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Ethics Advisory Opinions
UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 00-13Attorney A's firm represents an estate and its personal representative. Attorney A filed an action for formal probate of a will. Attorney B's firm represents the beneficiaries under the will. Attorney B has filed an Answer joining in the prayer for relief. Decedent's heirs, represented by other counsel, have answered and counterclaimed contesting the will. After Attorney B filed his Answer on behalf of his clients, Attorneys A and B began negotiations to merge their law firms. They have agreed to merge in approximately four months, at which time the ongoing litigation is expected to still be active.

Questions:
1.Do Attorneys A or B have a conflict of interest?
2.If so, when did it arise and can it be waived?

Opinion:
Rule 1.7(b) reads: "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
1. The lawyer reasonably believes the representation will not be adversely affected; and

2. The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."

Comment 4 goes on to add " . . . common representation of persons having similar interests is proper if the risk of adverse effect is minimal and the requirements of paragraph (b) are met."

When merger discussions reach a formal stage, the lawyers' interests in the merger and in staying on good terms with each other may materially limit the lawyers' representation of their clients. A lawyer is obliged to not allow his personal interest to interfere in his representation. He must be sure the proposed merger does not cause him to delay work on the file or recommend pursuit of a course of action less aggressive than he would otherwise have proposed. He must be careful not to reveal any confidences of the client during the discussions concerning their respective client base.

Following the merger of their law firms, Attorneys A and B would simultaneously represent the estate, personal representatives and the beneficiaries under the will. There is no inherent prohibition on a lawyer representing both the estate and the prospective beneficiaries. Their representation of these multiple interests, however, must comply with Rule 1.7. As long as the clients of Attorneys A and B are seeking identical relief, there is no conflict of interest, but only the potential for one, and the lawyers may reasonably believe the representation will not be adversely affected. Both sides' consents should be obtained after consultation. If their positions become adverse, there would then be a conflict of interest which could materially interfere with either lawyer's independent professional judgment.