Ethics

In re Muscle Improvement.  Key passages:

Rule 3-310(E) applies principally to a lawyer's actual engagements for separate clients with possibly differing interests. In this case, Ms. Naimi was not retained to represent the debtors. Nonetheless, because of the initial consultation, Ms. Naimi is now subject to disqualification from representing Allstate, another party in interest.

Under California rules, the relationship of attorney and client is established prima facie at the time of preliminary consultations with a view toward retention, even if actual retention does not materialize. Id.; Perkins v. West Coast Lumber Co., 129 Cal. 427, 429 (1900).

In considering whether a representation was one in which an attorney would ordinarily acquire confidential information, a court must consider the nature and extent of the attorney's involvement with the former client. See H.F. Ahmanson & Co. v. Salomon Bros., Inc.,

 229 Cal. App. 3d 1445, 1455 (1991). 

As an initial matter, a court must presume that an attorney acquired confidential information if the attorney gave legal advice to the client. See Jessen, 111 Cal. App. 4th 698 at 709-10. Absent such a showing, a court must look at whether the attorney was in such a position vis-a-vis the former client that the attorney was likely to receive confidential information. See id. at 710-11.

In this case, the substantial relationship test is clearly met. First, Ms. Naimi consulted with debtors with respect to the same case in which she is now representing Allstate, the principal creditor. Furthermore, the subject matter is essentially the same as the case before the court, and thus is substantially related.