State Compensation Insurance Fund v. Drobot (192 F. Supp. 3d 1080, 2016)

ORDER DENYING MOTION FOR RECONSIDERATION AND DISCUSSING DISQUALIFICATION

Andrew J. Guilford, United States District Judge

This matter concerns whether a lawyer can represent—at the same time, in the same litigation, in the same courthouse—a criminal and his victim.

Being a defendant—particularly a criminal one—can be lonely. As a society, we don’t require a defendant’s friends to stand by the defendant. We don’t require a defendant’s parents to stand by the defendant. We don’t require a defendant’s children to stand by the defendant. We don’t even require a defendant’s spouse to stand by the defendant, though that spouse is often someone who took an oath to do so.

But a lawyer is different. Representing a client creates an unshakable loyalty that can still persist when bonds of friendship and family fail. There’s a practical reason for this. A lawyer needs to know the worst facts to give clients the best advice. Clients can’t feel comfortable providing such candor unless they know their lawyer is absolutely committed to advancing the clients’ interests and advocating against the conflicting interests of others. Though the rest of the world may be united against them, clients need to know that, at least their lawyer will reliably remain in their corner, even in the face of great temptation.

The importance and impact of loyalty in the attorney-client relationship extends beyond the client and counsel, to courts too. Judges áre often confronted with important issues and difficult disputes. Under our system of law, judges rely on adversarial advocates to help ensure that courts reach the right results in these situations. Adversarial advocacy assumes that lawyers are fiercely loyal in representing their clients. If that loyalty doesn’t exist, the engine of our legal system can’t run. Justice can’t be administered.

And the importance and impact of loyalty in the attorney-client relationship extends even further—beyond clients, beyond counsel, beyond courts—to. our country itself. We live in a nation governed by the rule of law. We’ve constructed a powerful government to administer that law—a government that can deprive a person of property, liberty, and even life. But unlike governments of men, which depend on might, our government of law ultimately depends on the consent of the governed for its continued existence. The public must trust that the government and the legal system that under-girds it are fair and just. Lawyers serve as both stewards and servants of that trust. Since well before the law was an industry, our society looked to the profession to safeguard a complex system that keeps our country going. When the loyalty of a lawyer to a lawyers’ clients comes into question, the public can lose faith in both the justice system and the bar that purportedly protects it. So while maintaining private confidences, a lawyer must sustain the public’s confidence. In this way a lawyer leads two lives, both bound by loyalty.

Given all this, it’s easy to see why a lawyer’s duty of loyalty is a duty recognized in the common law of every jurisdiction of the United States. It’s easy to see why a lawyer’s duty of loyalty is codified in every significant American code of legal ethics ever promulgated. It’s easy to see why a lawyer’s duty of loyalty is the most fundamental of all duties a lawyer owes a client. And it’s easy to see why so much is endangered when a lawyer lets opportunity affect that loyalty.

This matter presents a uniquely complex situation that requires the extensive review that follows. That review conclusively reaffirms what might otherwise be considered a commonsense proposition. That is, the duty of loyalty is improperly and im-permissibly compromised when one law firm represents—at the same time, in the same litigation, in the same courthouse—a criminal and his victim. That’s what happened here, and if the Court had allowed it to continue, loyalty would have been lost in ways that the client would not—and sometimes could not—understand until after harm had been done. Thus, there could be no informed waiver.

1. INTRODUCTION

Defendants stand accused of conspiring to defraud plaintiff State Compensation Insurance Fund (“SCIF”) by submitting fraudulent insurance bills and providing or receiving illegal kickbacks. The litigation arising out of this purported scheme involves dozens of defendants, two civil suits and a criminal suit, and well over a thousand filings spanning three years and three dockets.

The most recent round of motion practice focused on the question already' posed about whether here a law firm could represent a criminal and his victim. Since the answer was no, on March 22, 2016, the Court granted a motion for disqualification (“Motion for Disqualification”) filed by defendants Lokesh Tantuwaya and Dr. Lok-esh Tantuwaya, M.D., Inc. (collectively, “Tantuwaya”). The Court disqualified the law firm of Hueston Hennigan LLP from representing SCIF (the alleged victim) in this litigation given its concurrent representation of Paul Randall (an admitted criminal perpetrator). SCIF filed a motion for reconsideration (“Motion for Reconsideration”).

The Court DENIES the Motion for Reconsideration. The previous disqualification remains, and the previous tentative opinion is expanded here to further explain why disqualification is required.

2. BACKGROUND

A review of the relevant law is, of course, necessary and helpful. But before discussing the applicable legal standards, it’s important to understand that this litigation is uniquely complex in ways that may limit the applicability of some case law, particularly since one client here has the Sixth Amendment right to counsel for those facing criminal charges. Cases like this are reassuringly rare. Here’s a summary.

2.1 The Civil Side of this Litigation

SCIF provides California employers with workers’ compensation insurance policies. Under those policies, SCIF reimburses medical providers that treat employees who get sick or injured on the job. According to SCIF, various medical providers—including doctors, clinics, and marketers—schemed to defraud SCIF by submitting fraudulent insurance bills for medical services, medical hardware, and medications. There were several components to the alleged scheme. Medical providers allegedly entered into contracts to inflate the costs of medical procedures and medications. Medical providers allegedly paid kickbacks to doctors for referring patients to preferred facilities or for using preferred products or medications. Medical providers allegedly entered into illegal fee-sharing agreements. And medical providers allegedly overbilled SCIF for medical services.

In June 2013, SCIF filed a lawsuit (“SCIF 1”) against a key architect of the alleged scheme, Michael D. Drobot Sr., as well as other alleged co-conspirators. In March 2015, those defendants filed a third-party complaint seeking indemnity from other medical providers, including various doctors and their associated entities. In July 2015, the Court granted SCIF leave to file an amended complaint that named as defendants the parties who were already named as third-party defendants in the third-party complaint. Accordingly, in its third amended complaint (“TAC”), SCIF added twenty-eight of the third-party defendants. But notably, SCIF didn’t add Randall, even though Randall was named as a third-party defendant in the third-party complaint.

In August 2015, SCIF filed another lawsuit (“SCIF 2”) raising similar allegations against other medical providers that the Court didn’t allow SCIF to add in SCIF 1. Again, notably, SCIF didn’t add Randall as a defendant.

