State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
While Attorney serves as a director of a corporation ("Corporation"), Client approaches Attorney with a proposal for a transaction with Corporation. Client wants to present the proposal to Corporation and asks the attorney to represent it in connection with structuring the proposal and negotiating and drafting an agreement between Client and Corporation. Corporation is regularly represented by other counsel in connection with such transactions. What ethical considerations must Attorney address as she decides whether she can or should accept representation of Client?
As long as she remains on the Corporation's board, the attorney is ethically bound to perform her fiduciary duties to Corporation in her capacity as director regardless of whether Corporation is her "client." The breadth of those fiduciary duties makes a conflict of interest virtually unavoidable, but unless Corporation is also the attorney's client, the scope of those duties and the issue of what constitutes adequate consent by Corporation are governed by corporate law rather than by the California Rules of Professional Conduct.
Whether or not an attorney-client relationship arises, the attorney/director has an ethical duty to restrict her communications with Corporation as necessary to comply with rule 2-100.
If Corporation is deemed the attorney's client for any purpose, and if the attorney participates in board deliberations or voting relating to the transaction, the attorney has independent duties to obtain the informed written consent of both Corporation and Client to the conflicting representation under rule 3-310(C)(1) (if a conflict is only potential) or rule 3-310(C)(2) (if the conflict is actual). If Corporation is deemed attorney's client, rule 3-310(E) may apply even if attorney recuses herself from such board deliberations and voting.
The attorney must also give written disclosure to Client of her relationship to Corporation whether or not Corporation is also her client. (Rule 3-310(B).)
The nature of any conflict or adversity between Client and Corporation may be such that the attorney must withdraw from any joint representation notwithstanding the parties' willingness to give written consent.
Rules 2-100 and 3-310 of the California Rules of Professional Conduct.
Business and Professions Code section 6068, subdivision (e).
Corporations Code section 309, subdivision (a).
Rule 2-100 states in pertinent part:
(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.
(B) For purposes of this rule, a "party" includes:
(1) An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership . . . .
In considering whether to accept representation of Client, the attorney in the above-described fact situation should anticipate that she will be precluded from communicating directly or indirectly with any officer, director or managing agent of Corporation about the subject of her representation of Client, because Corporation is represented by other counsel in that matter. This means that, lacking consent of Corporation's counsel, the attorney must exclude herself from all board and board committee deliberations and from votes on matters pertaining to the transaction with respect to which she represents Client. Rule 2- 100's prohibition applies even though the communication might not be initiated by the attorney.
Rule 2-100 does not preclude the attorney from communicating with officers, directors and managing agents of the Corporation about subjects not relating to the attorney's representation of Client. However, the nature of the transaction in which the attorney represents Client might easily affect a broad range of board deliberations over a period of time. For example, if part of the proposed transaction involves Client's acquisition of stock in Corporation, consideration by Corporation's board of any matter likely to affect stock value might well include discussion of how particular action by the Board would affect the negotiations with Client.
A director of a corporation owes that corporation a broad duty of care and loyalty. For example, California Corporations Code section 309(a)(6) states:
A director shall perform the duties of a director, including duties as a member of any committee of the board upon which the director may serve, in good faith, in a manner such director believes to be in the best interests of the corporation and its shareholders and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.1
It is beyond the scope of this opinion to analyze in detail the scope of a director's fiduciary duties to a corporation; however, it is difficult to envision how an attorney under the facts stated above could serve on Corporation's board and not be under a fiduciary duty to Corporation to recuse herself from board deliberations relating to the subject matter of that representation.
