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 94-15
Law Office A represented Husband and Wife ("H" and "W") in an adoption proceeding which resulted in an Order of Adoption in June, 1992, declaring H & W as parents by adoption of a child. The issues addressed in the adoption proceeding included the fitness of H & W as parents; their financial circumstances and data; their living accommodations; and their personal lifestyles.
In May, 1993, H & W separated; and W retained Law office B which brought an action on her behalf against H for divorce and custody of the child. H has asked Law Office A to represent him in the action filed by W. W does not consent to the representation of H by Law Office A.
Question:
Is Law Office A ethically prohibited from representing H in the divorce and custody action?
Summary:
Rule 1.9 prohibits the representation of H by Law Office A.
Opinion:
Rule 1.9 provides:
"(a) 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 persons' interests are materially adverse to the interests of the former client unless the former client consents after consultation....
...
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) Use information relating to the representation to the disadvantage of the former client...; or (2) Reveal information relating to representation...".
Under this factual situation Law Office A represented both H & W in the prior adoption proceeding. Therefore, the issue is whether the prior adoption action and matters which were involved therein are "substantially related" to the present action for divorce and custody. In the present case the parties separated less than one (1) year from the rendition of the Order of Adoption. It would appear that all of the issues addressed in the adoption proceeding are substantially related to the issue of custody in the present action, and at least some of the issues in the adoption proceeding would be substantially related to the issue of divorce. Therefore, because the interests of H & W are materially adverse in the subsequent divorce and custody action, in order for Law Office A to represent H in that action, W would have to consent to such representation.
Since W is unwilling to consent to the representation H by Law Office A in the subsequent divorce and custody action thereby prohibiting such representation under 1.9 (a), it is not necessary to address the issues presented in 1.9 (c) which may prohibit such representation regardless of consent. However, because of the information given to Law Office A by H and W in the prior adoption proceeding relating to their fitness as parents, financial disclosures, and knowledge of their lifestyles, all of which are relevant to the issues in the divorce and custody action, Law Office A probably would be prohibited from undertaking the representation of H in the subsequent action in any event.