Let’s summarize. By the end of August 2015, there were two operative complaints—the TAC in SCIF 1 and the complaint in SCIF 2. In SCIF 1, there was also an amended action for equitable indemnity (“CC/FATPC”) between the cross-defendants and four other third-party defendants not named in the TAC. Notably, Randall is a defendant in the CC/ FATPC.

In November 2015, the Court heard motions to dismiss the TAC and CC/FATPC in SCIF 1, a motion for summary judgment in SCIF 2, and motions to dismiss the complaint in SCIF 2. In December 2015, the Court denied those motions.

2.2 The Criminal Side of this Litigation

Federal prosecutors were also involved in the litigation arising out of the alleged fraudulent scheme, even before they filed motions to intervene in SCIF 1 and SCIF 2. In April 2014, Drobot Sr. pled guilty to workers’ compensation fraud against SCIF and others. In November 2015, the U.S. Department of Justice announced that the government had charged five other individuals in the same kickback scheme. According to the government’s press release, all five criminal defendants were cooperating in the government’s ongoing investigation of. the scheme, dubbed “Operational Spinal Cap.” The government’s press release stated that

[t]he schemes involved tens of millions of dollars in illegal kickbacks to dozens of doctors, chiropractors and others. As a result of the illegal payments, thousands of patients were referred to Pacific Hospital in Long Beach, where they underwent spinal surgeries that led to more' than $580 million in bills being fraudulently submitted during the last eight years of the scheme alone. Many of the fraudulent claims were paid by the California worker’s compensation system and the federal government.

. Randall was charged for his involvement in that scheme. As the government’s press release states,

Paul Richard Randall, 56, of Orange, California, a health care marketer previously affiliated with Pacific Hospital and Tri-City Regional Medical Center in Hawaiian Gardens, pleaded guilty on April 16, 2012, before Judge [Josephine L.] Staton to conspiracy to commit mail , fraud. Randall, who admitted recruiting chiropractors and doctors to refer patients to Tri-City in exchange for kickbacks, is scheduled to be sentenced on April 8, 2016.... Randall, who also facilitated the Pacific Hospital scheme by introducing doctors to Drobot [Sr.] and coordinating kickback arrangements, pleaded guilty to participating in a separate, similar scheme involving Tri-City Regional Medical Center.

Randall hasn’t been sentenced yet.

In January 2016, the United States moved to intervene in SCIF 1 and SCIF 2 to modify several subpoenas and restrict discovery requests. The Court granted the motions with modifications, noting the three cases’ overlap and the “countless ways” certain civil discovery requests could thwart the government’s ongoing criminal investigation into the fraud. The Court was also persuaded that some of the information defendants sought was protected by the law enforcement • privilege.

2.3 The First Motion to Disqualify

Back in July 2014, the Court denied a motion to disqualify Plaintiff’s counsel—at the time, the law firm Irell & Manella LLP—filed by pharmacy defendants. Between May 2010 and June 2011, an Irell & Manella partner exchanged over a hundred emails with Michael R. Drobot Jr., a current defendant. The partner had advised Drobot Jr. about buying three pharmacy defendants from Drobot Sr., who is his father and a current defendant. In June 2013—two years after the partner left Irell & Manella—Irell & Manella agreed to represent the current plaintiff, SCIF. The firm did not have knowledge of the former partner’s emails or the conflict. In a nineteen page order, the Court denied the motion to disqualify Irell & Manella because there wasn’t enough evidence to show that confidential information was conveyed to the firm. The Court stated that the motion posed a “close question,” but ultimately held that disqualification was inappropriate.

2.4 The Second Motion to Disqualify

• The most recent motion to disqualify also sought to disqualify Plaintiffs counsel—at the time, Hueston Hennigan LLP. Although the firm name had changed, SCIF’s attorneys hadn’t. In January 2015, John Hueston and Brian Hennigan, along with thirty or so other lawyers, left Irell & Manella to form Hueston Hennigan., There Hueston and other lawyers continued to represent SCIF. During a December 2015 mediation session, Tantuwaya’s counsel learned that Hennigan represented Randall, one of the third-party defendants in SCIF 1, perhaps beginning as early as 2010 or 2011. This conflict only came to light after Judge Staton unsealed Randall’s criminal case in late November 2015. Hennigan has maintained that he only represented Randall-in :his criminal case, and not in the civil cases before this Court. According to Hennigan, attorney Anthony Graham of Graham & Martin LLP has been representing Randall in the civil cases.

Tantuwaya filed the most recent motion for disqualification based on Hueston Hen-nigan’s concurrent representation of Randall and SCIF. Before filing the motion, Tantuwaya and SCIF met and conferred through each party’s counsel. During that meeting, SCIF threatened to seek sanctions against Tantuwaya’s counsel for filing the motion. SCIF did not mention that it had gotten conflict waivers from both Randall and SCIF. A few defendants joined the motion. Many other defendants represented by larger law firms did not.

The gist of Tantuwaya’s motion was straightforward. He pointed out that Hue-ston Hennigan was representing SCIF, the victim of a fraud, and Randall, a perpetrator of that fraud, at the same time in the same litigation arising out of the same fraud. He argued that this representation created conflicts of interest that required the Court to disqualify Hueston Hennigan from representing SCIF.

The Court considered everything the parties submitted, including not only the motion, opposition, and reply, but also sur-replies, sur-sur-replies, supplemental declarations, and other typically-disallowed documents that the Court allowed the parties to file. Based on those filings and before the hearing on the motion for disqualification, the Court issued a detailed, nineteen page tentative opinion for the parties’ benefit. The Court then provided the parties more than ninety minutes of oral argument to address the tentative, SCIF argued for much, and perhaps a majority, of that time.

After reviewing all that, the Court issued a short order granting the motion to disqualify. Stating the obvious, this inherently meant that the Court denied SCIF’s request for sanctions against Tantuwaya’s counsel. The Court promised the parties that it would issue a longer opinion further explaining the decision to disqualify. This is that opinion.

2.5 The Motion for Reconsideration

SCIF then filed the Motion for Reconsideration, which precipitated another round of papers and another lengthy hearing, this one spilling over from the morning into the afternoon.

That brings us to the present. After considering about a thousand pages of documents and more than four hours of oral argument on this disqualification issue, the Court confirms that disqualification was appropriate and necessary here, while finding no grounds for the Motion for Reconsideration.

