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 95-02
An attorney files a lawsuit on behalf of wife for personal injury, and on behalf of husband for loss of consortium. After suit is filed, the couple experience marital difficulty and decide to seek a divorce.
Question:
Can the attorney who filed the lawsuit continue to represent both the husband and the wife?
Summary:
The Rules of Professional Conduct do not preclude the continued dual representation of both the husband and the wife. However, the lawyer must reasonably believe that the risk of conflict is minimal and that the requirement of disclosure and consent of Rule 1.7(b) are met. Even then, the lawyer should proceed with caution. If the risk of conflict is significant, the lawyer is advised to withdraw from the dual representation.
Opinion:
The comments to Rule 1.7 indicate that paragraph (b) governs the "simultaneous representation of [civil litigants] whose interests may conflict such as coplaintiffs and codefendants." Rule 1.7(b) provides 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 ... unless (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation...." In the context of representing multiple clients in a single matter, Rule 1.7(b)(2) further requires the lawyer to include in the consultation an "explanation of the implications of the common representation and the advantages and risks involved." Inasmuch as the lawyer's clients are seeking a divorce, the potential for a conflict exists. As the comments to Rule 1.7 indicate, "An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims...." Additionally, the value of the husband's claim for loss of consortium could be affected depending upon the grounds for the divorce. The pending divorce may have an effect on the lawyer's continued representation of both husband and wife. However, if the clients consent after consultation pursuant to Rule 1.7(b), then the lawyer may proceed. If a lump sum of money is offered in exchange for release of all claims, the lawyer may be involved in a conflict if the parties do not agree as to how the settlement should be divided. Obviously, the lawyer would then be required to comply with the requirements of Rule 1.8(g) if an aggregate settlement is contemplated.
Notwithstanding the potential conflicts set forth above, there is nothing in the Rules of Professional Conduct to expressly preclude the lawyer from continuing to represent both the husband and the wife if the lawyer reasonably believes the risk of conflicts is minimal and the requirements of Rule 1.7(b) are met.