Study guide
Conflicts: Former Clients, Imputation, and Business Transactions
California Bar Exam Exam
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1 Exam Format and Core Skills
California Bar Exam Blueprint: Subjects, Components, and Recent Changes Exam Format, Scoring, and the 1390 Passing Score Essay Strategy: Issue Spotting and IRAC Core Written Skills and Timing Strategy
2 Civil Procedure
Subject Matter Jurisdiction: Federal Question, Diversity, Supplemental, Removal Personal Jurisdiction, Long-Arm, Minimum Contacts, and Service of Process Venue, Transfer, and Forum Non Conveniens The Erie Doctrine and Choice of Law Pleadings, Rule 11, Amendments, and California Demurrers / Anti-SLAPP Joinder of Claims and Parties, Impleader, Intervention, Interpleader Class Actions (Rule 23 and California) Discovery: Scope, Devices, Privilege, and Sanctions Pretrial Adjudication: Dismissals, Default, and Summary Judgment Trial, Jury, Judgment as a Matter of Law, and Post-Trial Motions Appeals, the Final Judgment Rule, and Claim/Issue Preclusion
3 Constitutional Law
Judicial Review, Justiciability, Standing, Ripeness, Mootness, and Political Questions Federal Legislative Power: Commerce, Taxing & Spending, and the Tenth and Eleventh Amendments Separation of Powers: Executive, Legislative, and Judicial Authority Federalism, Supremacy, Preemption, the Dormant Commerce Clause, and Privileges & Immunities State Action and Congressional Enforcement of the Reconstruction Amendments Procedural Due Process Substantive Due Process and Fundamental Rights Equal Protection and Levels of Scrutiny First Amendment: Speech, Press, Forums, and Association First Amendment Religion Clauses and the Takings Clause
4 Contracts
Applicable Law: Common Law vs. UCC Article 2 and Mixed Contracts Mutual Assent: Offer, Acceptance, Mailbox Rule, and UCC 2-207 Consideration, Bargained-for Exchange, and Promissory Estoppel Defenses to Formation: Capacity, Mistake, Misrepresentation, Duress, Unconscionability The Statute of Frauds Parol Evidence Rule and Contract Interpretation Conditions and Performance: Express, Constructive, and Substantial Performance Breach, Anticipatory Repudiation, and the Perfect Tender Rule Excuse of Performance: Impossibility, Impracticability, and Frustration UCC Warranties and Risk of Loss Third-Party Beneficiaries, Assignment, and Delegation Contract Remedies and UCC Buyer/Seller Remedies
5 Criminal Law and Procedure
Actus Reus, Mens Rea, Concurrence, and Causation Accomplice Liability and Parties to Crime Inchoate Crimes: Attempt, Conspiracy, and Solicitation Homicide: Murder, Manslaughter, Felony Murder, and California Degrees Other Crimes Against the Person: Assault, Battery, Kidnapping, and Sex Offenses Property and Theft Crimes: Larceny, Embezzlement, Robbery, Burglary, Arson Criminal Defenses: Insanity, Intoxication, Self-Defense, Duress, Necessity, Mistake Fourth Amendment: Searches, Seizures, Warrants, and Exceptions The Exclusionary Rule, Standing, and Fruit of the Poisonous Tree Fifth Amendment: Miranda, Self-Incrimination, and Double Jeopardy Sixth Amendment: Right to Counsel, Confrontation, Speedy Trial, and Jury Pretrial Identifications, the Eighth Amendment, and Trial Rights
6 Evidence
Relevance: Logical and Legal, Rule 403, and California Proposition 8 Policy-Based Exclusions: Subsequent Remedial Measures, Settlements, Insurance, Pleas Authentication and the Best Evidence Rule Witness Competency, Personal Knowledge, and Examination Impeachment of Witnesses Lay and Expert Opinion Testimony (Daubert and California Kelly/Sargon) Character Evidence and Other Acts (MIMIC) Habit and Methods of Proving Character Hearsay: Definition, Non-Hearsay, and Exemptions Hearsay Exceptions: Availability Immaterial (FRE 803) Hearsay Exceptions Requiring Unavailability (FRE 804) and the Confrontation Clause Privileges, Judicial Notice, and Presumptions (Federal and California)
