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 94-01
A lawyer for a municipality has been recently named in a lawsuit, in his official capacity, together with the municipality.
Question:
May one of the partners in the law firm of the attorney for the municipality represent both the attorney for the municipality as well as the municipality itself in the pending litigation?
Summary:
Although a possible conflict of interest does not preclude the simultaneous representation of co-defendants in litigation, such representation may not be undertaken if the lawyer believes that his own interests will have an adverse effect on the representation of either client.
Opinion:
Although the inquiry presented to the committee does not specify whether or not the attorney represents the municipality in specific categories or generally, this opinion presumes general representation. It would appear there is significant likelihood of conflicting positions in the litigation. Consequently, Rule 1.7(b) applies herewith by virtue of the simultaneous representation which could possibly result in a conflict. Rule 1.7(b) states that:
A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
1) the lawyer reasonably believes the representation will not be adversely affected; and 2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
Because this Rule is imperative, both exceptions must be satisfied before the law firm of the attorney for the municipality may engage in the dual representation.
From the question presented, it would appear that an impermissible conflict of interest may well exist if dual representation is undertaken. Due to the unpredictable nature of litigation, it is impossible to determine if a conflict will actually occur.