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 90-29
Law Firm XYZ represents Mr. and Mrs. Jones. Mr. and Mrs. Jones wish to adopt the unborn daughter of Sally Lou. (Note: From the facts given, we do not know if Law Firm XYZ was involved in establishing the relationship between Mr. and Mrs. Jones and Sally Lou.) Law Firm XYZ has prepared an "Agreement" to be executed by all parties. At some time later (exact time not given) Sally Lou breaches the "Agreement" and refuses to allow the baby to be adopted by Mr. and Mrs. Jones.
It should be noted that in the "Agreement" it states: "However, I know that XXXXXXX is lawyer for the adoptive couple and I have the right to get my own lawyer if I want to." (Note: From the facts given, we do not know if Sally Lou did obtain her own lawyer, if another lawyer was involved in the matter other than Law Firm XYZ, or what Law Firm XYZ may have had to do with obtaining a lawyer for Sally Lou.)
Question:
Can a civil suit be brought by XYZ Law Firm against Sally Lou on behalf of Mr. and Mrs. Jones to collect monies paid by the Joneses to Sally Lou in contemplation of adoption of the baby?
Summary:
Law Firm XYZ may not represent Mr. and Mrs. Jones in action to collect the money paid to Sally Lou. The presence or absence of fraud makes no difference.
Opinion:
The relevant Rule applicable to this situation is Rule 1.9(a) of the Rules of Professional Conduct.
"A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interest are materially adverse to the interests of the former client unless the former client consents after consultation." Under this rule, if XYZ Law Firm represented Mr. and Mrs. Jones and Sally Lou, the firm cannot subsequently represent the Joneses in an action against Sally on the contract. In determining whether a representation exists, the lawyer should consider the extent to which: (1) the firm performs services for both parties, (2) consults with both parties, and (3) both parties appear to rely upon representations and advice given by the firm.