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Ethics Byte

Client relationships have limited shelf life

By Diane Karpman

Diane KarpmanMaybe we should blame television for planting these weird ideas in clients’ minds. Sometimes those pesky clients think that they own you forever, even after they terminate the relationship (even after decades have gone by). In future litigation, not at all related to the original case, they will try to play a "disqualification card" to get a great lawyer (you) out of the case.

Let’s consider some important criteria for disqualification motions. The first and probably the most important consideration is whether you are dealing with a current or former client. Current clients are owed a duty of loyalty and a duty of confidentiality. Former clients are owed only a duty of confidentiality.

When addressing former client conflicts (or successive representations), the courts are required to engage in a fact‑specific analysis, including the application of the substantial relationship test. Recent cases demonstrate that the courts are narrowing that doctrine. It’s no longer a knee-jerk reaction.

These cases are following a natural evolution. It is inherent in the profession that lawyers initially go to work for one side, and then sometimes (often because of their increased knowledge in a specific field) cross over to the other side. If the substantial relationship test is applied in a hard-and-fast manner, it would be very difficult for attorneys to ever be able to work in legal areas where they have special knowledge and expertise (nobody would).

In Khani v. Ford Motor Company, Judge Norman Epstein clearly explained how the test is applied. In Khani, the lawyer worked for Ford between 2004 and 2007, defending Ford in 150 cases, and a Ford dealer under the Song-Beverly Consumer Warranty Act (aka lemon law). When he moved to private practice, he represented plaintiffs suing Ford for lemon law violations.

Ford moved for disqualification because the lawyer was "privy to confidential client communications and information relating to the defense of" such cases, and was exposed to "pre-litigation strategies, tactics and case handling procedures." This is known as "playbook," which California courts routinely reject, but nevertheless consider.

A major factor that was not relevant in Khani was the quality of the relationship with the client. If it is a direct relationship, the client need not prove that the lawyer possesses confidential information. However, if the lawyer was only briefly involved on the periphery, no presumptions arise. This is known as the Peripheral Representation Exception.

In Khani, the trial court presumed that all lemon law cases raise the same issues and granted the motion. (Kudos to the lawyer for taking this one up on appeal.) The substantial relationship theory requires a consideration of the subject matter, facts, and issues. They must be related in some material manner to the new case. General generic information about a former client’s overall structure and policies would not require disqualification, unless it was material – i.e., directly at issue or of critical importance in the second case. Farris v. Fireman’s Fund Ins. Co. (2004) 119 Cal. App. 4th 671, 680.

There are probably thousands of lawyers who defend lemon law claims against Ford. Ford failed to show any policies, practices or procedures that would be at issue in this case. Conclusionary general declarations were simply insufficient.

Further, clients cannot have a "lifetime prohibition against representation adverse to a former client" (Farris, at p. 680). Those would run afoul of State Bar Rule 1-500, which prohibits restrictions on a member’s practice. That principle is almost universally adopted in the United States. If this mythic lifetime prohibition existed, we would have but one major or primary client in our entire career. Obviously, that’s not going to work, so this balancing process is important.

Now, on a completely different subject. There is some talk in the ethics sphere that LinkedIn, with endorsements that are similar to testimonials, raises some ethics considerations. I am not a user, but I am suddenly being inundated with invitations. Other lawyers are reporting a recent change. They claim the program has obtained their entire contact list and is unilaterally sending messages to their contacts.

LinkedIn has also been the victim of meddlers. Someone pretending to be John Sculley, the former CEO of Apple, sent out hundreds of contact requests. An advertising copywriter created a profile for George Bluth Sr. (a fictional character on the television show “Arrested Development”). Obviously, your "endorsement" becomes meaningless if you support fictional personalities. As a lawyer, your contact list may be one of your most valuable possessions. Don't be cavalier and recommend "characters."

Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at