3. THE SECOND MOTION TO DISQUALIFY

3.1 Legal Standard

“The authority of a trial court to disqualify an attorney derives from the power inherent in every court to control in furtherance of justice, the conduct of its ministerial officers.” City & Cty. of San Francisco v. Cobra Sols., Inc., 38 Cal.4th 839, 846, 43 Cal.Rptr.3d 771, 135 P.3d 20 (2006) (alteration and internal quotation marks omitted) (quoting People ex rel. Dep’t of Corps. v. SpeeDee Oil Change Sys., Inc., 20 Cal.4th 1135, 1139, 86 Cal. Rptr.2d 816, 980 P.2d 371 (1999)). California’s ethical rules, including applicable California state court decisions and the Rules of Professional Conduct of the State Bar of California, provide guidance about when courts should disqualify attorneys. See L.R. 83-3.1.2. But “it is relatively unimportant whether the status or misconduct claimed to warrant disqualification is proscribed by a particular ethical norm or disciplinary rule or may be characterized [instead] as a failure to avoid the appearance of impropriety.” Gregori v. Bank of Am., 207 Cal.App.3d 291, 308, 254 Cal. Rptr. 853 (1989), modified (Feb. 17, 1989).

Although there are competing interests to consider when disqualification is at issue, one interest arises above all others. “[Disqualification motions involve' a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility.” SpeeDee Oil, 20 Cal.4th at 1145, 86 Cal.Rptr.2d 816, 980 P.2d 371. But “[t]he paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.” Id. Accordingly, “[t]he important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.” Id.

3.2 Analysis

This Court must exercise its inherent power in furtherance of justice in part to protect important duties like loyalty, and to avoid the appearance of impropriety.

As. noted, loyalty means a lot for litigants, their lawyers and the law generally. “Attorneys have a duty to maintain undivided loyalty to their clients to avoid undermining public confidence in the legal profession and the judicial process. The effective functioning of the fiduciary relationship between attorney and client depends on the client’s trust and confidence in counsel.” Id. at 1146, 86 Cal.Rptr.2d 816, 980 P.2d 371 (citation omitted).

So it’s not surprising that a lawyer’s unfaithfulness is unacceptable. California’s ethics rules generally bar an attorney from representing clients with adverse interests. See Cal. Rules of Prof 1 Conduct 3-310(C). That general rule is true regardless of whether there’s an actual or merely potential conflict between the clients. See id.

Loyalty is a particularly important consideration when a lawyer is thinking of concurrently representing clients with adverse interests. Concurrent representation of clients with adverse interests raises different, and arguably more serious, ethics concerns than successive representation. See Ontiveros v. Constable, 245 Cal. App.4th 686, 700, 199 Cal.Rptr.3d 836 (2016).

This is true even when the attorney is concurrently representing the clients in unrelated matters. That’s why the California Supreme Court held in Flatt v. Superi- or Court that

[i]n evaluating conflict claims in [concurrent] representation cases, the courts have ... imposed a test that is more stringent than that of demonstrating a substantial relationship between the subject matter of successive representations. 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. Indeed, in all but a few instances, the rule of disqualification in ■ simultaneous representation -cases is a per se or “automatic” one.

Flatt v. Superior Court, 9 Cal.4th 275, 284, 36 Cal.Rptr.2d 537, 885 P.2d 950 (1994) (footnote omitted). “[Representation adverse to a present client must be measured not so much against the similarities in litigation, as against the duty of undivided loyalty which an attorney owes to each of his clients.” Unified Sewerage Agency of Wash. Cty., Or. v. Jelco Inc., 646 F.2d 1339, 1345 (9th Cir.1981) (discussing concurrent representation under the old ABA Code of Professional Responsibility).

But if the representations do happen to have something in common, concurrent representation is even less appropriate. In another case, the California Supreme Court remarked that

[t]he most egregious conflict of interest is representation of clients whose interests are directly adverse in the same litigation. Such patently improper dual representation suggests to the clients— • and to the public at large—that the attorney is completely indifferent to the duty of loyalty and the duty to preserve confidences.

SpeeDee Oil, 20 Cal.4th at 1147, 86 Cal. Rptr.2d 816, 980 P.2d 371 (citing Flatt, 9 Cal.4th at 284 n. 3, 36 Cal.Rptr.2d 537, 885 P.2d 950). It is “patently improper” for “attorneys in the same firm to represent adverse parties in the same litigation.” Id. at 1139, 86 Cal.Rptr.2d 816, 980 P.2d 371 (citing Flatt, 9 Cal.4th at 284 n. 3, 36 Cal.Rptr.2d 537, 885 P.2d 950). In these situations, courts don’t typically analyze whether the representations are, substantially related, -as disqualification is automatic for a concurrent conflict of interest even on “wholly unrelated” matters. See Flatt, 9 Cal.4th at 283, 36 Cal.Rptr.2d 537, 885 P.2d 950.

With these considerations in mind, the Court analyzed how this actual, adverse, concurrent representation conflict interfered with the Court’s ability to ensure both the actuality and appearance of justice.

3.2.1 Standing

First, there was a question about standing. “As a general rule, courts do not disqualify an attorney on the grounds of conflict of interest unless the former client moves for disqualification.” Kasza v. Browner, 133 F.3d 1159, 1171 (9th Cir. 1998) (internal quotation marks . omitted) (quoting United States v. Rogers, 9 F.3d 1025, 1031 (2d Cir.1993)). Preliminarily, the reference here to “former client” suggests successive representation. Indeed, requiring a client or former client to complain would limit the ethical review of concurrent representations, since the parties remain aligned with their counsel. SCIF argued that all of the moving defendants lacked standing to bring the motion for disqualification since none had ever been clients of Hueston Hennigan.

But the courts in this state and the parties in, this litigation—including SCIF—have acknowledged that , there are exceptions to the general rule. When there is an ethical breach “so severe that it ‘obstructs the orderly administration of justice,’ the party who finds his claims obstructed has standing” to bring a motion to disqualify. Colyer v. Smith, 50 F.Supp.2d 966, 972 (OD.Cal.1999). Put differently, “where the ethical breach so infects the litigation ... that it-impacts the moving party’s interest in a just and lawful determination of her claims,” the moving party can have standing to bring a motion to disqualify. Id. Thus, it’s not surprising for the California Court of Appeal to observe that “[c]ase law abounds with examples of orders disqualifying counsel that have not been the product of motions by present or former clients.” Kennedy v. Eldridge, 201 Cal.App.4th 1197, 1204, 135 Cal.Rptr.3d 545 (2011).

