Filed 7/10/23 Wheatley v. County of Orange CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ROBERT WHEATLEY et al.,

 Plaintiffs and Respondents,

v.

COUNTY OF ORANGE,

 Defendant and Appellant.

 G061149

 (Super. Ct. No. 30-2021-01205181)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Nathan R. 

Scott, Judge. Affirmed. Motion to offer new evidence. Denied.

Lynberg & Watkins, S. Frank Harrell, Norman J. Watkins and Marlena R. 

Mlynarska for Defendant and Appellant.

Klein & Wilson, Gerald A. Klein and Brian M. Kelly for Plaintiffs and 

Respondents.
2

Disqualification of counsel is the appropriate remedy when a law firm 

concurrently represents two clients with adverse interests. In this case, substantial 

evidence supports the trial court’s finding the Lynberg & Watkins law firm (Lynberg) 

entered into an attorney-client relationship with Robert Wheatley and his law firm1at the 

same time Lynberg was representing the County of Orange and other individual 

defendants (collectively the County) in connection with a lawsuit Wheatley was 

preparing to file against them. The trial court did not err by disqualifying Lynberg from 

representing the County in Wheatley’s lawsuit. We therefore affirm.

Because this is a matter of simultaneous or concurrent representation, rather 

than successive representation, and therefore implicates a violation of the duty of loyalty 

to the client, the County’s arguments regarding the type of confidential information 

disclosed, the viability and strength of ethical walls, and the departure of the “tainted” 

attorneys from the Lynberg firm are not on point. 

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Beginning in July 2016, Wheatley and the County of Orange had a written 

contract by which worker’s compensation claims concerning county employees were 

referred to Wheatley. The contract was amended in January 2018. Effective November 

2019, the County of Orange cancelled the contract and pulled all cases from Wheatley. 

Wheatley contends Orange County’s Risk Manager, Michael Alio, and its Chief 

Executive Officer, Frank Kim, did not like Robert because Wheatley succeeded in 

reducing the County of Orange’s reserves for worker’s compensation claims and because 

Wheatley refused to participate in Alio’s alleged practice of falsifying worker’s 

1

 The plaintiffs/respondents in this case are attorney Robert Wheatley and The Wheatley 

Firm, also known as the Law Offices of Robert Wheatley. We will refer to these parties 

as Wheatley. William Wheatley is the brother of Robert Wheatley. William Wheatley is 

also an attorney working in a different law firm. We will refer to individuals Robert 

Wheatley and William Wheatley by their first names, where appropriate, to avoid 

confusion; we intend no disrespect. 
3

compensation resolutions. On November 20, 2019, the County retained Lynberg to 

represent it in the anticipated litigation to be brought by Wheatley. Robert was unaware 

of Lynberg’s involvement in the anticipated Wheatley litigation against the County.

In December 2019, allegedly as a result of the loss of worker’s 

compensation business, Wheatley laid off attorney Lee Ann Smythe. In January 2021, 

Smythe filed a complaint against Wheatley, alleging age discrimination and wrongful 

termination (the Smythe litigation). William initially represented Wheatley in the 

Smythe litigation.

On April 7, 2021, Robert e-mailed Norman Watkins, a partner in Lynberg’s 

Orange County office, to discuss “representing my firm for an Age Discrimination 

lawsuit.” Having received no response from Watkins, Robert contacted an associate 

attorney in Lynberg’s Los Angeles office, Kimberly Horne, by e-mail on May 12, 2021.

2

 

Robert asked Horne if she could handle an age discrimination case. Horne forwarded 

Robert’s e-mail to the firm’s managing partner, Michael Larin, and another attorney. 

Larin immediately e-mailed Robert and recommended Courtney L. Hylton, a partner in 

Lynberg’s Orange County office, specializing in employment defense.

The next day, Robert asked Larin to set up a meeting with Hylton. He also 

wrote: “‘According to my records we do not have a conflict, however, I’m sure you will 

do a conflict of interest check and you should check: Robert Wheatley, The Wheatley 

Firm, and Law Offices of Robert Wheatley.’” Larin connected Robert with Hylton. 

