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 00-12
Lawyer represents A in a personal injury action arising out of a multiple rear end collision. Cars 1, 2, and 3 were stopped at a red light. Car 4, allegedly speeding, hit the rear end of Car 3, which in turn hit the rear end of Car 2, which hit Car 1. A and B, the drivers of cars 2 and 3, are friends and came in together to seek Lawyer's representation. Lawyer met with A and B for approximately ten minutes, gathering just enough information to obtain an accident report and execute a contract for representation. Lawyer came away from this meeting with the mistaken impression that A and B were in the same vehicle. Upon obtaining the accident report, Lawyer realized that B was not a passenger in A's car, Car 2, but was the driver of Car 3. Lawyer has not since had any contact with B and has been informed by A that B has obtained other counsel. Lawyer has not confirmed that B is represented by other counsel.
Question:
Does Lawyer have a conflict of interest that prohibits Lawyer from representing A in this matter?
Opinion:
Whether an attorney-client relationship was created between Lawyer and B is a question of law, and the Committee does not offer an opinion on that issue. If the court concluded that no attorney-client relationship was created with B and if B did not disclose any material confidences to Lawyer, then no conflict would appear to have been created by Lawyer's meeting with B. However, given the execution of a representation agreement with B, a court might well conclude that a reasonable party in B's position would believe that an attorney-client relationship had been formed. This opinion, therefore, is based upon the assumption that Lawyer entered into an attorney-client relationship with both A and B.
Because Lawyer has not yet formally withdrawn from the representation of B, the first question to be considered is whether Lawyer could withdraw from representing B in this situation. Under Rule 1.16(a), Lawyer must withdraw if Lawyer has been discharged by B. Although Lawyer has heard from A that B has sought other legal counsel, B has not yet informed Lawyer directly of a discharge. Even if not discharged by B, however, Lawyer must withdraw from the representation of B under Rule 1.16 if continued representation would violate the Rules of Professional Conduct.
A lawyer seeking to represent multiple parties simultaneously in an action is subject to the provisions of Rule 1.7. Lawyer, therefore, could not represent B, without the informed consent of both A and B, if the representation of B would be directly adverse to the interests of A or if the representation of B might be materially limited by Lawyer's responsibilities to A. In the case of a multiple rear end collision in which B's car struck A's car, Lawyer may well conclude that a sufficient likelihood of conflict between the interests of A and B exists to justify Lawyer's withdrawal from representation of B under Rules 1.7 and 1.16.
Having determined that Lawyer may withdraw from the representation of B, the second question is whether Lawyer must also withdraw from the representation of A. Once Lawyer has withdrawn from representing B, the conflict of interest analysis is governed by Rule 1.9. Under Rule 1.9, a Lawyer may not, without the informed consent of B, represent A in the same matter in which Lawyer previously represented B, if A's interests are materially adverse to the interests of B. The Committee does not have adequate information to determine whether the interests of A and B are adverse in this case. If A's interests in this case become materially adverse to B, however, it would appear that, at least without the consent of B, Lawyer's continued representation of A would run afoul of Rule 1.9.
Therefore, it is the Committee's opinion that if the interests of A and B are materially adverse, the fact that Lawyer and B entered into a contract for representation bars Lawyer's continued representation of A under Rule 1.9 after terminating the professional relationship with B unless B consents to the representation.