This was just one more example of the exception. Tantuwaya and the other defendants who joined his motion had standing to disqualify Hueston Hennigan because Hueston Hennigan’s breach so infected this litigation that it impacted Tan-tuwaya’s and the other defendants’ ability to defend themselves against SCIF’s allegations in so many ways.

First, there was discovery, Hueston Hennigan’s conflict of interest had already affected Tantuwaya’s and other moving defendants’ efforts to get discovery from Randall. Tantuwaya stated that discovery on Randall’s connection to the scheme was crucial to his defense. Several defendants, including Tantuwaya, tried -to depose Randall. During Randall’s deposition with Tantuwaya’s counsel, Randall inconsistently invoked his Fifth Amendment privilege against self-incrimination. Although Henni-gan didn’t attend the deposition, it seems likely that Hennigan counseled Randall about the risks involved in talking about his participation in the scheme, and about the importance of asserting the Fifth when asked about the scheme. Of course, the attorney-client privilege protected Henni-gan’s communications with Randall and thus hindered the Court’s ability to tease out the full effects of Hennigan’s advice on Tantuwaya’s discovery efforts.

The conflict had already impacted discovery in other ways too. SCIF responded to interrogatories for documents by invoking the law enforcement privilege, without identifying who held that privilege. But the law enforcement privilege didn’t necessarily extend to SCIF. So was Hueston Henni-gan invoking Randall’s privilege on behalf of Randall’s adversary? Tantuwaya suggested that was the only plausible explanation why SCIF would invoke the law enforcement privilege.

Second, there was the risk of victory lost. Tantuwaya and the other moving defendants could have been robbed of a hard-fought win in this years-long litigar tion because of the conflict. If the third-party plaintiffs had gotten a judgment against Randall in the civil cases, Randall might have successfully moved to have that judgment set aside because he was represented elsewhere by a conflicted attorney. Similarly, if a judgment against SCIF had been obtained in the civil cases, SCIF might have successfully moved to have that judgment set aside because it was represented by conflicted attorneys. And in the criminal case, Randall could have argued that he should be allowed to change his guilty plea because his lawyer’s conflict of interest deprived him of his Sixth Amendment right to counsel.

These and the other concrete, particularized harms discussed elsewhere in this opinion persuaded the Court that Tantu-waya and the other moving defendants had sufficient personal stake to bring the motion for disqualification. Tantuwaya and these defendants therefore satisfied the “irreducible constitutional minimum” of Article III standing. Lujan v. Defs, of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). .

■[12] And even if they somehow didn’t, standing still wouldn’t have presented an issue here. District courts have an “inherent obligation to manage the conduct of attorneys who appear before [them] and to ensure the fair administration of justice.” Colyer, 50 F.Supp.2d at 972' (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43-44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)); see also SpeeDee Oil, 20 Cal.4th at 1145, 86 Cal.Rptr.2d 816, 980 P.2d 371 (discussing a trial court’s inherent authority to disqualify an attorney). This Obligation overrides any “prudential barrier to litigating the rights and claims of thud parties,” like standing. Colyer, 50 F,Supp,2d at 972; cf Woods v. -Superior Court, 149 Cal.App.3d 931, 936,197 CaLRptr. 185 (1983) (emphases removed) (“[Disqualification should be ordered not only where it is clear that the attorney will be adverse to his former client but also where it appears that he might.”). The Court would have honored that obligation by raising the disqualification issue on its own when it found out about the conflict, as it inevitably would have. See, e.g., People v. Peoples, 51 Cal. App.4th 1592, 60 Cal.Rptr.2d 173 (1997) (affirming the ability of a trial court to disqualify counsel on the court’s motion). One way or another, standing wasn’t a problem here. With standing satisfied, the analysis turns to the actuality and adversity of the conflict in the concurrent representation.

3.2.2 The Actual, Adverse, Concurrent Representation Conflict

Here, .there was an actual, adverse, concurrent representation conflict, despite SCIF’s arguments to the contrary. For starters, it was undisputed that Hue-ston Hennigan represented Randall and SCIF at the same time. It was also evident that Randall interests were and are actually adverse to SCIF’s interests, for many reasons.

For example, the existence of an actual, adverse conflict uniquely explained otherwise-puzzling past events in this litigation. The Court found it curious that Hueston Hennigan didn’t file any response to the government’s motion to intervene and modify subpoenas.- That makes sense now, because responding to the motion could have furthered either Randall’s or SCIF’s interests, while undermining the other’s interests.

The existence of an actual, adverse conflict also explained Randall’s involvement in some, but not all, parts of the litigation. The Court found it curious that SCIF didn’t name Randall in the TAC, even though he was named in the third-party complaint and SCIF sued virtually all of the other third-party defendants. When the Court asked Hueston Hennigan why SCIF didn’t sue Randall, a Hueston Hen-nigan attorney responded that “for Randall’s case, he is the one that they know for sure is judgment proof that they already have a judgment against.” Henni-gan agreed.

The Court isn’t convinced that Randall is judgment proof. So what would have caused SCIF to think he was? Many reasons are troubling. For example, did SCIF think Randall was judgment proof because Hennigan knew Randall wasn’t paying his legal bills, as Hennigan’s statement at the hearing that K[t]his is a case, in fact, where we have reason personally to believe that Mr. Randall is judgment proof’ may have suggested? Or did SCIF think Randall was judgment proof because Hennigan or another Hueston Hennigan attorney had access to Randall’s financial information and shared it with the team of attorneys doing work for SCIF? These and many other possible explanations would suggest the attorneys working for Randall were breaching their duty of loyalty and sharing information with the attorneys working for SCIF in a way that improperly benefitted SCIF. The conflict had already put Hue-ston Hennigan in an untenable position regarding disclosure of information. On one hand, the duty of loyalty (likely including the duty to inform) dictated that the Arm use the information available to it to help its clients. On the other hand, the duty of loyalty (and, as discussed later, a few of the waivers in this case) dictated that Hueston Hennigan protect their clients’ confidential information. The bottom line is Hueston Hennigan was in what the California Supreme Court called “a form of zero sum game”—Hueston Henni-gan attorneys had and would continue to have had knowledge that could help one client at the expense of another. Flatt, 9 Cal.4th at 289, 36 Cal.Rptr.2d 537, 885 P.2d 950. . '

And of course, máybe it’s not Randall’s purported inability to satisfy a judgment that caused SCIF to leave Randall out of the TAC. There’s lots of evidence that Randall isn’t judgment proof. Tantuwaya’s counsel did an impressive job hunting down seemingly hidden assets and other evidence that suggest Randall has significant assets, despite assertions to the contrary.