Robert and Hylton scheduled a videoconference for May 17, 2021, in

which William and Lynberg associate Ladan Shelechi would also participate. At 

Hylton’s request, William sent the complaint and answer from the Smythe litigation to 

Hylton before the videoconference. At the beginning of the videoconference, Robert

2

 While Lynberg suggests Robert’s communication to a first-year associate without 

experience in defending age discrimination matters is a sign of bad faith, Robert’s 

declaration explains Horne was a law school classmate of his daughter.
4

asked Hylton if they had “cleared conflicts,” and Hylton responded, “‘we checked and 

we’re clear.’” (Italics and boldface omitted.) Robert, William, Hylton, and Shelechi then 

discussed the reasons Wheatley terminated Smythe, Wheatley’s future plans with respect 

to Smythe, and Wheatley’s employment reimbursement practices. 

The parties dispute whether during the videoconference Robert provided 

confidential information regarding Wheatley’s lawsuit against the County, specifically 

the nature of the dispute between Wheatley and the County, including claims for 

damages, Wheatley’s beliefs regarding Alio’s falsification of documents, and Wheatley’s 

strategy to prove Alio’s falsification of documents.3 Robert declared he disclosed 

confidential information to the Lynberg attorneys regarding both lawsuits “because the 

cases are inextricably interrelated. Essentially, my defense to the Smythe Litigation 

forms my affirmative claims in the Alio Litigation: Defendants’ actions caused my firm 

to suffer significant lost revenues, which required me to lay off Smythe. The impact of 

Defendants’ actions on my law firm is inseparable from my defense to the Smythe 

Litigation. The two actions involve the same facts (e.g., the loss of business revenue and 

the reasons for that loss) and the same witnesses (e.g., Alio, Kim, and other personnel at 

the County).” (Italics omitted.)

Hylton provided legal advice to Wheatley and agreed to send Wheatley a 

retainer agreement. The next day, however, Hylton wrote to Wheatley: “Although our 

initial conflict check was clear, I have been informed that our firm has been retained to 

represent the County of Orange with respect to the claim for damages your firm 

submitted against the County. As such, I am unable to represent you on this matter. I am 

truly sorry this did not come to light earlier. I wish you the best of luck in the matter with 

Ms. Smythe.”

3

 The facts presented here are those in the light most favorable to the trial court’s ruling. 

We will address Lynberg’s account of the statements made by the parties in the 

videoconference later in the opinion.
5

No one from Lynberg sought Wheatley’s consent to a conflict, and no one 

responded to separate e-mails from Robert and William regarding Hylton’s initial 

representation the firm did not have any conflicts of interest.

Wheatley filed a complaint against the County on June 10, 2021, and filed 

an amended complaint on June 28.

4

 On August 4, 2021, Robert sent an e-mail to Hylton 

and Shelechi stating the summons and complaint in Wheatley’s action against the County 

would soon be served and asking Lynberg to withdraw as counsel for the County. No 

one at Lynberg replied. On September 1, 2021, a Lynberg attorney e-mailed William to 

advise him Lynberg was representing the County and the individual defendants in the 

litigation. William responded, in relevant part: “As you should be aware, it is our 

position that your firm has a conflict of interest that precludes you from representing the 

defendants in this matter as noted in the email exchanges of May 18-20, 2021 and most 

recently August 4, 2021 with Ms. Hylton and Ms. Shelechi of your firm. I am attaching 

those email communications (to which we have never received a response) in the event 

you have not seen them.” On behalf of Lynberg, Watkins responded they disagreed with 

William’s conflict of interest contention.

On September 29, 2021, Wheatley filed a motion to disqualify Lynberg as 

counsel for the County. Following briefing, a hearing, and supplemental briefing, the 

trial court granted the motion to disqualify. The County filed a timely appeal.5

4

 The amended complaint asserted eight causes of action; after meeting and conferring 

regarding an anti-SLAPP motion, Wheatley dismissed all causes of action without 

prejudice, except for a cause of action for breach of contract.

5

 An order granting an attorney disqualification order is immediately appealable. (URS 

Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 878; see Code Civ. 

Proc., § 904.1, subd. (a)(6).) Although Lynberg had standing to appeal the 

disqualification order as the disqualified law firm, (Kirk v. First American Title Co. 

(2010) 183 Cal.App.4th 776, 791, fn. 10) (Kirk), it did not do so.
6

DISCUSSION

I.

