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 94-14
Lawyer 1 is retained by Grandmother upon the death of grandmother's son. Grandmother is appointed personal representative of son's estate. Lawyer 1 also sets up a conservatorship for grandmother for minor grandson (child of the decedent). Grandson is the beneficiary on a life insurance policy insuring the life of son, and an account is set up for grandmother to receive the funds in her capacity as conservator for the minor grandson.
Life insurance company honors an assignment from the funeral home to pay the expenses of son's funeral and pays the balance of the life insurance proceeds to grandmother as conservator for the minor grandson. The assignment from the funeral home is allegedly signed by grandmother, but grandmother denies signing the assignment. Lawyer 1 prepared an accounting on the conservatorship, reflecting the life insurance funds were improperly paid to the funeral home. Grandmother refuses to sign the accounting, and the relationship deteriorates. Lawyer 1 files a motion to be relieved as counsel, citing conflict of interest between grandmother and the minor grandson. At the same time, he requests a hearing on two points: (1) the motion to be relieved as counsel; and (2) asking the probate court to determine the validity of the assignment from the funeral home.
Lawyer 1's law partner, Lawyer 2, wishes to assume representation of minor for purposes of bringing an action on the minor's behalf against the funeral home for fraudulent execution of the assignment. Life insurance company and bonding company have indicated a willingness to pursue legal remedies against the grandmother if it is determined that grandmother did, in fact, execute the assignment.
The Committee is asked to discuss the propriety of the actions by Lawyer 1 and the propriety of the proposed representation by Lawyer 2.
Summary:
Since Lawyer 1 has a conflict of interest that requires his withdraw from representation of grandmother, the disqualification is imputed to his law partner, Lawyer 2, and Lawyer 2 is prohibited from representing the minor in related litigation unless the grandmother consents to the law firm's subsequent representation of the minor. Because the conduct of Lawyer 1 is not prospective in nature, the Committee is unable to offer any opinion as to his conduct.
Opinion:
Since Lawyer 1's withdrawal as counsel for the grandmother is premised upon a conflict of interest between grandmother and the minor, the disqualification which requires the withdrawal of Lawyer 1 also prohibits Lawyer 2 from assuming representation of the minor, unless the grandmother consents.
During the course of his representation of grandmother, Lawyer 1 was privy to information from grandmother that related directly to the validity of the assignment to the funeral home. Since the proposed representation of the minor would be "the same or . . . [a] substantially related matter in which {the minor}'s interests are materially adverse to the interests of the {grandmother}," Lawyer 1 is prohibited from representing the minor unless the grandmother consents to the representation after disclosure. Rule 1.9(a). Since Lawyer 1 practices law in the same law firm, the disqualification of Lawyer 1 is imputed to Lawyer 2, and therefore Lawyer 2 cannot assume representation of the minor without consent of the grandmother after full disclosure. Rule 1.10.
Even if consultation and consent are obtained to permit Lawyer 2 to assume the representation of the minor, the provisions of 1.9(c) regarding use of information gained from grandmother during the firm's representation of her should be carefully observed.
Because the conduct of Lawyer 1 is not prospective in nature, the Committee is unable to offer any opinion as to his conduct.