So if. not because he’s judgment-proof, why leave Randall out? The conflict offered many potential explanations. Maybe Hueston Hennigan thought it was clear of ethics rules so long as it didn’t directly sue Randall. Or perhaps Hueston Hennigan was trying to benefit a still-solvent Randall at- SCIF’s expense by keeping him less involved in the civil suit. Another moving defendant, Randy Rosen, offered his own theory as to why Randall wasn’t named.

Hueston Hennigan had notice of 'potential Randall resources that Hueston Hennigan could have secured or pursued for SCIF’s benefit. Equally important, Hueston Hennigan appears to have simply copied wholesale into its Third Amended Complaint all the cross-defendants Drobot, Sr. named in his cross-complaint with the glaring exception of Paul Randall -and Dr. Gross, a 'doctor who had sued Randall for declaratory relief after being sent one of Randall’s extortion demands. If Hueston Henni-gan had sued Dr. Gross, it understood Dr. Gross would likely have brought Randall into the case thereby defeating the artificial construct Hueston Henni-gan was attempting to use so it could represent both the perpetrator Randall and his victim SCIF.

It appears there are two more cross-defendants who didn’t make it from the CC/ FATPC to the TAC, Samuel Vidauretta and what is presumably his associated corporate entity, Prospice Group, Inc. Neither of these defendants have appeared in the case. Their existence doesn’t do much to diminish the viability of Rosen’s theory.

The Court could keep going with examples of the existence of the conflict in the civil side of the litigation, like Randall’s recent deposition. At that deposition, a Hueston Hennigan attorney representing SCIF sought to find incriminating evidence against Randall in this litigation by asking Randall pointed questions about his connection to the fraudulent scheme. Among other things, the attorney asked whether a document reflected “thousands of payments from PSPM 'to Defendant entities, doctors, and to Paul Randall” and whether Randall attended meetings where payments for referring patients were discussed. Hueston Hennigan’s questions supported SCIF’s interests in proving up the fraud, while at the same time directly undermining Randall’s interests in protecting himself from further criminal or civil liability.

Randall was particularly vulnerable to Hueston Hennigan’s attacks at the deposition because there was no criminal counsel in his corner advising him. No Hueston Hennigan attorney appeared at the deposition on Randall’s behalf. That’s perhaps because Hueston Hennigan recognized how obvious the conflict would become when it had attorneys both eliciting incriminating testimony from a deponent and advising that deponent about the impact of that testimony on his criminal case. Randall was left to inconsistently invoke his Fifth Amendment privilege against self-incrimination. Hueston Hennigan’s failure to protect Randall was obvious even then. According to Tantuwaya’s counsel, during Randall’s deposition, “Mr. Randall’s [civil] counsel stated that he probably should have had Mr. Randall’s criminal counsel attend the deposition, based on [the civil] counsel’s lack of familiarity with the manner in which the right against self-incrimination should be invoked.”

The deposition was a preview of the sort of conflicts that would have come up at trial and elsewhere. Tantuwaya submitted emails from SCIF’s current counsel stating that SCIF may use Randall as a witness during settlement negotiations and even at trial. It’s easy to envision SCIF needing Randall to testify but Randall needing to assert the Fifth. What would Hueston Hennigan have done then?

Difficulties arising from the conflict kept cropping up even in unexpected places. There was recently a motion for approving a settlement under California Code of Civil Procedure sections 877 and 877.6. The issue was whether a settlement between SCIF and a co-conspirator in this litigation was made in good faith so that the settling co-conspirator would be protected from indemnity actions from other co-conspirators under California law. This would include Randall, so the Court had to address the issue about whether he was adequately represented. To receive the settlement money, SCIF’s interests were to establish that it was a good faith settlement. But to protect his rights, Randall’s interests were to argue it was not a good faith settlement. A Hueston Hennigan attorney found it appropriate to submit a declaration on behalf of SCIF, but that declaration was contrary to the interests of one of.Hueston Hennigan’s other clients, Randall.

All this conflict existed even ignoring the more important criminal side of this litigation, where among other things the Sixth Amendment right to counsel was implicated. SCIF repeatedly argued that its interests and Randall’s interests were aligned because Randall had plead guilty and his plea agreement required him to cooperate. But under the terms of that agreement, Randall is required to cooperate with the government, not necessarily with SCIF. And even setting that aside, criminal defendants sometimes fail to fully satisfy their obligations to the government and sometimes are dishonest. This possibility for dishonesty is so significant that the model Ninth Circuit jury instructions tells jurors they “should examine the testimony of [cooperating witnesses] with greater caution than that of other witnesses.” Model Criminal Jury Instructions for the District Courts of the Ninth Circuit 4.9.

The plea agreement may have already been breached here. As noted, Rosen is another one of the moving defendants. He argued that a declaration submitted by an expert witness retained by Randall, Albert Luna, showed that Randall had breached his plea agreement. Luna’s declaration asserted that Randall and his girlfriend Christina Hernandez extorted $400,000 from another defendant, Faustino Berna-dett, as “hush money,” in violation of Randall’s plea agreement. The Court need not decide whether these allegations are true—they already illustrate the conflict issues in this case. Would Hueston Henni-gan have argued that Randall hadn’t violated his plea agreement? Or would they have taken a victim’s stance, and vigorously investigated whether Randall did violate the plea agreement?

There’s also sentencing—perhaps the most important moment for a defendant who has pled guilty. Here, the conflict arose in many areas, denying the Court the comfort that comes from adversaries arguing issues, and most importantly, denying adequate protection to a criminal defendant facing the force of the government working to take his freedom. Several relevant things occur at a sentencing hearing.