STANDARD OF REVIEW

We review the trial court’s decision to disqualify the County’s attorneys for 

abuse of discretion. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change 

Systems, Inc. (1999) 20 Cal.4th 1135, 1143 (SpeeDee Oil); Jarvis v. Jarvis (2019) 

33 Cal.App.5th 113, 128 (Jarvis).) “‘The trial court’s findings of fact are reviewed for 

substantial evidence, its conclusions of law are reviewed de novo, and its application of 

the law to the facts is reversible only if arbitrary and capricious.’ [Citation.]” (Jarvis, 

supra, at p. 128.) “If the trial court resolved disputed factual issues, the reviewing court 

should not substitute its judgment for the trial court’s express or implied findings 

supported by substantial evidence. [Citations.]” (SpeeDee Oil, supra, 20 Cal.4th at 

p. 1143.) “[A] disqualification motion involves concerns that justify careful review of

the trial court’s exercise of discretion. [Citation.]” (Id. at p. 1144.)

II.

LYNBERG VIOLATED THE DUTY OF LOYALTY TO WHEATLEY BY ENTERING INTO AN 

ATTORNEY-CLIENT RELATIONSHIP WITH WHEATLEY WHILE CONCURRENTLY

REPRESENTING THE COUNTY IN AN ACTION ADVERSE TO WHEATLEY; DISQUALIFICATION 

IS APPROPRIATE

A motion to disqualify counsel presents a conflict between a party’s right to 

be represented by counsel of their own choice, and the maintenance of ethical standards 

and the preservation of public trust. (SpeeDee Oil, supra, 20 Cal.4th at pp. 1145–1146.) 

“Attorneys have a duty to maintain undivided loyalty to their clients to avoid 

undermining public confidence in the legal profession and the judicial process. 

[Citation.] The effective functioning of the fiduciary relationship between attorney and 

client depends on the client’s trust and confidence in counsel. [Citation.] The courts will 

protect clients’ legitimate expectations of loyalty to preserve this essential basis for trust 
7

and security in the attorney-client relationship. [Citation.] Therefore, if an attorney—or 

more likely a law firm—simultaneously represents clients who have conflicting interests, 

a more stringent per se rule of disqualification applies. With few exceptions, 

disqualification follows automatically, regardless of whether the simultaneous 

representations have anything in common or present any risk that confidences obtained 

in one matter would be used in the other. [Citation.]” (SpeeDee Oil, supra, 20 Cal.4th at 

pp. 1146–1147, italics added; see Flatt v. Superior Court (1994) 9 Cal.4th 275, 285

(Flatt); Beachcomber Management Crystal Cove, LLC v. Superior Court (2017) 

13 Cal.App.5th 1105, 1117.)6

In SpeeDee Oil, the California Supreme Court set forth a clear means for 

determining whether a law firm is representing a client: “An attorney represents a 

client—for purposes of a conflict of interest analysis—when the attorney knowingly 

obtains material confidential information from the client and renders legal advice or 

services as a result. [Citations.]” (SpeeDee Oil, supra, 20 Cal.4th at p. 1148.) The lack 

of a written retainer agreement, the failure to agree on a fee to be charged, or the fact the 

attorney has spent very little time on the matter does not affect this analysis. (Id. at 

p. 1147–1148.) “The primary concern is whether and to what extent the attorney 

acquired confidential information.” (Id. at p. 1148.) Indeed, as the Supreme Court noted 

in Flatt, supra, 9 Cal.4th at page 284: “Even though the simultaneous representations 

may have nothing in common, and there is no risk that confidences to which counsel is a 

party in the one case have any relation to the other matter, disqualification may 

nevertheless be required.”