It is a well established principle of California law that an attorney may be subject to professional discipline for her breach of fiduciary duties owed to another, even though the relationship from which those fiduciary duties arise is not one of attorney and client. (See, e.g., Hartford v. State Bar (1990) 50 Cal.3d 1139, 1153 [270 Cal.Rptr. 12]; Worth v. State Bar (1976) 17 Cal.3d 337, 341 [130 Cal.Rptr. 712]; Simmons v. State Bar (1969) 70 Cal.2d 361, 365 [74 Cal.Rptr. 915]; Clark v. State Bar (1952) 39 Cal.2d 161, 166-170 [246 P.2d 1].) This principle applies even to an attorney who may have breached her fiduciary duties without fraudulent intent.2
Applicable corporate law, rather than the rules of professional conduct, however, would govern both the scope of the attorney's fiduciary duties and whether (and, if so, how) Corporation might properly consent to the attorney's continued service on the Board notwithstanding the conflict of interest.3
Under former rule 5-102(B) of the 1975 version of the California Rules of Professional Conduct - the precursor of current rule 3- 310(C) - the attorney under the facts cited above would be required to obtain Corporation's informed consent to the joint representation regardless of whether Corporation were deemed the attorney's client. In William H. Raley Co. v. Superior Court (1983) 149 Cal.App.3d 1042 [197 Cal.Rptr. 232], the Court of Appeal applied former rule 5-102(B) in reversing the trial court's denial of defendant's motion to disqualify plaintiff's counsel. A partner in the firm representing plaintiff was also a director and trust investment committee member of a bank holding as trustee 100% stock ownership in defendant. No attorney of the firm representing plaintiff had ever represented defendant or the bank as legal counsel.
Former rule 5-102(B) states: "A member of the State Bar shall not represent conflicting interests, except with the written consent of all parties concerned."
Because "client" does not appear in the language of former rule 5- 102(B), the Raley court was not confronted with the problem of how to construe that term.
In contrast, under California's current basic conflict of interest authority, rule 3-310, the ethical duties imposed on the member are plainly formulated to protect only "clients": rule 3-310(B) speaks only to representation of a "client" absent written disclosure to the "client"; rule 3-310(C)(1) and rule 3-310(C)(2) address only representation of more than one "client"; rule 3-310(C)(3) is concerned with accepting representation of a "client" in one matter while representing another "client" in another matter; the prohibition of rule 3-310(E) on acceptance of employment adverse to a client or former client can be avoided by informed written consent of that "client or former client."
In assessing, then, whether any of the subsections of current rule 3-310 impose on the attorney an independent ethical duty toward Corporation, the threshold question is whether Corporation is the attorney's "client."
The argument can be made that the term "client," as used in the rules of professional conduct, has a much broader meaning than that associated with other definitions of the attorney-client relationship. There is a strong line of authority in California case law supporting the rule that:
. . . when [an attorney] is licensed to practice as an attorney at law, the professional services that he thus performs are performed by him as an attorney, whether or not some of the services could also be rendered by one licensed in a different profession. One who is licensed to practice as an attorney in this state must conform to the professional standards in whatever capacity he may be acting in a particular matter.(Emphasis added.) (Libarian v. State Bar (1943) 21 Cal.2d 862, 865 [136 P.2d 321] (citing Jacobs v. State Bar (1933) 219 Cal. 59 [25 P.2d 401].)4
With the exception of Raley, and those cases that cite Libarian only in dictum,5 the Libarian/Jacobs line of cases involve attorneys who had furnished non-legal services to otherwise unrepresented parties where those non-legal services were closely related to the attorney's law practice.6 That line of cases, however, is distinguished from the fact situation at hand by the presence here of independent counsel for Corporation.7
Moreover, the reasoning of the California Supreme Court in Kapelus v. State Bar (1987) 44 Cal.3d 179 [242 Cal.Rptr. 196] is more consistent with a limited application of the Libarian rule. In Kapelus v. State Bar, the Supreme Court concluded that the petitioning attorney had violated neither former rule 4 (predecessor of 1975 rule 5-101 and current rule 3-300 prohibiting an attorney from acquiring an interest adverse to a client) nor 1975 rule 4-101 (the predecessor of current rule 3-310(E)) when he represented a limited partnership of which he was a general partner against certain limited partners. The Court acknowledged that, in his capacity as general partner, the attorney had a fiduciary relationship with the limited partners; nonetheless, according to the Court, the relationship did not arise to that of attorney and client, and, therefore, former rules 4 and 4-101 did not apply.
