Wendy L. Patrick
Wendy is a California lawyer, past chair and advisor of the California State Bar Ethics Committee (Committee on Professional Responsibility and Conduct), and past chair of the San Diego County Bar Association Legal Ethics Committee. Any opinions expressed here are her own, and do not reflect that of her employer. This article does not constitute legal advice.
One of the most anxiety-riddled words for a busy lawyer juggling an existing caseload while onboarding new clients is "conflict." Raising the specter of competing interests and divided loyalties is a surefire way to capture the attention of any lawyer, because duties to clients are paramount. Yet in a world where lawyers switch firms frequently, building a portfolio rather than settling down in one place for a career, the question of conflict is common. Fortunately, case law interpreting current rules of professional conduct continues to shed light as a practical matter on how to determine whether a conflict exists.
Contact is not automatically conflict
In the recent (2026) case of Munger Hortifrut North America v. Dan Drake Enterprises (Munger), a company that was embroiled in ongoing litigation sought to disqualify the law firm of opposing counsel after an associate who had previously taken part in two depositions switched firms to briefly join the law firm representing the opposing party in the case. Regarding investment of time, the associate had logged slightly more than 21 hours on the case, but her new position at the firm of the opposition focused on unrelated areas of law and was in a different office. When the new law firm learned about the potential conflict, they promptly executed measures to prevent any contact or information exchange between the new associate and the litigation team. Further, they ended up terminating her within 10 days.
The Superior Court of Kern County reviewing the facts denied a disqualification motion. It found no evidence the associate had shared confidential information with the attorneys in the new firm or had any substantive communication with the litigation team after joining the firm. The court also cited the immediate steps the firm took to isolate the associate, including erecting an ethical screen, and concluded there was no disclosure of confidential information.
The California Court of Appeal, Fifth Appellate District, incorporating the current California Rules of Professional Conduct, held that after the associate was terminated, disqualification of the entire firm would only be required if attorneys who remained at the firm were in possession of material, confidential information derived from the associate's prior representation of the opposing party. Because the appellate court agreed with the trial court's finding that no such information had been disclosed, it affirmed the order denying disqualification.
Professional and ethical duties addressing potential conflict of interest
Like other cases with factual bases incorporating the practical reality of lawyers switching firms, Munger sets forth a realistic pattern of conduct, within which the court discussed applicable California Professional Rules of Conduct regarding conflict of interest.
Rule 1.9 Duties to Former Clients in paragraph (a), among other proscriptions, prohibits a lawyer who has formerly represented a client in a matter from representing another "in the same or a substantially related matter" where interests are materially adverse. Paragraph (b) prohibits a lawyer from knowingly representing someone "in the same or a substantially related matter" where the lawyer's former firm had previously represented a client with material adverse interests, and where the lawyer acquired information protected by California Business and Professions Code section 6068 (e)(1) and rule 1.6 (both regarding confidentiality) that is material to the matter. Informed written consent are exceptions to these provisions. Relatedly, rule 1.8.2 Use of Current Client's Information, prohibits a lawyer from using a client's information protected by Business and Professions Code section 6068 (e)(1) "to the disadvantage of the client" without informed consent. The comment to rule 1.8.2 describes this type of use as a violation of the duty of loyalty lawyers owe to their clients.
In addition to rule 1.9, considering the frequency with which modern lawyers switch firms over the years, lawyers and law firm managing partners are also wise to consider rule 1.7 Conflict of Interest: Current Clients, which in paragraph (a), prohibits lawyers from representing clients in circumstances where the representation is "directly adverse" to another of the lawyer's client in the same or a separate matter. There are exceptions and caveats within rule 1.7 as in the other conflict of interest rules which should be considered generally as well.
Proactive practical pointers
Particularly with large law firms spanning different jurisdictions, hiring lawyers from other firms requires diligent screening. This involves active engagement between the lawyers themselves, as well as the managing partners and supervisors at the law firms in question. (See rule 5.1 Responsibilities of Managerial and Supervisory Lawyers and rule 5.2 Responsibilities of a Subordinate Lawyer).
Munger is a reminder that such hiring is possible with sufficient investigation exercising due diligence regarding the extent of the attorney's involvement with the now adverse client, combined with careful ethical screening protocol consistent with the California Rules of Professional Conduct conflict rules, as well as the California Business and Professions Code.
Munger provides useful guidance on the limits of imputed conflicts with lateral hires, as well as the types of settings and circumstances where diligent screening procedures may be effective. A few important takeaways, particularly in a jurisdiction where lateral hires are common: ask questions early and often and have a list of common questions modeled after the relevant ethical rules at the ready, because they will be relevant in every case. In this fashion, lawyers and law firms can greatly increase the chances of providing conflict-free representation that is engaging, effective and ethical.