Ethics Opinions from the Bar Association of San Francisco
INFORMAL OPINION 1973-6
An attorney may represent a woman in a personal injury action against her husband and his insurance carrier, even though the attorney previously defended the husband in a Vehicle Code violation arising from the same accident. But if the attorney obtained confidential information in his prior relationship, he must obtain his former client's consent.
The attorney represented his daughter's husband in connection with the Vehicle Code violation. Subsequent to such representation the opinion in Brown vs. Merlo, _Cal 3d , Sup. 106 Cal. Rptr. 388 was published which case, in the opinion of the attorney, allowed his daughter a cause of Action which was previously barred by Section 17158 of the California Vehicle Code-the so-called "Guest Statute".
It is the daughter's desire that the inquiring attorney represent her in an action against her husband for damages resulting from the accident. The attorney seeks an advisory opinion as to whether he may perform the requested legal services.
Rule 5 of the Rules of Professional Conduct adopted by the State Bar of California states:
Rule 5 thus does not prohibit employment adverse to either a present or former client respecting matters unrelated to confidential information, with or without the consent of such client or former client. Surely in the situation here presented, the attorney could obtain the consent of his former client or decline the proffered employment.
No opinion was sought and none is given as to the propriety of undertaking the employment in these circumstances in which the decision in Brown vs. Merlo (supra) may impose a burden upon the daughter and her husband to withstand a claim of collusive action, but the issue is raised only to call it to the attention of the attorney.
All opinions of the Committee are subject to the following disclaimer:
In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.