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 91-33
Attorney represents Mary in a divorce action against Joe. Mary alleges Joe has engaged in adulterous conduct. Subsequently, while Mary's divorce action is pending, Barbara retains attorney to represent her in a divorce proceeding. It is soon discovered that Barbara is Joe's alleged paramour.
Questions:
1. Can attorney continue to represent both Mary and Barbara? 2. Would it matter if attorney was able to conclude Mary's case before coming actively involved in Barbara's case?
Summary:
The attorney cannot continue to represent both Mary and Barbara as there is a built-in conflict of interest. To attempt to conclude Mary's case before becoming actively involved in Barbara's would be a failure to zealously represent Mary and be in direct conflict to Mary's interest.
Opinion:
Rule 1.7 states that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client. Rule 1.7 goes on to give various exceptions. None apply in this case.
Rule 1.6 states that a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.
Rule 1.3 states that a lawyer shall act with reasonable diligence and promptness in representing a client. The comment to this rule states that, "a lawyer should act with commitment and dedication to the interest of the client and with zeal and advocacy upon the client's behalf." In this case, where the lawyer has received the information that Barbara was Joe's paramour, then by Rule 1.6 the lawyer could not use this information in Mary's case against Joe as this revelation would be injurious to Barbara's case. Furthermore, under Rule 1.7 the lawyer would have a direct conflict with his representation of Mary by failing to reveal this information in her case. Failure to reveal the information in Mary's case would be a violation of Rule 1.3 to represent a client with zeal. Even if the lawyer received the information of the allegations that Barbara was Joe's paramour from an outside source, he would still have a conflict. To reveal the information in Mary's case may very well bring this allegation to the attention of Barbara's husband, assuming the lawyer did not hear it from him. Thus, the lawyer would be violating Rule 1.6, Rule 1.7, and Rule 1.3.The lawyer should terminate his representation of both Mary and Barbara on the basis of a conflict of interest. Representation of either Mary or Barbara would be materially limited by the lawyer's responsibility to the other and consent would not cure the problem.