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 94-19
In 1978 Law Office represented Husband A in a divorce action against Wife (1). In 1994 Husband A sues Wife (2) for a divorce. Law Office has represented Wife (2) in various actions, including a divorce against Husband B.
Question:
Is it a conflict to represent Wife (2) in the divorce action brought by Husband A?
Summary:
This question cannot be answered on the sparse facts presented. However, Rule 1.9 does provide guidelines and considerations that should be given prior to undertaking such representation.
Opinion:
Rule 1.9(a) provides: "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 interest are materially adverse to the interests of the former client unless the former client consents after consultation." It may be unlikely that two separate divorce proceedings occurring 16 years apart would involve the "same or substantially related matter". However, if Law office believes that there is a possibility that the "matter" in the two actions may be the same or substantially related, representation should not be undertaken without the consent of Husband A after consultation with him (or his attorney).
Rule 1.9 (c) provides: "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 except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known, or (2) Reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client." If from its prior representation of Husband A Law Office obtained information which could be revealed or otherwise used to the disadvantage of Husband A in the action involving Wife (2), it would be an impermissible conflict for Law Office to represent Wife (2) in the subsequent divorce action brought by Husband A.