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 00-05
Attorney represented husband and wife in a real estate closing in 1977, having no prior acquaintance. Attorney prepared deed for sale of home and represented them in purchase of new home. No financial information was gained other than preparation of HUD Statement. Attorney prepared other closing documents. In 1998, husband and wife engaged attorney to handle refinancing of their home. Again, no financial information was obtained other than HUD Statement. A mortgage was prepared for them.
In 1999, wife retained attorney to represent her against husband in Family Court for divorce, equitable division, child custody, and support.
Question:
Does attorney have a conflict of interest which would prohibit him from representing wife in the Family Court action?
Summary:
Attorney's representation of wife in Family Court against husband would not be a conflict of interest. The representation is not related to the former representation of husband. The facts do not reveal any confidential or other information gained from the former representation which could be used now in representing wife.
Opinion:
Rule 1.9(a) of Rule 407, S.C.R.P.C., governs this situation. It is:
(a) A lawyer who has formerly represented a client in a matter should not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interest of the former client under the former client consents after consultation. Under COMMENT of the above Rule is:
Information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.
With no overlap of issues or exchange of confidential information, there appears to be no substantial relationship, thus no conflict of interest.