If we were to adopt a broad construction of the term "client" for purposes of rule 3-310, it would be difficult indeed to justify a narrower construction of the same term elsewhere in the California Rules of Professional Conduct. To broaden the term "client" for all purposes under the rules, however, would produce far-reaching and, we believe, unintended results. For example, if a corporation on which an attorney served as director were by definition the attorney's "client" for purposes of the rules, the attorney/director might risk violating rule 3-400 (Limiting Liability to Client) simply by voting for or even benefitting from a provision in the corporation's articles limiting director liability. Defense and indemnification of the attorney/director by the Corporation in connection with litigation of claims arising out of the attorney's conduct as a director might well be restricted by rule 3-400 if the Corporation were the attorney's "client." The attorney/director would also probably have an ethical obligation to resign as director if the corporation insisted upon action in violation of law likely to result in substantial injury to the organization. (Rule 3-600(C).) The attorney/director would likely in all cases have an ethical duty beyond that generally imposed upon directors "at every peril" to preserve "secrets" - such as, for example, disclosures of past illegal conduct or existing illegal conditions - revealed to her by her "client" even though the confidences might clearly not be attorney/client privileged communications. (Bus. & Prof. Code, § 6068 (e)).8
A general rule holding the beneficiary of a fiduciary relationship with an attorney to be that attorney's "client" as a matter of law for purposes of the rules of professional conduct even though that beneficiary is at all times separately represented by legal counsel, appears neither necessary to accomplish any policy sought to be furthered by the ethical rules nor compelled by the language of those rules.9
Irrespective of whether the corporation for which an attorney serves as director should in all cases be deemed the "client" of the attorney when applying the rules of professional conduct to her activities as director, service by an attorney in such a capacity brings with it a significant risk that an attorney-client relation ship will actually arise.
Whether an attorney-client relationship exists does not depend upon the existence of an express agreement between attorney and client that such a relationship exists. (See Responsible Citizens v. Superior Court (July 1, 1993, F018604) Cal.App.4th [93 C.D.O.S. 5122].) "[A] client includes a person or entity which consults a lawyer for the purpose of retention or advice even if neither results." (Cal. State Bar Formal Opn. No. 1984-84 [see, e.g., Estate of Dupont (1943) 60 Cal.App.2d 276, 288 [140 P.2d 866, 872]; People v. Dorvance (1944) 65 Cal.App.2d 125, 129 [150 P.2d 10, 12] and L.A. Cty. Bar. Assn. Formal Opn. No. 366.) Courts are especially prone to find that an attorney-client relationship has arisen when a putative client reveals information in confidence to one he knows to be an attorney. (See, e.g., Miller v. Metzinger (1979) 91 Cal.App.3d 31 [154 Cal.Rptr. 22]; Ferrara v. La Sala (1960) 186 Cal.App.2d 263 [9 Cal.Rptr. 179]; Westinghouse Electric Corporation v. Kerr-McGee Corporation, et al (7th Cir. 1978) 580 F.2d 1311.10 But see People v. Thoi (1989) 213 Cal.App.3d 689 [261 Cal.Rptr. 789].)
Matters addressed by a board of directors often involve legal issues. Business negotiations, employment and pricing policies, and even budgeting decisions are often permeated with legal issues. An attorney-client relationship may arise if, in the course of such deliberations, the corporation looks to the attorney on any such issues for legal advice.
The attorney in the fact situation described above could easily find her relationship with Corporation to be one of attorney and client. Whether Corporation is the attorney's "client" depends more upon how the attorney's co-directors on the board and the corporate officers view the attorney's role than upon whether Corporation and the attorney have entered into a fee agreement. Relevant inquiries include: Why was the attorney elected to the board and for what do the board and the officers look to the attorney? Does the board, for example, look to the attorney to second guess the advice of corporate counsel? Was Corporation ever the attorney's client in the past?11
In light of the high risk that the attorney's relationship with Corporation might be deemed one of attorney and client, caution would normally dictate that, when assessing her ethical duties under the fact situation described above, the attorney assume that the Corporation is her client. Of course, once Corporation is the attorney's "client" for any purpose (whether or not in connection with the subject transaction), then the various subsections of rule 3-310 must be examined still further to ascertain whether they apply in the particular circumstances.
This Section 4 addresses how rule 3-310 would affect the attorney's ethical duties to Corporation under the above-stated facts, assuming that Corporation is the attorney's client.
(a) Rule 3-310(C).
Rule 3-310(C)(1) forbids an attorney from accepting "representation of more than one client in a matter in which the interests of the clients potentially conflict." Rule 3-310(C)(2) forbids an attorney from either accepting or continuing "representation of more than one client in a matter in which the interests of the clients actually conflict."
