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 91-23
Jack and Jill are husband and wife. Both Jack and Jill are practicing attorneys in the same city. Jack is in private practice, while Jill works for the public defender.
Questions:
1. Is it permissible for Jack to represent a co-defendant of a client represented by Jill?
2. Is it permissible for Jack to represent a co-defendant of a client represented by Jill's office, but not by Jill personally?
Summary:
1. Jack can represent a co-defendant of Jill's client, provided that Jack discloses to his client the fact that Jill represents the co-defendant, he explains the possible consequences of this situation, and he obtains his client's consent to the representation after such disclosure.
2. Jack can represent a co-defendant of a client represented by Jill's office.
Opinion:
1. The first situation is governed by Rule 1.8(i) which provides that "a lawyer related to another lawyer as ... spouse shall not personally represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship." Assuming that the co-defendants have interests "directly adverse" to one another (e.g., each maintaining that the other was perpetrator of a crime, one being a material witness against the other, or the two being co-conspirators) Jack can represent the co-defendant of Jill's client if and only if Jack (1) informs his client of the relationship between Jack and Jill; (2) discloses the possibility for, and the nature and consequences of, conflicts which might arise out of the representation; and, (3) obtains the client's consent to the representation despite the potential for such conflicts.
However, if the relationship between Jack and Jill would "materially limit" and "adversely affect" Jack's ability to represent his client, Rule 1.7(b) would prevent Jack from representing the co-defendant regardless of whether the disclosures and consent require by Rule 1.8(i) were made and obtained. Whether such material limitation or adverse affection exist is a fact specific determination to be made by the lawyer himself. 2. The second situation is also governed by Rule 1.8(i), the comment to which states that, "the disqualification stated in paragraph (i) is personal and is not imputed to members of firms with whom lawyers are associated." Accordingly, no impropriety is presented by Jack representing a client whose co-defendant is represented by Jill's office. In this situation, Rule 1.8(i) would not appear to require disclosure, consultation, and consent. Nonetheless, disclosure of the fact that Jill works with the office representing the co-defendant, while not required, might be advisable. In addition, the "material limitation" and "adverse affection" described in Rule 1.7(b) may also be present and preclude Jack's representation of the co-defendant.
In either situation, Jack and Jill should be careful to refrain from disclosing client confidences to one another or otherwise discussing the relationship between the co-defendants in a manner which might be adverse to the interests of either of them.