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 90-42
Lawyer B represented John in a suit by Mary who was represented by Lawyer C. Lawyer B succeeded in opening up the default judgment obtained by Mary against John on the grounds that the default judgment was improperly obtained. Additionally, Lawyer B obtained a judgment against Mary on a counterclaim on John's behalf for abuse of process. Prior to the trial of the matter resulting in the judgment for John and his counterclaim, Lawyer D was substituted as the attorney for Lawyer C and Lawyer C appeared as a witness in the case. Mary has paid the judgment and that matter is ended. Mary now comes to Lawyer B and retains him to sue Lawyer C for malpractice. Lawyer C claims that Lawyer B has a conflict of an unspecified nature which renders him incapable of representing Mary.
Question:
Is Lawyer B prohibited for representing Mary in a lawsuit against Lawyer C if he received confidential information from John protected by Rule 1.6 of the Rules of Professional Conduct?
Summary:
Lawyer B must protect the confidential information he received during his representation of John. Unless John consents to Lawyer B's representation of Mary or unless confidential information received from John has become generally known, Lawyer B may not represent Mary if in the nature of the case he could possibly reveal confidential information received from John.
Opinion:
Rules 1.9 and 1.6 governing conflicts of interest arising from the representation of former clients and the use of confidential information obtained by an attorney during such representation are intertwined. Rule 1.9 provides in pertinent part:
(c) "A lawyer who has formerly represented a client in a matter... shall not thereafter:
(1) Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit with respect to a client, or, when the information has become generally known; or (2) Reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client." Rule 1.6 sets forth the guidelines for attorney's use of confidential information. The rule generally provides that a lawyer shall not reveal information relating to the representation of a client unless a client consents after consultation. Any disclosures by Lawyer B would be governed by Rules 1.6 (a) and 1.9 (c).
Courts have interpreted Rules 1.6 and 1.9 to prohibit an attorney's successive representation of clients with adverse interests because of the danger that he or she will use confidences gained in the prior representation in the present case. In Re Peck, 112 B.R. 485 D. Conn. 1990). See generally, Adelman v. Adelman, 561 So.2d 671 (Ct. App. Fla. 1990).
In the present case, Lawyer B may, by virtue of his representation of Mary and John, reveal to Mary confidence he received from John to prosecute the malpractice claim against Lawyer C. The cases of John and Mary, although different causes of action, would arise from the same occurrence, and hence, information received from John may relate to the prior representation. For instance, Lawyer B may have information form John which Lawyer C failed to request in discovery and which may have impacted the favorable result in John's case against Mary. Lawyer B may inadvertently reveal John's confidences in the successive lawsuit. If such a scenario exists, then Lawyer B should decline to represent Mary because of the potential for disclosure of confidential information.
On the other hand, if John consents to the revelation by Lawyer B of any confidences obtained in the first lawsuit, then Lawyer B could represent Mary. Additionally, if Lawyer B determines that the information has become "generally known," then he could use the information in representing Mary.
Lawyer B should proceed with caution to not reveal any confidential information from John if he decides to undertake the representation of Mary. Lawyer B should also consider Rule 3.7 to determine whether he is likely to be a necessary witness. Rule 3.3 would not be applicable to the present case.
Rule 1.6 (b) allows disclosure of confidential information in very limited situations, which are not present in this case.