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 93-19
Facts:
Lawyer Bob of medium size law firm represents long time client Business "A" in an action against Business "B" involving the purchase of property and the return of earnest money because of environmental contamination of the property to be purchased.
Subsequently, Lawyer Pete of medium size law firm, at the request of long time client insurance carrier, represented Business "B" in a "slip and fall action" filed by individual plaintiff.
The cases have no similarities. Lawyer Bob and Lawyer Pete have not discussed the merits of the cases nor the strategies of the defenses nor confidential information about Business "B".
Upon discovering the potential conflict, Lawyer Pete terminated his representation of Business "B" with no resulting prejudice to the interest of Business "B".
Question:
Do the Rules of Professional Conduct prohibit Lawyer Bob from continuing his representation of Business "A" against Business "B", now a former client?
Summary:
A lawyer may represent a client in an action against a former client without the former client's consent where, as here, the contested matter is not the same or substantially related.
Opinion:
The following opinion assumes the representation of Business "B" was "terminated" in an ethical manner pursuant to Rule 1.16.
Rule 1.9(a) of the SC Rules of Professional Conduct clearly sets forth the guideline for representation against former clients:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.
This rule sets forth no standards regarding the type or length of representation of the former client, but applies uniformly to all clients formerly represented. While an attorney's ethical duty of preserving client confidences continues after severance of the attorney-client relationship, the attorney owes no duty of continued representation. The attorney-client relationship is severed once the case is terminated or the matter resolved. See Advisory Opinion 88-19.
The Comment to Rule 1.9 provides guidance in the present case by stating that "a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client". The Comment defines the question as "whether the lawyer so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question."
The only relevant issue posed by these facts is whether the suit between Business "A" and Business "B" is one substantially related to the former representation of Business "B". The Committee has relied upon two tests to determine whether matters are "substantially related" for the purposes of Rule 1.9:
1) whether the relationship between issues in the prior and present case are "patently clear"; and
2) whether, during the former representation, an attorney could have acquired information related to the subject matter of the new representation.
See Advisory Opinion 90-34. Under neither approach is the representation of Business "A" substantially related to the former representation of Business "B".
Lawyer Bob is not required to discontinue his representation of Business "A" against his former client, Business "B".