7 Real Property
1.1 Estates in Land 1.2 Future Interests 1.3 Rule Against Perpetuities 1.4 Concurrent Ownership 1.5 Landlord-Tenant Law 1.6 Easements and Servitudes 1.7 Covenants Running with Land 1.8 Recording Acts and Title 1.9 Mortgages 1.10 Land Use Regulation Adverse Possession and Rights Incident to Ownership Land Sale Contracts, Marketable Title, and Risk of Loss Deeds, Delivery, Warranties of Title, and Fixtures
8 Torts
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9 Business Associations
Agency: Formation, Actual and Apparent Authority, and Ratification Agency: Principal/Agent Duties, Respondeat Superior, and Tort Liability General Partnerships: Formation, Rights, and Partnership Property Partnership Liability, Fiduciary Duties, Dissociation, and Dissolution Limited Partnerships, LLPs, and LLCs Corporations: Formation, Promoters, and Piercing the Corporate Veil Corporate Finance: Stock, Securities, Dividends, and Distributions Directors and Officers: Fiduciary Duties, the Business Judgment Rule, and Indemnification Shareholders, Derivative Suits, Fundamental Changes, and Federal Securities (10b-5, 16(b))
10 Community Property
General Principles, the Community Estate, and Marital Economic Community Characterization: Separate vs. Community Property and Presumptions Tracing and Commingling (Exhaustion and Direct Tracing) Transmutation and Premarital/Marital Agreements Special Assets: Businesses (Pereira/Van Camp), Goodwill, Education, Pensions, Disability Management, Control, and Spousal Fiduciary Duties Debts and Creditors' Rights Distribution at Dissolution and Death; Quasi-Community Property
11 Professional Responsibility
Regulation of the Profession, Admission, and Discipline (California Rules vs. ABA Model Rules) Competence, Diligence, Communication, and Scope of Representation Confidentiality and Its Exceptions (California vs. ABA) Conflicts of Interest: Current Clients Conflicts: Former Clients, Imputation, and Business Transactions Fees, Client Trust Accounts (IOLTA), and Safekeeping Property Duties to the Court and Third Parties: Candor, Advocacy, and Fairness Forming, Declining, and Terminating the Attorney-Client Relationship Advertising, Solicitation, and the Unauthorized Practice of Law Judicial Ethics, Reporting Misconduct, and Special Prosecutor Duties
12 Remedies
Compensatory Damages: Causation, Foreseeability, Certainty, and Mitigation Punitive, Nominal, and Liquidated Damages Restitution and Unjust Enrichment Constructive Trust and Equitable Lien Injunctions: Temporary Restraining Orders, Preliminary, and Permanent Specific Performance Reformation, Rescission, and Cancellation Equitable Defenses, Declaratory Relief, and Remedy Selection
13 Trusts
Trust Creation, Required Elements, and Types of Trusts Charitable Trusts, Cy Pres, and the Rule Against Perpetuities in Trusts Trustee Powers and Trust Administration Trustee Duties: Loyalty, Prudent Investor, and Impartiality Beneficiary Rights and Principal/Income Allocation Spendthrift, Discretionary, and Support Trusts; Creditors' Rights Modification and Termination of Trusts Breach of Trust, Remedies, and Will Substitutes (Totten, POD, Revocable Trusts)
14 Wills and Succession
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15 Performance Test
The Performance Test: Task Memo, File, and Library Objective PT Products: Memos, Briefs, and Client Letters Persuasive PT Products and 90-Minute Execution
Conflicts: Former Clients, Imputation, and Business Transactions
Key Takeaways Explain This Topic AI
CRPC 1.9 and ABA MR 1.9 protect FORMER clients: a lawyer may not, without the former client's informed written consent (CA) / informed consent confirmed in writing (ABA), represent a new client in the SAME or a SUBSTANTIALLY RELATED matter whose interests are materially adverse to the former client, and may not use or reveal the former client's confidential information to that client's disadvantage.
