Legal Question in Family Law in California

Based on what you have provided, it is a potential conflict of interest. You are not clear on whether your husband is adverse to you right now. If he sues you for divorce, or legal separation using this lawyer, it will have developed into an actual conflict of interest. You can either then consent to his representation of your husband in writing, or refuse to waive the conflict and file a motion to disqualify him as your husband's attorney.

Mr. Roach has a very simplistic view of conflicts. He really needs to take more care to know the law before he answers questions like this. One phone consultation eleven years ago during a separation that did not ripen into a divorce is probably not be grounds for disqualification at all. The law of conflicts and disqualification is a lot more complicated than Mr. Roach would have you think. In one case I handled for the San Francisco PUC, the former General Counsel of the PUC was a partner in the firm suing the PUC. He had been General Counsel at the time the contract that was the subject of the lawsuit was entered into, he was General Counsel during prior litigation over the awarding of the contract in which the same firm sued to be awarded the contract, and his time sheets showed him reviewing documents pertaining to the dispute that resulted in the second lawsuit that I was handling. He then contacted the General Manager of the PUC about the case. We sought to have the firm disqualified, and we lost. The court ruled that he had not obtained any confidential client information while General Counsel that would give them an advantage in the case, and that the contractor's right to its choice of counsel outweighed any conflict issues based on client loyalty theories. That is a very simplified summary of the basis for the decision, but it should be enough to show you that just talking to an attorney over a decade ago is not likely to be any basis for disqualification.

The irritating thing about Mr. McCormick is that he has practiced law so long, yet answers questions on this site relying on from the hip legal advice that has nothing to do with your question, or the law.

California Rules of Professional Conduct, rule 3-310 subd. (C) is pretty clear on the matter. I quote it here verbatim:

"C) A member shall not, without the informed written consent of each client:

(1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or

(2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or

(3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter."

Subdivision E governs conflicts with former clients.

"(E) A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment."

There is no cooling off period for 10 years as set forth by Mr. McCormick. His anecdote has nothing to do with the situation you presented, which involves individual clients.

That comes from the ethics rules that govern all attorneys, including Mr. McCormick. As you can see from the text of the rule, my response is well supported. Unlike Mr. McCormick, I have not lost any prior motions to disqualify opposing counsel, and have a sample of an actual motion to disqualify, if you need one.