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 04-04
Facts
Lawyer has two different domestic relations clients. These clients shall be called C1 and C2. The spouses of each client shall be called S1 and S2. S1 and S2 are having an affair with each other. The lawyer learns of this from C2. C1 was previously unaware of this. Lawyer desires to use this evidence both in the case of C1 and the case of C2.
Question
Is the lawyer prevented from dual representation due to the happenstance of the lawyer learning of crucial evidence from one of his clients?
Summary
The lawyer may not be prevented from dual representation due to the mere happenstance of the lawyer’s learning of crucial evidence from one of his clients, so long as neither client objects to the use of the information, thereby creating no conflict of interest under Rule 1.7.
Discussion
The Committee assumes that C1 and C2 consent to the use of the information pursuant to Rule 1.6. There is no evidence that the information was obtained in violation of any duty of confidentiality or through any illegal means. Evidence is not proprietary.
The general rule on conflict of interest is set out in Rule 1.7 of the S. C. Rules of Professional Conduct. Rule 1.7(a) is not implicated because the representation of C1 does not directly adversely impact C2. Indeed, the joint representation helps both C1 and C2. Similarly, Rule 1.7(b) is not violated because the representation of C1 will not materially limit the lawyer’s responsibility to C2 or vice versa. In the event of reconciliation of one marriage, 1.7(b) would still not be implicated.
The lawyer should disclose to both C1 and C2 his simultaneous representation of each client so that each client knows that the lawyer has another client who is interested in the same evidence. The lawyer should disclose to C1 and C2 that each client may be compelled to be a witness in the other client’s case. The lawyer should also disclose to both clients that, in the event of reconciliation between C1 and S1 or C2 and S2, the information could still be used in the other case and that each client and each spouse is subject to being subpoenaed involuntarily in the other case.