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 95-19
Lawyer A is a sole practitioner. Lawyer S, the spouse of Lawyer A, practices law in a law firm. Lawyer A represents Plaintiff P in a matter in which Lawyer S has been appointed to protect the interests of a minor or incompetent individual.
Questions:
1. Does the appointment of the spouse of the Plaintiff's attorney as guardian of the interests of an incompetent individual create a conflict of interest?
2. Is the added fact that the spouse appointed to serve as guardian happens to be an attorney a relevant consideration?
Opinion:
1. Yes. Rules 1.7(b) and 1.8(i) make clear that a conflict exists. While the plaintiff could conceivably consent after consultation, the minor or incompetent cannot. As noted below, these rules apply to A and S, even though S is technically appointed only as guardian. Consequently, A and S should bring the conflict to the court's attention and ask that one be removed.
2. Yes. Because S is an attorney, S is bound by the Rules of Professional Conduct even when acting as a guardian. S's duties as guardian may even be higher when acting as guardian than when acting as an attorney. As a practical matter, the guardian may be called upon to render legal advice even though technically appointed only as guardian.