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Ethics Advisory Opinion 05-13

April 13, 2005

South Carolina Bar Ethics Advisory Opinion 05-13

RULES 1.9 and 1.13

Date: July 15, 2005

Facts
Lawyer B was employed by a real estate law firm. Two years prior to Lawyer B’s employment with the firm, Lawyer A of the same firm handled a real estate closing for Seller and Buyer. Lawyer A allegedly drafted the deed incorrectly and conveyed another lot owned by Seller. Due to the resulting title problems on that other lot, Seller's marketability of title was impaired, he was assessed various county tax penalties and tax sale redemption fees, and he was forced to seek legal representation to help him cure the title defects.

Seller contacted firm two years after the original closing to complain of the Firm's handling of the transaction, and asked the Firm to make him whole for his damages. Lawyer B, who had then been recently hired as an associate, was assigned to review the file and offer suggestions as to how to resolve the matter. Ultimately, Seller and Firm never came to any resolution, and Lawyer B left the firm shortly thereafter.

Seller wants to hire Lawyer B to represent him in curing the title problems and in pursuing the real estate law firm for damages.

Question
May Lawyer B represent Seller in an action against lawyer's former firm?

Summary
Under Rules 1.9 and 1.13, Lawyer B may not represent Seller in an action against Lawyer B’s former firm, unless the former firm consents after consultation.

Opinion
Lawyer B may not represent Seller in an action against her former firm because, in this instance, her former firm was her client. To represent Seller in an action against her former client would run afoul of Rule 1.9, unless the former firm consents after consultation.

Under the facts presented, Lawyer B, in her capacity as an employee of the firm, clearly provided legal advice on how to resolve the instant dispute. Rule 1.13 states that a “lawyer employed . . . by an organization represents the organization acting through its duly authorized constituents.” Rule 1.13(a), Rule 407, SCACR (emphasis added).

Because Lawyer B contemplates an action against her former client, Rule 1.9(a) would apply, which provides that:

[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.

Thus, because Lawyer B intends to represent Seller in the very same matter in which Lawyer B provided legal advice to her former firm, Lawyer B may not represent Seller unless her former firm consents to such a representation.

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