First, the Court must calculate the guideline range. See U.S. Sentencing Guidelines Manual § IB 1.1 (U.S. Sentencing Comm’n 2015). Determining the applicable offense level is perhaps the most important calculation in this process. Here it is determined largely by the amount of the loss involved. See id. § 2B1.1. The offense level in white collar crimes like this is often very difficult to calculate. Among the questions involved are whether the defendant’s conduct cause monetary harm to others, and if so, who and how much. The range of potential answers to that question here may be somewhat limited by Randall’s plea agreement. But within that range, Randall’s counsel should be unhampered by conflicting loyalties. He wasn’t.

Then there’s the important issue at sentencing of whether the offense level should be reduced because of assistance provided by the defendant to the government. Under section 5K1.1 of the United States Sentencing Guidelines, a federal prosecutor can file a motion asking a court to depart from the guideline range if a defendant provides “substantial assistance in the investigation or prosecution” of someone else. Id. § 5K1.1. In evaluating the defendant’s provided assistance, knowledge of the underlying facts in the civil case would likely be helpful, underscoring the relatedness of Hueston Hennigan’s representations of SCIF and Randall. And while the government and the defendant might argue for a lower sentence, victims of criminal conduct sometimes question whether the criminal defendant has assisted as much as possible and argue for higher sentences. On whose side would Hueston Hennigan have placed itself?

Another issue with sentencing is determining whether a fine against the defendant is appropriate. See id, § 5E1.2. That requires understanding the defendant’s financial condition A defendant’s financial condition is often not adequately presented in the papers submitted, and thus the Court engages in further inquiry. In this inquiry, would Hueston Hennigan have assisted the Court in finding undisclosed assets or excessive spending by the defendant, thus helping its client SCIF, or would it have argued that its client Randall fully and adequately disclosed assets and acted properly?

Yet another issue in sentencing is restitution. This is extremely important to this Court as it focuses on making victims whole and evidences a defendant’s acceptance of responsibility for activity that harmed others. Calculating the amount of restitution in a white collar crime is related to calculating the amount of loss in determining offense level, and both are challenging. See id. § 5E1.1. It is the Court’s statutory obligation to determine the amount of restitution See id. § 5El.l(a). Would Hueston Hennigan have been arguing for a large amount of restitution benefitting its client SCIF, or a small amount of restitution benefitting its criminal defendant client Randall, who is facing decisions that will potentially affect the rest of his life? SCIF argued that none of this was important because Randall has filed for bankruptcy. But these debts likely would not be dischargeable in bankruptcy, especially as part of a criminal sentence.

That brings the discussion back to Randall’s assets and highlights how this was an actual, not potential conflict. Defendants in cases like this often declare bankruptcy. Them creditors often are very skeptical of their financial condition and investigate their assets. As1 noted, that’s what happened here. Tantuwaya, a potential creditor of Randall’s, investigated Randall’s assets. The results of that investigation suggest that at sentencing, serious scrutiny is necessary to determine the cooperation provided, the fine, and the restitution order. Typically, lawyers help the Court get these tough questions right. But here the Court couldn’t count on counsel to make that happen.

Many of the other iterations of this crisis of loyalty implicated Hueston Henni-gan’s duty to inform. If Randall sought advice from Hennigan on whether he should volunteer information to the government about a particular issue that the government didn’t explicitly ask about, did Hueston Hennigan have to pass that information on to SCIF? If Randall sought advice from Hennigan about the potential impact of an inheritance or other asset coming his way, did Hueston Hennigan have to pass that information on to SCIF? This is an issue that the Court dealt with as recently as this week in another case. The Court gave Hueston Hennigan repeated opportunities to provide adequate answers to these critical questions. The firm didn’t.

Trying to represent a criminal defendant while representing his victim seems to present obstacles so obvious and numerous as to defy complete delineation. The Court could go on for pages more. But the Court didn’t even need to look at any of this—it was evident that Randall’s interests were and are directly and actually adverse to SCIF’s interests because Hueston Henni-gan admitted as much. A conflict waiver Hueston Hennigan very recently sent to SCIF stated

[a]s you also know, Randall has been named as a third-party defendant in the Drobot action. Even before Randall was named as a third-party defendant, and as we have discussed with State Fund on multiple occasions, Randall is expected to be a material witness in the Actions, and he also has potential exposure directly to State Fund. Although State Fund decided not to assert direct claims against Randall in the Actions, State Fund could still pursue such claims in a separate action, and we continue to believe that Randall will be a material ■ -witness in the Actions in any event. Of - course, in light of State Fund’s potential claims against Randall and Randall’s alleged role as a co-conspirator in the Pacific Hospital scheme at issue in the Actions, State Fund and Randall may have, and likely do have, directly adverse interests.

3.2.3 Waivability

SCIF argued that all of this conflict could be cured by waivers Randall and SCIF signed. That raised two questions: was this conflict even -waivable, and if so, did the waivers here show informed consent to the conflict by both parties?

First, waivability.

SCIF’s argument that Hueston Henni-gan’s concurrent representation conflict is waivable stemmed in part from Klemm v. Superior Court. In that case, the California Court of Appeal explained that an attorney couldn’t erigage in “[concurrent] representation of conflicting interests if that representation is in conjunction with a trial or hearing where there is an actual, present, existing conflict and the discharge of duty to one client conflicts with the duty to another,” regardless of whether there was informed consent. Klemm v. Superior Court, 75 Cal.App.3d 893, 898, 142 Cal. Rptr, 509 (1977). The court noted that it hadn’t been able to find a single case with a contrary holding. Id. The court continued on to state that

[a]s a matter of law a purported consent to dual representation of litigants with adverse interests at a contested hearing would be neither intelligent nor informed. Such representation would be per se inconsistent with the adversary position of an attorney in litigation, and common sense dictates that it would be unthinkable to permit an attorney' to assume a position at a trial or hearing where he could not advocate the interests of one client without adversely injuring those of the other.

Id. SCIF argued that this language means that the only unwaivable concurrent representation conflicts are in situations where an attorney is representing actually adverse parties at a single contested trial or hearing.