The 'substantial relationship' test is the heart of former-client analysis: matters are substantially related if they involve the same transaction or legal dispute, or if there is a substantial risk that confidential information normally obtained in the prior representation would materially advance the new client's position.
CRPC 1.10 and ABA MR 1.10 IMPUTE one lawyer's conflict to the whole firm; California permits screening of a personally-prohibited lawyer in defined circumstances (e.g., lawyers moving between firms) with written notice to affected clients, narrower than the ABA's screening regime in some respects and broader in others — know that California allows ethical screens to rebut imputation in many lateral-movement situations.
CRPC 1.11 / ABA MR 1.11 govern former and current GOVERNMENT lawyers (the 'revolving door'): a former government lawyer may not represent a private client in a matter in which the lawyer participated PERSONALLY AND SUBSTANTIALLY while in government, absent the agency's informed written consent; the firm may take the matter if the disqualified lawyer is timely screened and gets no fee, and notice is given.
CRPC 1.18 / ABA MR 1.18 protect PROSPECTIVE clients: even where no representation results, the lawyer who received disqualifying confidential information may not use or reveal it and may be conflicted out, though screening can avoid firm-wide imputation if the lawyer took care to limit the information learned.
Last updated: June 2026
A lawyer's duties to a client do not evaporate when the representation ends; two duties survive indefinitely — the duty of confidentiality and a residual duty of loyalty captured by Rule 1.9. California Rule 1.9 and ABA Model Rule 1.9 both provide that a lawyer who formerly represented a client in a matter shall not thereafter represent another person in the SAME or a SUBSTANTIALLY RELATED matter in which that person's interests are materially adverse to the former client, unless the former client gives informed consent — in California, informed WRITTEN consent. The doctrinal engine is the SUBSTANTIAL-RELATIONSHIP test.
Two matters are substantially related if they involve the same transaction or legal dispute, or if there is otherwise a substantial risk that confidential factual information that would normally have been obtained in the prior representation would materially advance the position of the new client in the subsequent matter. The court does not require the former client to prove what confidences were actually shared — that would force disclosure of the very secrets the rule protects. Instead, the inquiry is whether the nature of the prior work makes it reasonable to infer that relevant confidences would have been imparted.
If the matters are substantially related and the new client's interests are materially adverse, the lawyer is disqualified absent the former client's informed written consent. Rule 1.9 also independently bars the lawyer from USING information relating to the former representation to the former client's disadvantage, or REVEALING it, except as the rules otherwise permit.
Conflicts are not confined to the individual lawyer. California Rule 1.10 and ABA Model Rule 1.10 impute one lawyer's conflict to every other lawyer in the same firm: while lawyers are associated in a firm, none of them may knowingly represent a client when any one of them practicing alone would be prohibited by Rules 1.7 or 1.9. This vicarious-disqualification principle reflects the reality that lawyers in a firm share information, files, and economic incentives. The central qualifier is the ethical SCREEN (sometimes called a 'Chinese wall').
When a lawyer moves from one firm to another and the lawyer acquired protected information at the old firm that would conflict the new firm out of a matter, both California Rule 1.10 and the ABA Model Rules permit the new firm to avoid imputed disqualification by timely SCREENING the personally-prohibited lawyer from any participation in the matter, ensuring that lawyer is apportioned no part of the fee from the matter, and giving prompt written notice to any affected former client so that compliance can be monitored.
California has long recognized screening in the lateral-hire and government-lawyer contexts, and the renumbered Rule 1.10 codifies screening procedures. The screen must be erected promptly — before the conflicted lawyer can share information — and must include physical, electronic, and procedural barriers. A defective or late screen does not cure imputed disqualification.
