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 91-38
This is based upon the facts set out in Ethics Opinion 91-25 and must be read in conjunction with such opinion (copy attached). In that opinion, it was stated that a personal injury attorney could in some situations ethically represent both the plaintiff (injured party) seeking damages from an alleged tortfeasor, and also the health insurer claiming a subrogation interest in the amount of medical bills already paid on behalf of the plaintiff. Such dual representation requires the informed consent of both clients, and such dual representation must cease if the plaintiff later does not want the health insurer paid.
Question:
The question now is whether the attorney can collect a fee from both clients.
Summary:
Subject to the normal requirements that a fee must be reasonable, there is no prohibition of the attorney's collecting a fee from both clients if he is ethically allowed to represent both clients.
Opinion:
This opinion assumes that the requirements of Advisory Opinion 91-25 have been fulfilled, and that the dual representation is permitted in a particular case. As noted above, there are many situations wherein such dual representation is forbidden.
There is no logical reason why, assuming that dual representation is appropriate, collection of a fee from both clients would marginally increase any conflict of interest potential, so long as the fact of dual payment is adequately disclosed to both clients and their consent is obtained.
The reason for this is that when a lawyer undertakes to represent a client, he has the same duties of diligence and loyalty regardless of whether he is being paid. The payment of a dual fee thus does not affect the lawyer's obligations either way as it relates to the conflict of interest issues.
This question is governed by Rule 1.5, which relates to reasonableness of fees. This must be decided on a case-by-case basis.
Thus, there is no absolute prohibition of collecting dual fees.