There was a necessary/sufficient fallacy in SCIF’s argument. It’s true that Klemm says attorneys can’t concurrently represent actually adverse clients at a contested trial or hearing, regardless of whether there’s a conflict waiver. But it’s also true that Klémm doesn’t say that this limitation on concurrent representation is limited to contested trials or hearings. SCIF seems to have confused a sufficient condition for unwaivable disqualification—a single contested trial or hearing—with a necessary condition of unwaivable disqualification. Put differently, SCIF seems to have confused the Klemm court carefully addressing its discussion to the facts in front of it with the Klemm court limiting its discussion to just those facts. It’s not surprising (and likely appropriate) that a straightforward 1977 case involving a single lawyer representing a couple in an uncontested divorce didn’t address its discussion to a concurrent representation conflict in a complex, twenty-first century, multi-defen-dant, multi-case, multi-year litigation involving many of Orange County’s finest lawyers and law firms.

SCIF’s interpretation of Klemm made no practical sense either. SCIF seemingly read Klemm to allow concurrent representation of adverse parties by attorneys at all non-trial, non-hearing contested proceedings. Depositions perhaps offer the best example, but other discovery disputes, motion practice, pre-litigation communications, and all sorts of other proceedings could also absurdly escape the purported Klemm concurrent representation rule under SCIF’s logic. SCIF appeared to acknowledge as much at oral argument on the disqualification issue, when the Court asked whether concurrent representation at a deposition was permissible under Klemm.

In other contexts, this might highlight an interesting question. Some commentators, including some in this case, have couched the issue of waivability as turning on whether the actual, adverse, concurrent representation barred by Klemm occurs in the same “lawsuit.” Some have couched waivability as turning on whether the representation occurs in the same “litigation.” And some have couched waivability as turning on whether the representation occurs in the same “matter.” Are there meaningful distinctions between these and related terms when it comes to waivability? Neither the parties nor the Court found appropriate authority addressing this, even though the Court explicitly asked this question in an order it issued before briefing had been finished and the hearing had been held on the Motion for Reconsideration.

Here, the Court didn’t need to delineate the precise answer to this complicated question. The two civil cases and the criminal case were and are effectively the same case for the purposes of this analysis for many reasons. Some reasons have already been discussed. Here are three more.

First, the cases would, under other circumstances, almost certainly all be part of the same case. The only apparent reason the criminal case is at all separated from the civil cases is because of the criminal-civil distinction. If the criminal ease were another civil case instead, it would have been consolidated with the existing civil cases. The claims for civil RICO conspiracy show how the civil/criminal divide is rarely clean-cut. That divide is especially blurry here. Indeed, the recently unsealed criminal information explicitly refers to SCIF as one insurance carrier that received fraudulent bills as part of Randall’s conspiracy. See United States v. Randall, SA CR 12-023-JLS, Dkt. No. 1. The civil cases are similarly related. The Court has repeatedly had to examine close calls regarding consolidation of the two civil cases, first through a motion to amend and then through (an-eventually-withdrawn) motion to consolidate. Then, the issues were difficult largely due to SCIF’s decision to delay adding new parties. But the civil cases and criminal cases are the same litigation for all relevant purposes here.

Second, the Department of Justice’s press release supports that these cases are the same litigation. Three of the defendants mentioned in the press release— Mitchell Cohen, Alan Ivar, and Philip So-bol—were also named as defendants in the TAC. The press release also referred to the entity defendants named in the TAC, including Pacific Hospital of Long Beach, Pacific Specialty Physician Management, California Pharmacy Management, and Industrial Pharmacy Management.

Third, the government’s motion to intervene supports that these cases are the same litigation. For that motion, it was obvious to all parties involved and the Court that the government was investigating the same fraudulent scheme that SCIF alleged existed in its civil complaints. Indeed, in its moving papers, the government explicitly referred to SCIF as one victim of the $580 million healthcare fraud perpetrated by various medical providers. The government also explicitly referred to its criminal action against Randall to support its motion, stating that “[t]he criminal investigation [was] also entitled to administrative deference because it long preceded the civil actions.”

Any argument that this isn’t one litigation for the purpose of a waivability analysis at best adopts form over substance, and at worst invites legal shenanigans that threaten the integrity of our justice system. If an attorney represents one side in a case, can the attorney also represent the other side in the same dispute, if the attorney can finagle the rules of mandatory joinder enough to maintain a separate lawsuit? In other words, is a separate ease number the cure-all for concurrent representation conflicts? Of course not—courts would rightfully admonish attorneys, engaged in this behavior, and the public would rightfully question a system that allowed these things. See SpeeDee Oil, 20 Cal.4th at 1144, 86 Cal.Rptr.2d 816, 980 P.2d 371 (“[JJudges must examine [disqualification] motions carefully to ensure that literalism does hot deny the parties substantial justice.”)

And even if, despite all indications to the contrary, this somehow wasn’t a single litigation for waivability purposes, SCIF’s reasoning still might fall flat. Or rather, Flatt. It’s not clear that SCIF’s broad waiver reading of the Court of Appeal’s decision in Klemm, limiting circumstances of unwaivability, survives the California Supreme Court’s decision years later. In Flatt, the California Supreme Court emphasized the difficulties of concurrent representation, stating that “[e]ven though the [concurrent] 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.” Flatt, 9 Cal.4th at 284, 36 Cal.Rptr.2d 537, 885 P.2d 950. The court noted the possibility of waiver, but stated that the class of cases where waiver of a concurrent representation conflict was. acceptable was “a rare circumstance, typically involving corporate clients.” Id. at 285 n. 4, 36 Cal.Rptr.2d 537, 885 P.2d 950. The court continued on to say that “overcoming the presumption of ‘prima facie impropriety5 [was] not easily accomplished.” Id. It’s significant (and worth repeating) that Flatt is both more recent and from a higher court than Klemm. SCIF has never adequately addressed how its read of Klemm comports with the Flatt ruling. Flatt brings SCIF’s reading of Klemm into question.

Okay, but what if waiver was available here under Klemm, and SCIF’s concurrent representation wasn’t barred by FlatÜ The conflict was still unwaivable under the court’s own inherent authority “to control in furtherance of justice, the conduct of its ministerial officers.” City & Cty. of San Francisco, 38 Cal.4th at 846, 43 Cal. Rptr.3d 771, 135 P.3d 20 (alteration and internal quotation marks omitted) (quoting SpeeDee Oil, 20 Cal.4th at 1139, 86 Cal. Rptr.2d 816, 980 P.2d 371); see Cal. Civ. P. Code § 128. “The paramount concern must be to preserve public trust in the scrupulous administration of justice and .the integrity of the bar.” SpeeDee Oil, 20 Cal.4th at 1145, 86 Cal.Rptr.2d 816, 980 P.2d,371. Even with the clients’ informed consent, courts shouldn’t allow concurrent representation “when the public interest [is] involved or where the likelihood of prejudice to one party is extremely great.” Unified Saverage Agency, 646 F.2d at 1347 (interpreting the old ABA Code of Professional Responsibility).

