X and Y (allegedly) run a murderous drug ring. X flees to Hong Kong, Y is indicted and tried. Y's lawyer, L, employs the empty-chair defense: X did it. Hung jury; Y walks. X is later caught; pending extradition, he decides to hire a lawyer and, sensibly, asks for L, who knows the case and did well for Y.
L flies to Hong Kong, meets with X, and explains that she blamed him for everything as her defense in Y's trial. He gets a transcript of the trial--with her blaming him--and reads it, to see how she did. He retains her, paying $200K up front in a retainer agreement that provides for return of $150K if she is disqualifed in the matter. X and L later have a falling out, and X sues to get his money back.
Surprisingly, in my view, he does. The court in this opinion (Download A111844.pdf) argues that L violated Cal. R. Prof. Conduct 3-310, which requires that conflict waivers be in writing. The court does not dispute the trial court findings that (i) L disclosed the conflict; (ii) X understood the disclosure (including by reading the transcripts); and (iii) the conflict contingency built into the fee agreement did not materialize. The court also agrees that insubstantial rule violations do not support forfeiture, and that the purpose of the writing requirement is to ensure that the client's waiver was informed, which, not to belabor the point, the trial court found X's waiver was.
So why does L owe X $200K? Because the writing requirement is not trivial. Why is the requirement not trivial? Because the conflict went to the heart of the representation. Assume that is right. That means X's waiver had better be informed. But it was; the court does not deny that. So why is the violation material? The court does not say.
(It is not clear to me that this is such a serious conflict in the first place. L proposes to argue factually inconsistent defenses at different trials of different defendants. So what? Is there a consistency obligation I am missing here? How is the prosecution going to get before the jury her arguments in the last trial? I can see why L can't repeat the empty-chair defense and point the finger at former client Y, but is there more to it than that? Perhaps I am just ignorant on this point.)
I favor the general rule that faithless conduct implies forfeiture. Lying to the client about the previous representation, or downplaying the fact that L pointed the finger at X, would have been faithless. But that is not what happened, and the requirement of papering the disclosure is, on these facts, not material.
Reprimand counsel, if you want, but forfeiture should be reserved for faithless conduct, and this was not.
DM