent law firm) and reaped the benefits thereof for 10 years, AVEK was entitled to wait until a time of its choosing and nevertheless have its disqualification motion granted because there was no written consent by AVEK as contemplated by California Rules of Professional Conduct, former rule 3–310….Certainly, numerous cases have cited the lack of written consent under former rule 3–310 when concluding the client’s disqualification motion should be granted….However, we are cited no authority holding that, when a client by his conduct manifests an informed consent to concurrent representation of an adverse party, the absence of a writing complying with former rule 3–310 is dispositive (and any other form of consent is irrelevant) when considering a motion to disqualify the attorney.”
Informed Decision
He went on to say:
“[W]here there is substantial evidence supporting the factual determination that the client made an informed decision to agree to a law firm’s concurrent representation of themselves as well as another client with potentially adverse interests, no authority precludes a court from denying a subsequent motion to disqualify that attorney based on implied consent or holds (as AVEK contends) that the absence of a written confirmation of that consent is dispositive….Where a party’s course of conduct under all of the circumstances reflects a knowing, informed choice to permit continued concurrent representation notwithstanding potential or actual adverse interests, we conclude that requiring a writing as the sine qua non of effective consent would celebrate literalism and elevate form over substance to the detriment of substantial justice for the other parties.”
The decision came in Antelope Valley Groundwater Cases, F078517.
James J. Banks of the Sacramento law firm of Banks & Watson represented AVEK. Teamed as lawyers on appeal for the water district were Deputy Los Angeles County Counsel Warren R. Wellen, Eric L. Garner, Jeffrey V. Dunn and Wendy Y. Wang of Best Best & Krieger, Timothy T. Coates of Greines, Martin, Stein & Richland.
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