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 97-16
Husband and Wife are contemplating a divorce. Lawyer has known wife and her family for more years than Lawyer has known Husband. Lawyer has represented Husband in a child custody matter involving a child from a previous marriage and in an accident case. Wife has asked Lawyer to represent her in her divorce action against Husband.
Questions:
Does Lawyer have a conflict of interest?
Summary:
Rule 1.9(a) of the Rules of Professional Conduct prohibits representation of a new client in a matter that is substantially related to the representation of a former client. If a conflict exists, however, it can be overcome by acquiring the former client's consent after consultation.
Discussion: Rule 1.9(a) of the Rules of Professional Conduct states:
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 interests are materially adverse to the interests of the former client unless the former client consents after consultation.
In the above situation, Lawyer would be prohibited from representing Wife if the contemplated divorce action is "substantially related" to Lawyer's past representation of Husband. This is a question of fact for Lawyer to determine, the Comment to Rule 1.9(a) may provide guidance. If confidential information from a previous action may be addressed in the current action then it's likely that they are "substantially related." If the two matters are substantially related, the conflict can only be overcome by consent of Husband after consultation.
The fact that Lawyer has known Wife longer than Lawyer has known Husband should have no bearing on Lawyer's decision.