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 91-37
Attorney A and Attorney B share office space. Both attorneys are incorporated as P.A.s. They have separate telephone lines and letterhead, and share one secretary.
Question:
May Attorney A may file suit against the client of Attorney B?
Summary:
Because Attorney A and B are not members of the same law firm, and do not present themselves to the public as members of the same law firm, the ethical rules do not prevent Attorney A from suing Attorney B's client.
Opinion:
Rule 1.10 (a) provides that:
"While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited form doing so...".
If Attorneys A and B were members of the same firm, Attorney A is precluded from filing suit against Attorney B's client by Rule 1.7.However, Attorneys A and B are not associated in one law firm.
The comment to Rule 1.10 states that "(w)hether two or more lawyers constitute a law firm (for purposes of the Rules of Professional Conduct) can depend upon specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm." Whether they present themselves to the public as a firm, and the terms of any formal agreement between them are relevant to the determination of whether they are a firm. Attorneys A and B do not present themselves to the public as a law firm. They have separate telephone lines and letterhead.
Also important to the determination is whether the attorneys have mutual access to information concerning the clients they serve. Attorneys A and B share one secretary who presumably has access to information concerning the clients of both attorneys. The comment also provides that "(a) group of lawyers could be regarded as a firm for the purposes of the rule that the same lawyers should not represent opposing parties in litigation, while it might not be so regarded for purposes of the rule that information acquired by one lawyer is attributed to the other." Therefore, it is also relevant whether Attorney B's client is a current client or a former client. Rule 1.10 may not prohibit Attorney A's suit against a former client of Attorney B, but may prohibit a suit against a current client of Attorney B.
Regardless of whether Attorney B's client is a current or former client, the better practice would be for Attorney A to fully disclose this matter to his client. The answer to the question presented turns upon whether Attorneys A and B are associated in one firm, which is a question of substantive law. However, Attorneys A and B do not appear to be members of the same firm in this case. Therefore, the ethical rules do not prohibit Attorney A from filing suit against Attorney B's client.
Because attorneys may share nonlawyer assistants, each must insure compliance with Rule 5.3.