The Court was confronted with just such a situation here. Hueston Hennigan’s concurrent representation of Randall and SCIF threatened the parties’ and public’s interest in obtaining a just process in ways that even informed, written consent couldn’t fix. The previous review of the conflict and its problems—including its impact on the parties—was extensive in part to provide some of the many examples of this threat. In the complexity of this litigation, problems could arise and greatly harm a party before the problem was even recognized. And managing the problems adds to the complexity of this litigation whose complexity is a challenge even without conflicts constantly lurking.

■ There’s also the’ Court’s own, independent need for adversarial advocates. The combative nature of our legal system is an integral part of the fight for truth and justice. Courts rely on attorneys to probe and attack their opponents’ positions. This process helps courts. It can help parties too. Good lawyers anticipate their opponent’s moves, jabs, and counters, and create appropriate offensive and defensive strategies of their own. But when an attorney represents both sides of a dispute, there’s really just one fighter in the ring shadowboxing. That lack of real opposition provides the lawyer perversé incentives to act in ways contrary to our nation’s notions of fairness and due process. Does the lawyer hold his punches? How can a court know? Without a robust adversary, one side might drop its gloves and put in a sloppy effort, knowing that weaknesses in its own position aren’t going to be exploited. Our system can’t function this way.

And o'f course, even if an attorney conflicted in the way that Hueston Hennigan was here could get informed waivers from its adverse clients, and even if the attorney could concurrently represent those clients’ adverse interests, and even if the Court could trust the attorney’s representations that it was doing so, there would still be the issue of public perception. Lawyers often appropriately delve into the details of the law. What’s the applicable legal standard? Who bears the burden? What’s the appropriate jurisdiction? The law is full of technical, hard questions. But lawyers also often need to step back for a moment and ask the person-on-the-street question: if you gave non-lawyers the facts in front of you and asked their opinion, what would their reaction be? That question isn’t part of any formal legal analysis, but its answer can help illuminate how the public’s interests are impacted by a legal issue. It also often leads.to the right legal solution—the law generally (though not always) skews towards our society’s commonsense notions of fair play and justice. The answer is relevant to the public’s perception of the legal system. ■ •

Here, it appears no one at SCIF thought much about the person-on-the-street question or its answer. The question was posed at the' beginning of this opinion: can a lawyer represent—at the same time, in the same litigation, in the same courthouse—a criminal and his victim? It’s hard to imagine many people saying that this is okay. The Court has an obligation, independent of all of the other legal authority discussed here, “to preserve public trust in the scrupulous administration of justice and the integrity of the bar.” SpeeDee Oil, 20 CaUth at 1145, 86 Cal.Rptr.2d 816, 980 P.2d 371.

Finally, there are the California Rules of Professional Responsibility. They too generally bar an attorney from representing clients with adverse interests, although there’s an exception the Court will discuss in the section immediately following. See Cal. R. of Prof 1 Conduct 3-310(C).

For all these reasons, consistent with Klemm, following Flatt, under the Court’s inherent authority, and in line with the California Rules of Professional Responsibility, Hueston Hennigan’s conflict was un-waivable.

3.2.4 The Waivers

Nonetheless, Hueston Hennigan thought it had found a loophole. While California’s Rules of Professional Conduct generally support the unwaivability of the conflict, they do allow concurrent representation of clients with adverse interests in limited situations if both clients provided informed, written consent. See Cal. R. of Profl Conduct 3-310(C). It’s worth noting that this rule doesn’t overcome all of the other reasons this conflict was unwaivable, and even this rule recognizes that “[t]here are some matters in which the conflicts are such that written consent may not suffice.” Cal. R. of Profl Conduct 3-310 cmt.

But what if Hueston Hennigan had found a loophole big enough to fit this conflict through? What if this was somehow within the ambit of the limited exceptions provided under California Rule of Professional Responsibility 3-310(C)? Did Hueston Hennigan get informed written consent from Randall and SCIF? No.

Determining whether a client provided adequate informed, written waiver is "is obviously a fact-specific inquiry.” Visa U.S.A., Inc. v. First Data Corp., 241 F.Supp.2d 1100, 1106 (N.D.Cal,2003) (internal quotation marks omitted) (quoting Cal. Ethics Op. 1989-115 at IIA-315). Among other things, courts consider

the breadth of the waiver, the temporal scope of the waiver (whether it waived a current conflict or whether it was intended to waive all conflicts in the future), the quality of the conflicts discussion between the attorney and the client, the specificity of the waiver, the nature of the actual conflict (whether the attorney sought to represent both clients in . the same dispute or in unrelated disputes), the sophistication of the client, and the interests of justice.

Id.

Hueston Hennigan sent waivers to Randall and SCIF where the clients purportedly provided informed consent to the conflicted - representation. But there are many things about the waivers that caused the Court to question their .authenticity, accuracy,..'efficacy, and reliability..

Let’s start with the' timeline,

• Tantuwaya filed the motion to disqualify on February 20, 2016, and set the matter for hearing on March 21, 2016. Before this, Tantuwaya had met and conferred with SCIF through its counsel at Hueston Hennigan. Hueston Hennigan didn’t mention that it had gotten waivers from either Randall or ' S'CIF. '

• SCIF filed its opposition on February 29, 2016. In it, SCIF said there were four relevant waivers from SCIF and three from Randall. But SCIF only provided the most recent SCIF waiver, from February 2016.

• Tantuwaya filed a reply on March 7, 2016, pointing out that SCIF had only included one waiver.

• Tantuwaya filed a sur-reply on March 12, 2016, following, Randall’s deposition. According to Tantuwaya, Randall testified that: (1) he only signed two waivers—one with Irell & Manella and one with Hueston Hennigan—not three; (2) Hennigan .told Randall that by. signing the conflict waiver, he