To determine whether either of these clauses of rule 3-310(C) applies to the facts described above, one must first ascertain whether (i) the attorney is "representing" Client and Corporation "in the same matter," and (ii) whether the clients' interests "potentially" or "actually" conflict.
If Corporation were to seek legal advice from the attorney in connection with the transaction between Corporation and Client, her "representation" of Client is clearly "in the same matter." It is less clear whether the attorney's "representation" of Corporation is "in the same matter" when, as is the case under the facts described above, attorney's participation is limited to board deliberations and voting on the transaction.
Although we believe that neither case law nor ethics opinions dictate a broad construction of "client" as that term is used in the Rules, the Raley case does furnish authority for a broad construction of the term "representation." Whereas former rule 5- 102(B) did not mention the term "client," its proscription was worded in terms of "represent[ing] conflicting interests." The holding in Raley interpreting former rule 5-102(B) indicates that "representation" should be interpreted broadly enough to encompass even instances in which the client - i.e., Corporation - seeks the attorney's views on issues not strictly legal in nature. (William H. Raley v. Superior Court, supra, 149 Cal.App.3d at pp. 1046- 1048.)
We agree that a broad construction of "representation" is appropriate here. Once an attorney-client relationship of any kind is established, it is too likely that the client will expect the attorney's advice to include -- implicitly, if not expressly -- some degree of legal counsel. In analyzing the application of 3- 310(C) to these facts, the attorney should, therefore, be considered to be "representing" Corporation in connection with the transaction if she is in any way involved in board deliberations or voting relating to that transaction.12
As to the second issue -- whether the interests of Corporation and Client "potentially" or "actually" conflict -- the facts would indicate that at least a potential for conflict would exist.13 As the Discussion accompanying rule 3-310 states, "Subparagraphs (C)(1) and (C)(2) are intended to apply to all types of legal employment, including the concurrent representation of multiple parties in litigation or in a single transaction or in some other common enterprise or legal relationship." If a transaction is sufficiently significant to merit the attention of a corporate board of directors, such potential for conflict is a virtual certainty. Therefore as long as the attorney participates in any way in deliberations relating to the transaction, therefore, she will have to obtain the informed written consent of Corporation (as well as that of Client).
Of course, if rule 3-310(C) otherwise applies and a potential conflict turns into an actual one, the attorney will once again have to obtain the informed written consent of her clients, and might even have to withdraw from further representation of Corporation, Client or both.14
(b) Rule 3-310(E).
If, in the course of serving either as legal counsel for Corporation or as a board member, the attorney obtains confidential information material to the transaction, then rule 3-310(E) imposes an independent duty on the attorney to obtain Corporation's informed written consent before she may accept employment with Client.15 Rule 3-310(E) applies even if the attorney recuses herself from participation in board deliberations and voting relating to the transaction with Client.
(c) Rule 3-310(B).
The burden under rule 3-310(B) is only to furnish "written disclosure," not to obtain "informed written consent" as is the case under rule 3-310(C). Rule 3-310(B), therefore, need only be considered under these facts if rule 3-310(C) does not apply -i.e., if the attorney does not participate in any board deliberations or voting relating to the transaction.
The first three categories encompass relationships between a member and another person or entity who is in some manner linked to the "matter" in which the member "represents" the client (i.e., Corporation). Only if the attorney were to participate in board deliberations or voting relating to the transaction, however (precisely the same case in which rule 3-310(C) would impose an even greater burden) would she be representing Corporation in that "matter." These first three categories, therefore, do not independently impose any additional burden on the attorney here.
Similarly, the fourth category, encompassing situations in which the member has one of the listed kinds of interests in the "subject matter of the representation" (here, the representation of Corporation) has no application as long as the transaction is excluded from the "subject matter" of the attorney's representation of Corporation.
(d) If "informed written consent" is required under rule 3-310(C) or rule 3-310(E), can it always be obtained?
"Informed written consent" under rule 3-310 means "the client's or former client's written agreement to the representation following written disclosure." (Rule 3-310(A)(2).) "Disclosure" means "informing the client of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client . . . ." (Rule 3-310(A)(1).)
Although rule 3-310(B), (C) and (E) appear to permit all otherwise proscribed representations if the member gives "written disclosure" (in the case of 3-310(B)) or obtains the clients' or former clients' "informed written consent (in the case of rule 3-310(C) or (E)), the Discussion to rule 3-310 states that "[o]ther rules and laws may preclude making adequate disclosure under the rule."
