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 97-32
Attorney represented Corporation three years ago on a collection matter. Attorney , however, has no current professional relationship with Corporation . Further, Attorney believes he learned no confidential information during his work for Corporation .
More recently, a new client has come to Attorney, requesting him to sue Corporation in tort. The events leading to this new client's claim all occurred after Attorney's prior representation had concluded, and the new claim is totally unrelated to Attorney's prior work for Corporation.
Attorney lives and practices in a small county where good legal representation is scarce and has had this sort of thing happen before.
QUESTION
Does Attorney have an ethical conflict solely because at some point in the past be represented Corporation on an unrelated matter?
SUMMARY
Sound management practices (i.e., unequivocal retention and termination letters) will allow a small-town attorney to service the needs of his sometimes overlapping clientele without running afoul of Rule 1.7 and the attorney's duty of loyalty. More importantly, however, the wisdom of Rule 1.9, the comments that explain this rule, and the various cases that have discussed the propriety of opposing former clients advise that an attorney tread cautiously in this area. The informed consent of a former client will often provide protection, but in the end it must be the attorney policing himself who decides whether he can be fair in opposing a former client. The attorney must ask himself, "Are there advantages gained in former representation that it would be unjust to exploit?"
According to the current Rules of Professional Conduct (codified at SCACR 407), especially Rule 1.9, the determination of whether representation counter to a former client's interests is proper will be based on the "substantial relationship test". By this standard, an attorney should inquire as to whether the relationship between the issues resolved in the former representation and the issues presented in the current matter is patently clear. Additionally, the attorney should inquire as to whether or not he could have obtained information in the first matter that would be relevant to the second. South Carolina Bar Ethics Advisory Opinions 93-19 and 90-34. Thus, when faced with an opportunity to oppose a former client, perhaps it is best for an attorney to exercise a healthy distrust for himself.
CONCLUSION
Rule 1.9 does not prohibit representation counter to the interests of a former client; it advises against the choice and gives practitioners a mechanism for correctly deciding: So long as there is adherence to the substantial relationship test, it should provide protection. See Rule 1.3 and Comment (suggesting a writing to more precisely identify the end of representation); see also In the Matter of Brown, ___S.C.___, 450 S.E.2d 586 (1994) (implying, by use of Rule 1.7, that the attorney-client relationship may well extend beyond a single task, especially in instances of ongoing or repeated service). By communicating, without ambiguity, the express termination of representation, a practitioner can avoid any concerns presented by Rule 1.7.