Imputation also reaches former-client conflicts when a lawyer leaves a firm: the firm is no longer barred from a matter adverse to the departed lawyer's former client unless the matter is the same or substantially related and a remaining lawyer retains protected information about it.
Lawyers who move between government service and private practice face a specialized conflicts regime in California Rule 1.11 and ABA Model Rule 1.11. A FORMER government lawyer is subject to Rules 1.9(c) (confidentiality and use of information) and, in addition, may NOT represent a private client in connection with a matter in which the lawyer PARTICIPATED PERSONALLY AND SUBSTANTIALLY as a public officer or employee, unless the appropriate government agency gives its informed written consent. 'Personal and substantial' participation is a higher bar than mere awareness — it means the lawyer was actively and directly involved.
When such a former government lawyer is personally disqualified, the lawyer's new firm may still undertake the representation if the disqualified lawyer is timely SCREENED from participation, receives NO part of the fee from the matter, and the appropriate government agency receives prompt written notice. This 'screen plus no fee plus notice' mechanism allows firms to hire former government lawyers without being disqualified en masse.
The rule runs the other direction too: a CURRENT government lawyer may not participate in a matter in which the lawyer participated personally and substantially while in private practice, and must observe Rules 1.7 and 1.9. Rule 1.11 also restricts a former government lawyer from using confidential government information about a person, acquired while in government service, to that person's material disadvantage in private practice. The policy is to prevent both the appearance and the reality of lawyers exploiting public office for private gain, while not making former public servants unemployable.
A person who consults a lawyer about possibly forming a relationship is a PROSPECTIVE client, protected by California Rule 1.18 and ABA Model Rule 1.18 even if no engagement ever results. The lawyer who has had such a consultation may not use or reveal information learned in the consultation, subject to the same protections as a former client under Rule 1.9. More consequentially, the lawyer may be DISQUALIFIED: a lawyer who received information from a prospective client that could be significantly harmful to that person in a matter may not represent a client with materially adverse interests in the same or a substantially related matter.
Crucially, this personal disqualification is IMPUTED to the firm — but the firm can avoid imputed disqualification in two ways: by obtaining informed written consent from both the affected client and the prospective client, OR by showing that the disqualified lawyer took reasonable measures to AVOID exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client, and then timely screening the disqualified lawyer (with no fee from the matter) and giving written notice to the prospective client.
The practical lesson is to limit the intake interview: a lawyer doing an initial consult should gather only enough to run a conflicts check and decide whether to take the matter, because the more confidential detail the lawyer absorbs, the greater the risk of disqualification. Throughout all of these former-client, imputation, government, and prospective-client rules, California's narrower confidentiality regime (Section 6068(e) and Rule 1.6) supplies the background obligation: the lawyer must guard the protected information at every peril, which is why screening, no-fee, and notice requirements exist to keep information walled off.
Conflict Rules Beyond Current Clients
Rule Who/What It Protects Cure / Screen Available?
CRPC 1.9 / MR 1.9 Former client; same or substantially related + materially adverse Former client's informed written consent (CA)
CRPC 1.10 / MR 1.10 Imputes conflict firm-wide Screen + no fee + written notice (lateral moves)
CRPC 1.11 / MR 1.11 Government revolving door; personal & substantial participation Agency informed written consent; or screen + no fee + notice
CRPC 1.18 / MR 1.18 Prospective client (consultation, no engagement) Both consents; OR limited info + screen + no fee + notice
- Exam Hooks
- Rule 1.9 hinges on 'same or substantially related' + 'materially adverse.'
Substantial relationship = substantial risk prior confidences would advance the new client.
Screening (timely + no fee + written notice) can rebut imputation in lateral & government moves.
Rule 1.11 disqualifies on PERSONAL AND SUBSTANTIAL government participation.
Limit the intake interview — Rule 1.18 disqualification grows with information absorbed.