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 92-02
An attorney represented a woman in an action for separation and child custody which resulted in the father gaining custody of the children. Subsequently, the father hired a babysitter who is the defendant in a case brought by the Department of Social Services for physical abuse of one of the children.
Question:
Can the attorney represent the babysitter in this matter?
Summary:
There is no prohibition of the attorney undertaking such representation, provided that the babysitter's interests are not materially adverse to the interests of the former client and provided that the attorney does not use any information relating to the former representation to the disadvantage of the former client.
Opinion:
The rules of conduct governing a conflict of interest involving a former client are clearly set forth in Rule 1.9 of the South Carolina Rules of Professional Conduct. (See attached SC Bar Advisory Opinion 90-34). If the new client's interests are not adverse to those of the former client and if the attorney will not be using any information relating to the former representation to the disadvantage of the former client then the attorney is free to undertake representation of the new client without risking "the treachery of changing sides" (ABA Formal Opinion 342).