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 02-09
Lawyer is a member of a church. In 1998 the church wanted to undertake a major renovation project. The lawyer was retained to perform a clear title action on behalf of the church, so that it could approach a lending institution for the purpose of securing the necessary funds for the renovation. The lawyer also performed the closing for the church. Subsequent to the closing, the lawyer forwarded a letter to the pastor to thank him for allowing the lawyer to perform the clear title action and closing. The lawyer in the letter specifically ended the attorney/client relationship with the church. However, the lawyer remained a member.
As a member the lawyer was then asked by the pastor of the church to head up the renovation project. The lawyer was one of a committee of seven or more to supervise the renovation project. Neither the lawyer, nor any other member of that committee was paid. During the renovation process, a house was offered as a donation to the church. The church decided that because of the renovation project and other matters it had ongoing, it could not receive the donated house. The lawyer, as a member, offered to receive the house designated for donation to the church, renovate it, sell it, and split the profits with the church. The house was moved from its original location, with all expenses being borne by the lawyer, as a member. The house was sold, and the lawyer subsequently opened a scholarship fund, in the name of the church with the proceeds designated for the church. The lawyer remained a member of the church.
In January, 2002 the lawyer brought a lawsuit for plaintiffs against the church. The basis for the suit was that the remains of a person buried in the church's cemetery were illegally, unlawfully and without the permission of the next of kin, disinterred by the church, its pastor or a trustee board member. Neither of the plaintiffs is a member of the church.
It is noted that the church is hierarchical church. Lawyer is not a deacon, elder or vestryman in the church nor does he currently hold any church leadership positions, nor does he serve on any boards of the church.
Question
Is there a conflict of interest that would disqualify the lawyer from representing his clients in litigation against the church?
Summary
Lawyer may represent clients in this litigation if the lawyer believes that the representation will not be adversely affected by his church membership and if the client consents after consultation.
Opinion
Rule 1.7(b) squarely governs in this inquiry. So long as the lawyer reasonably believes the representation of the clients is not adversely affected by his membership in the church and lawyer obtains his clients' consent after consultation whereby lawyer's connections to the church, past and present, are disclosed, the representation may continue. While the wisdom of suing one's own church is dubious, the committee sees no ethical problem with lawyer undertaking this representation on behalf of plaintiffs, if lawyer follows Rule 1.7(b).
Passing reference should be given to Rule 1.9. However, the facts presented in the inquiry do not suggest that there is any relationship between the matter previously handled by lawyer for the church and the current litigation, nor does it appear that there would be any protected and material information gained from the previous representation that would preclude this representation.