6

 An exception to this rule exists when the matters are unrelated, the law firm has made 

full disclosure, and both clients have provided written consent. (Flatt, supra, 9 Cal.4th at 

p. 285, fn. 4; see Cal. Rules Prof. Conduct, rule 1.7 [“A lawyer shall not, without 

informed written consent from each client . . . represent a client if the representation is 

directly adverse to another client in the same or a separate matter”].)
8

The trial court found Lynberg was defending the County against 

Wheatley’s claims as of May 17, 2021. The court further found Wheatley entered into an 

attorney-client relationship with Lynberg in the Smythe litigation on May 17, 2021, based 

on the exchange of confidential information by Wheatley to Lynberg and the provision of 

legal advice by Lynberg to Wheatley during the videoconference. These findings are 

supported by substantial evidence. While the Lynberg attorneys (Hylton and Shelechi)

who participated in the videoconference with Robert and William stated in their 

declarations Wheatley did not provide them with any confidential information regarding 

Wheatley’s claims against the County, under SpeeDee Oil the exchange of any 

confidential information is sufficient to support the trial court’s finding. The trial court 

did not err by concluding an attorney-client relationship was formed. As noted ante, the 

provision of legal advice to a client seeking such advice is prima facie evidence an 

attorney-client relationship was formed. (SpeeDee Oil, supra, 20 Cal.4th at p. 1148.)

Lynberg does not deny it entered into an attorney-client relationship with 

Wheatley. Lynberg instead focuses on whether Wheatley was likely to have shared 

details of its anticipated lawsuit against the County with Hylton and Shelechi, or whether 

the Lynberg attorneys would have ended the videoconference as soon as Wheatley began 

talking about the County. We need not address this argument because, as this is a matter 

of concurrent representation, the extent of the confidential information shared between 

client and attorney does not matter. Moreover, the credibility of witnesses and the weight 

to give to their testimony is quintessentially a job for the trial court. (Dodge, Warren & 

Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) 

III.

CASES INVOLVING SUCCESSIVE REPRESENTATION AND ETHICAL WALLS ARE INAPPOSITE

The County argues the trial court erred by applying a rule of automatic 

disqualification and failing to consider the ethical wall Lynberg erected between the 

attorneys representing the County and the specific attorneys who had entered an attorney-
9

client relationship with Wheatley. The County concedes “vicarious disqualification is the 

general rule.” (Kirk, supra, 183 Cal.App.4th at p. 801.) However, the authorities the 

County cites involve successive, not concurrent representation of clients with adverse 

interests.

In Kirk, three attorneys at Bryan Cave represented First American Title 

Insurance Company in a series of class actions. (Kirk, supra, 183 Cal.App.4th at p. 785.) 

Counsel for the plaintiffs in the class actions contacted Gary Cohen, a former deputy 

commissioner and general counsel of the California Department of Insurance who was 

then chief counsel at Fireman’s Fund Insurance Company, and asked him to serve as a 

consultant in the class actions. (Id. at p. 786.) Confidential information was provided to 

Cohen, but he declined the consultant position. (Ibid.) 

A year later, Cohen joined the law firm of Sonnenschein Nath & Rosenthal. 

(Kirk, supra, 183 Cal.App.4th at p. 787.) Plaintiffs’ counsel contacted Cohen again 

asking him to serve as an expert consultant; Cohen declined the offer, having confirmed 

through a conflicts check the Sonnenschein firm represented First American. (Ibid.) 

About a month later, the Bryan Cave attorneys representing First American moved to 

Sonnenschein and brought the class actions with them. (Ibid.) After plaintiffs’ counsel 

objected to Sonnenschein handling the class actions due to counsel’s confidential 

communications with Cohen, Sonnenschein erected an ethical wall around Cohen related 

to the class actions. (Id. at pp. 787–788.) After the ethical wall was erected, Cohen 

helped draft a letter to the Department of Insurance regarding another lawsuit against 

First American. (Id. at pp. 788–789.) In this separate lawsuit, an issue was the plaintiffs’ 

need to exhaust administrative remedies, which was also an issue in the class actions. 

(Ibid.) 

Plaintiffs in the class actions then moved to disqualify Sonnenschein based 

on their previous disclosure of confidential communications to Cohen. The trial court 

granted the motion, concluding vicarious disqualification of the law firm is automatic, 
10

regardless of an ethical wall, when an attorney possesses “disqualifying confidential 

client information.” (Kirk, supra, 183 Cal.App.4th at p. 790.) The appellate court 

concluded, under the factual circumstances of the matter, vicarious disqualification was 

not automatic but could be rebutted by a proper ethical wall. (Id. at p. 791.)7

Kirk distinguished Flatt as a case of breach of the duty of loyalty, rather 

than a case of breach of the duty of client confidentiality at issue in cases of vicarious 

disqualification. (Kirk, supra, 183 Cal.App.4th at p. 796.) Kirk also engaged in a 

comprehensive summary of the laws of California, the laws of other states, and policy 

considerations regarding vicarious disqualification in cases where an attorney with 

confidential client information switches sides in the same case. (Id. at pp. 792–809.) 