Here, the attorney-director's access to confidential information of both Corporation and Client will almost inevitably be so great, her involvement in corporate decision-making (even subject to the strictures of rule 2-100) so broad, and her fiduciary obligations to each party so strong, that disclosing to either party all relevant circumstances may be difficult or even impossible without violation of duties owed to the other party. Moreover, even if the attorney is able to make adequate disclosure, she is likely to be unable to give either of her clients competent representation due to her split loyalties and inability to take advantage of confidential information obtained from the other. An attorney's duty to give competent representation may not be waived. (See rule 3-110; L.A. Cty. Bar Formal Opn. No. 471 (1992).) Effective informed written consent, therefore, may be either impossible or insufficient.
The attorney has a duty "at every peril to himself or herself to preserve the secrets of his or her client." (Bus. & Prof. Code, § 6068 (e).) Protected confidences include all "information conveyed to the attorney as to which the client has an expectation that it will not be disclosed to others nor used against him." (Cal. Formal Opn. No. 1984-84 at p. 2; see also Yorn v. Superior Court (1979) 90 Cal.App.3d 669, 676 [153 Cal.Rptr. 295].) If Corporation is the attorney's client for any purpose, her duties under Business and Professions Code section 6068 (e) would preclude the attorney's disclosure or misuse of such information received in the course of any of her activities on behalf of Corporation.
The attorney should be especially wary of the possibility that, if she should accept representation of Client, her access to Client secrets and the existence of her Business and Professions Code section 6068 (e) duty as to Client may prevent her from fulfilling her fiduciary obligations to Corporation.
If circumstances give rise to an attorney-client relationship between the attorney and Corporation, then rule 3-310(C) applies under the analysis described in Section I(C)(4)(a), above, and informed written consent of both Client and Corporation will be required.16
As we discuss above, however, a corporation on whose board of directors an attorney serves might not per se be the attorney's client or, even if Corporation is the attorney's client, she might recuse herself from board deliberations and voting relating to the subject transaction. In either case, neither rule 3-310(C)(1) nor rule 3-310(C)(2) will apply, as they both presuppose concurrent representation of two or more "clients" in a single matter.17
Under rule 3-310(B)(1), a member has a duty to provide the client "written disclosure"18 where "[t]he member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter . . . ."
The relationship of a director to the corporation on whose board she serves is precisely the kind of relationship that rule 3-310(B) is intended to cover. Under the above-described facts, the attorney's representation of Client is likely to be materially limited by her responsibilities to non-client Corporation. A corporation's board of directors bears ultimate responsibility for making most major corporate decisions. As an attorney of that board, a director owes Corporation a broad duty of care and loyalty. As attorney for Client, on the other hand, the attorney is under an ethical and legal duty zealously and faithfully to use all lawful means and all information at her disposal to further Client's interests. Under the facts at hand, the chances are great that at some point the attorney will have to take action harmful to Corporation in order to fulfill her duties as Client's attorney. Taking such action, however, would violate the attorney's duties to Corporation, thereby possibly subjecting the attorney to civil liability as well as professional discipline.
The attorney, thus, has a clear duty to furnish Client "written disclosure"19 regardless of whether Corporation is her "client."
In the course of representing Client in negotiating a transaction, the attorney will almost certainly obtain confidential information from Client material to the subject transaction. The issue then arises whether the attorney "accepts employment" with Corporation in violation of his ethical duties to Client under rule 3-310(E) by serving as one of Corporation's directors.
Rule 3-310(E) only prohibits "acceptance" of employment, not the "continuation" of employment.20 In the fact situation described above, Client offers employment to the attorney at a time when the attorney is already on Corporation's board. The facts do not envision that the nature of the attorney's relationship with Corporation will change because of the transaction. Rule 3-310(E), therefore, does not apply here.
The duty to protect client secrets will, of course, apply to any secrets of Client that attorney learns in the course of her representation of Client.
By choosing to simultaneously represent Client and to serve as a director of Corporation, the attorney runs significant risks of violating ethical rules, even if Corporation is independently represented by counsel. With respect to her duties to Corporation, the attorney must refrain from communications with Corporation's officers and directors regarding the subject matter of her representation of Client.
