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 91-03
The families of A and B are former clients of law firm XYZ. Following an automobile accident involving A and B, in which A was killed, B went to the offices of law firm XYZ and spoke to Y's secretary. The secretary advised B to contact his insurance carrier. A's estate later employed X to represent the estate in a claim against B's insurance carrier. Another firm has been hired by the insurer to review the question of liability. A's father has been informed of the situation and has directed law firm XYZ to continue to represent the estate of A. With permission of counsel, XYZ also has explained its role to B, although there is no indication in the facts given that B has consented to that role.
Question:
Do the contacts between law firm XYZ and B create an impermissible conflict of interest?
Summary:
If B's contacts are deemed sufficient to have created an attorney-client relationship, then law firm XYZ may not represent A's estate without the informed consent of B. The existence of an attorney-client relationship is a question of fact that cannot be answered definitively by this Committee. However, upon the facts presented, particularly in the absence of any contact between B and a lawyer in the firm, we believe the better view is that no such relationship was created.
Opinion:
The fact that law firm XYZ previously represented B's family does not alone create an impermissible conflict with the current representation of A's estate against B. Rule 1.9 of the South Carolina Rules of Professional Conduct provides in relevant part only that a lawyer who has formerly represented a client in a matter cannot represent a party with materially adverse interests in "the same or a substantially related matter." There is no indication that the current matter is related in any way to the prior representation of B's family. A more difficult question is whether B's contact with a secretary of XYZ firm regarding the accident precludes the firm from now representing A's estate in that matter.1 Rule 1.7 may prohibit representation of A's estate if that representation would be adverse to another client or would be limited by the lawyer's responsibility to another client or a third person. Whether XYZ law firm can represent A's estate, therefore, depends upon whether B's limited contacts created an attorney-client or fiduciary relationship between B and the firm. An attorney-client relationship does not depend upon the existence of a formal agreement or the payment of a legal fee. See, e.g., North Carolina State Bar v. Sheffield, 326 S.E. 2d 320 (N.C. App. 1985). The South Carolina Court of Appeals has defined a client for purposes of applying the attorney-client privilege as a person who "seeks legal advice by communicating in confidence with an attorney for the purpose of obtaining such advise." Marshall v. Marshall, 320 S.E. 2d 44 (S.C. Ct. App. 1984). Other courts have said "(i)n determining whether an attorney-client relationship existed..., the focus must be on the subjective expectations" of the would-be clients, "such that their individual belief and reliance are safeguarded." Glover v. Libman, 578 F. Supp. 748 (N.D. Ga. 1983). Specific examples of conduct that may give rise to an attorney-client relationship even in the absence of express agreement are "the giving of advice or assistance, or ... failing to negate the relationship when the advice or assistance is sought if the attorney is aware of the reliance on the relationship." Chavez v. State, 604 P.2d 1341 (Wyo. 1980). Whether an attorney-client relationship exists in a particular situation is a question of fact, see Chavez, 604 P. 2d at 1346, and this Committee is unable to provide a definitive conclusion as to how the issue might be resolved. We do note certain factors, however, that should be taken into consideration. B did seek and receive at least some advice from a firm with which B's family had a prior relationship. Depending upon the nature of the prior relationship and the length of time since its termination, B may be found reasonably to have understood that the attorney-client relationship had been renewed by B's contact. The existence of the prior relationship distinguishes this case from typical situation in which a potential client seeks an initial consultation with a stranger law firm. On the other hand, the nature of the advice sought by B is not clear. There is no indication that B requested to see a lawyer,2 and there is no indication that B disclosed any confidential information to the secretary. Perhaps most significantly, apparently no lawyer in the firm was aware even of B's visit and, therefore, certainly no lawyer was aware of any reliance by B upon expectations of an attorney-client relationship. When such expectations became known to a lawyer in the firm, an immediate effort was made to dispel the expectations. Not every initial consultation creates a sufficient relationships so as to disqualify a lawyer from representing another party in the same matter. However, such a result is possible, particularly when some advice has been given in the consultation.
See Va. State Bar Ethics Op. 1039 (Feb. 17, 1988) (consultation by a defendant in a personal injury action precluded the firm later representing the plaintiff in that matter without the defendant's consent); State Bar of Mich. Ethics Op. CI-1153 (Oct. 1, 1986) (once legal advice is given, the lawyer should treat the party as a client). On the facts presented, given the absence of any legal advice to B and of any contact by B with a lawyer in the firm, we favor the view that B's contacts with XYZ law firm were insufficient to disqualify the firm from further representation of A's estate. We caution, however, that our conclusions are based upon an issue of fact that is subject to other interpretation.
1 It is irrelevant that B's contact was with Y's secretary and that X represents A's estate. When the firm is retained, all lawyers are retained. See George v. Caton, 93 N.M. 370, 600 P.2d 822, 827 (1979).
2 While we find it significant that B spoke only with a secretary of the law firm, we are mindful that a lawyer generally is responsible for the conduct of the non-lawyer assistants in the office. See generally Rule 5.3, S.C. Rules of Prof. Conduct. This fact, therefore, does not preclude per se the creation of any responsibility by the firm to B.