Ultimately, the Kirk court concluded when an attorney “tainted” with confidential 

information moves to a new firm, a rebuttable presumption arises that the attorney shared 

the confidential information with other attorneys at the law firm. (Id. at pp. 809–810.) 

The burden then shifts to the law firm to prove an effective ethical screen has been 

established around the tainted attorney. (Id. at p. 810.)

In Fluidmaster, Inc. v. Fireman’s Fund Ins. Co. (2018) 25 Cal.App.5th 545

(Fluidmaster), Fluidmaster and Fireman’s Fund were adverse in a case in which 

Fluidmaster sought insurance coverage in class actions regarding Fluidmaster’s allegedly 

defective products. (Id. at p. 548.) The Irvine office of the Crowell & Moring law firm 

represented Fireman’s Fund in that case. (Ibid.) During the pendency of the lawsuit, 

attorney Elizabeth Pollock began working in Crowell’s Los Angeles office. (Ibid.) In 

her previous employment, Pollock had worked at a technology services company where 

7

 The Kirk court referenced California Rules of Professional Conduct, former rule

3-310(E), which addressed former not current clients and is not contained within current 

rule 1.9. (See O’Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115, 1124.) By 

contrast, former rule 3-310(B) and (C) addressed issues of conflicts of interest with 

current clients, which is now covered by rule 1.7. (See Jarvis v. Jarvis (2019) 

33 Cal.App.5th 113, 134, fn. 7.) 
11

she was in charge of discovery in the Fluidmaster class actions. (Ibid.) When she began 

work with Crowell, the firm established an ethical wall “prohibiting any communication 

with [Pollock] on the Fluidmaster plumbing products litigation, and specifically 

prohibiting attorneys working on the Fluidmaster litigation from using her services.” (Id.

at p. 549, fn. omitted.) 

On Fluidmaster’s motion, the trial court disqualified the entire Crowell 

firm. (Fluidmaster, supra, 25 Cal.App.5th at p. 549.) During the pendency of the appeal 

from the disqualification motion, Pollock left the Crowell law firm. (Ibid.) The appellate 

court reversed and remanded the matter for a hearing to determine the strength of the 

ethical wall around Pollock and whether her time at Crowell “‘actually resulted in the 

improper transmission, directly or indirectly, of confidential information.’ [Citation.]” 

(Id. at p. 555, quoting Kirk, supra, 183 Cal.App.4th at p. 816.)

Kirk and Fluidmaster are easily distinguished from the present case. There, 

the attorney had the adverse party’s confidential information before joining the 

disqualified law firm and the disqualified law firm never had an attorney-client 

relationship with the adverse party. Here, Lynberg was adverse to Wheatley, based on 

Wheatley’s anticipated litigation against the County, at the time Lynberg, through Hylton 

and Shelechi, entered into an attorney-client relationship with Wheatley.

The County contends the attorneys who entered into the attorney-client 

relationship with Wheatley have left Lynberg and therefore argues the need for 

disqualification is gone. The duty of loyalty to the client was breached by the law firm. 

Any ethical wall around Hylton and Shelechi did not solve that problem, and their 

departure from the firm does not solve the problem either.8

8

 Because this argument lacks merit, we deny the County’s motion to offer new 

evidence, all of which was relevant to the departure of attorneys Hylton and Shelechi 

from Lynberg. 
12

IV.

RULE 1.18 OF THE CALIFORNIA RULES OF PROFESSIONAL CONDUCT 

IS FACTUALLY INAPPLICABLE

The County also argues the trial court erred in its interpretation of rule 1.18 

of the California Rules of Professional Conduct.9 In its minute order, the trial court 

concluded: “Rule 1.18 created a third category [besides client and non-client], 

‘prospective client.’ It did so to extend some protection to persons who provided 

confidential information to attorneys in the course of seeking representation or advice 

where ultimately no actual attorney-client relationship was formed. [¶] In other words, it 

promoted some non-clients to ‘prospective client’ status, with greater protection than they 

had before. It did not demote any actual clients or afford them less protection then they 