Whether or not Corporation is the attorney's client, the attorney may be subject to discipline for breaching her fiduciary duties to Corporation. Corporation, moreover, may easily be the attorney's client in fact even though it is being represented by other counsel in connection with the transaction. If so, the attorney will be subject to an even greater risk of breaching ethical duties owed both to Corporation and Client. Consequently, although facts may arise in which the attorney might successfully represent Client while serving on Corporation's board, the ethical and legal obstacles make acceptance of such dual roles highly imprudent.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any person or tribunal charged with regulatory responsibility or any member of the State Bar.
Corporate officers and directors are not permitted to use their position of trust and confidence to further their private interests. While technically not trustees, they stand in a fiduciary relation to the corporation and its stockholders. A public policy, existing through the years, derived from a profound knowledge of human characteristics and motives, has established a rule that demands of a corporate officer or director, peremptorily and inexorably, the most scrupulous observance of his duty, not only affirmatively to protect the interests of the corporation committed to his charge, but also to refrain from doing anything that would work injury to the corporation, or to deprive it of profit or advantage which his skill and ability might properly bring to it, or to enable it to make in the reasonable and lawful exercise of its powers. (Emphasis added.)
See also Rest.2d Agency, § 394 (an agent may not act as agent for another whose interest conflict with those of the principal or who is his competitor); Bainbridge v. Stoner (1940) 16 Cal.2d 423, 427 [106 P.2d 423].
See also Cal. Formal State Bar Opn. No. 1982-69, in which this Committee concluded that a member of the bar acting as both a real estate broker and attorney in the same transaction must conform "in all aspects of such activities" with the California Rules of Professional Conduct. (Id. at p. 3)
[the attorney's] second occupation [real estate broker] is so law-related that the work of the lawyer in such occupation will involve, inseparably, the practice of law, the lawyer is considered to be engaged in the practice of law while conducting that occupation.
Having assumed the responsibility to hold and disburse the funds as directed by the court or stipulated by both parties, petitioner owed an obligation to [the wife] as a "client" to maintain complete records, "render appropriate accounts," and "[p]romptly pay or deliver to the client" on request the funds he held in trust. (Id. at p. 979.)
The facts in Guzetta, involved the attorney's clear breach of a common law fiduciary duty to a non-client to segregate, maintain records of and account for funds held in trust. (See Prob. Code, §§ 16009, 16060 and 16061; Rest. 2d Trusts, §§ 172, 179 and 180.)
The scope of the Guzetta holding in not clear. In another former rule 8-101 case, Hartford v. State Bar, supra, 50 Cal.3d 1139, the Supreme Court declined to extend Guzetta beyond its particular facts. Given the Supreme Court's hesitation to use Guzetta as controlling authority even in another former rule 8-101 case, we do not consider it appropriate to extend its holding even further.
Similarly, in Cal. Formal Opn. No. 1981-63, this Committee refused to hold an attorney-city council member to the standard of former rule 4-101 vis-à-vis the city where the attorney sought to represent a tort claimant against the city. This Committee concluded that former rule 4-101 did not apply because the fact that the attorney served on the city council did not in itself make the city the attorney's "client." (Like the Court of Appeal in William H. Raley v. Superior Court, however, this Committee concluded that the attorney did have an ethical duty under the more broadly worded former rule 5-102(B) to obtain the City's written consent to his representation of the tort claimant.)
For rule 3-310(C)(3) to apply, the member must represent a client (C1) "in a matter" (Matter 1) and at the same time in a separate matter (Matter 2) "accept as a client" (C2) one whose interest in Matter 1 is adverse to C1. This formula does not fit the facts presented, however, if we assume the attorney's recusal from board deliberations relating to the proposed transaction -- the "Matter 1" in which there is adversity between Client and Corporation. Corporation cannot be "C1," because attorney is not representing Corporation with respect to the transaction, Matter 1, and Corporation cannot be "C2," because the attorney is not "accept[ing Corporation] as a client" -- any attorney-client relationship between the attorney and Corporation predates the transaction that Client is proposing.
"Disclosure" means informing the client or former client of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client or former client.
"Written" means any writing as defined in Evidence Code section 250.
(Rule 3-310(A)(1) and rule 3-310(A)(3).)