9

 Rule 1.18 provides as follows: “(a) A person who, directly or through an authorized 

representative, consults a lawyer for the purpose of retaining the lawyer or securing legal 

service or advice from the lawyer in the lawyer’s professional capacity, is a prospective 

client. [¶] (b) Even when no lawyer-client relationship ensues, a lawyer who has 

communicated with a prospective client shall not use or reveal information protected by 

Business and Professions Code section 6068, subdivision (e) and rule 1.6 that the lawyer 

learned as a result of the consultation, except as rule 1.9 would permit with respect to 

information of a former client. [¶] (c) A lawyer subject to paragraph (b) shall not 

represent a client with interests materially adverse to those of a prospective client in the 

same or a substantially related matter if the lawyer received from the prospective client 

information protected by Business and Professions Code section 6068, subdivision (e) 

and rule 1.6 that is material to the matter, except as provided in paragraph (d). If a 

lawyer is prohibited from representation under this paragraph, no lawyer in a firm with 

which that lawyer is associated may knowingly undertake or continue representation in 

such a matter, except as provided in paragraph (d). [¶] (d) When the lawyer has received 

information that prohibits representation as provided in paragraph (c), representation of 

the affected client is permissible if: [¶] (1) both the affected client and the prospective 

client have given informed written consent, or [¶] (2) the lawyer who received the 

information took reasonable measures to avoid exposure to more information than was 

reasonably necessary to determine whether to represent the prospective client; and [¶] 

(i) the prohibited lawyer is timely screened from any participation in the matter and is 

apportioned no part of the fee therefrom; and [¶] (ii) written notice is promptly given to 

the prospective client to enable the prospective client to ascertain compliance with the 

provisions of this rule.” 
13

already had. [¶] In this case, after considering oral argument and reviewing all of the 

briefing, the court is still persuaded that an actual attorney-client relationship was formed. 

As plaintiffs were actual clients of Lynberg & Watkins, Rule 1.18 is inapplicable. Thus, 

there is no need to analyze whether this matter is ‘substantially related’ to the Smythe

matter, work through the ‘reasonable measures’ exception, or determine plaintiffs’ good 

or bad faith. [Citation.]”

10

We agree with the trial court’s interpretation of rule 1.18. Wheatley was a 

client of Lynberg, and therefore there is no need to try to place Wheatley in a new 

category of prospective clients. This is particularly true when the new category of 

prospective clients was created in order to provide protection to the confidential 

information of more people, not fewer. (See Cal. Rules of Prof. Conduct, rule 1.18, 

comment 1.)

The County contends Wheatley did not act in good faith in seeking 

representation from Lynberg in connection with the Smythe litigation. The record belies 

this contention. When Robert first contacted Lynberg’s Orange County office seeking 

representation, no response was received; Lynberg did not respond to indicate they were 

handling another matter for the County adverse to Wheatley. More than a month later, 

when Robert communicated with Lynberg’s Los Angeles office, he was almost 

immediately connected with an attorney in the Orange County office. Five days passed 

before the initial videoconference. During that time, Robert asked Lynberg to run a 

10

 Comment 2 to rule 1.18 provides: “Not all persons who communicate information to a 

lawyer are entitled to protection under this rule. A person who by any means 

communicates information unilaterally to a lawyer, without reasonable expectation that 

the lawyer is willing to discuss the possibility of forming a lawyer-client relationship or 

provide legal advice is not a ‘prospective client’ within the meaning of paragraph (a). In 

addition, a person who discloses information to a lawyer after the lawyer has stated his or 

her unwillingness or inability to consult with the person [citation], or who communicates 

information to a lawyer without a good faith intention to seek legal advice or 

representation, is not a prospective client within the meaning of paragraph (a).” 
14

conflicts check, and provided all names to be checked. Finally, before the 

videoconference started, Robert asked whether they had “cleared conflicts” and the 

Lynberg attorneys responded “‘we checked and we’re clear.’” (Italics and boldface 

omitted.) The record does not indicate where and how Lynberg’s conflicts check process 

broke down, but any failure to identify the adverse representation before the first meeting 

between Lynberg and Wheatley was Lynberg’s. 

DISPOSITION

The order is affirmed. Respondents to recover costs on appeal.

MOTOIKE, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.