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 97-45
Lawyer has represented a corporate client for many years. Inquirer calls Lawyer about representing her in a lawsuit. In this very brief telephone conversation, Lawyer determines that Inquirer wants to file several lawsuits against several parties, including Client. Lawyer immediately refers Inquirer to another attorney and terminates the conversation. Lawyer's sole contact with Inquirer is over the telephone. Inquirer paid no consultation fee, forwarded no retainer, and gave no documents to Lawyer concerning this matter.
After several months, Client contacts Lawyer to defend it in a lawsuit. It is a lawsuit filed by Inquirer through the other lawyer recommended by Lawyer. Lawyer answers this suit, not recalling the prior conversation with Inquirer. At deposition, Inquirer testifies she does not recall giving any confidential information to Lawyer. She confirms that Lawyer terminated their conversation and made a referral to the other lawyer after Lawyer discovered that Inquirer wanted to file suit against Client. She also states in the deposition that she did "feel a little uncomfortable" when she discovered that Lawyer was representing Client in this lawsuit.
QUESTION:
Can lawyer continue to represent Client in this suit filed by Inquirer?
SUMMARY:
Inquirer did not have an attorney-client relationship with lawyer, and no conflict of interest exists.
OPINION:
Rule of Professional Conduct 1.7 sets forth the general rule regarding conflicts of interest. Part (a) of the Rule prohibits the representation by a lawyer of clients directly adverse to each other, while part (b) addresses conflicts between the interests of the lawyer and the client. Rule of Professional Conduct 1.9 governs conflicts of interest involving former clients. The threshold questions which must be answered in determining the application of those rules is whether an attorney-client relationship has been created, and if so, whether the Client is a current or former Client.
The facts of this inquiry clearly state that Client is a current client. Lawyer has represented Client for years in an ongoing relationship and represents Client in the litigation at issue. For the purposes of this analysis, Client has a current attorney-client relationship with Lawyer.
The status of Inquirer is equally clear. "Whether an attorney-client relationship exists in a particular situation is a question of fact...." S.C. Bar Ethics Advisory Opinion #91-03 (citing Chavez v. State, 604 P.2d 1341, 1346 (Wyo. 1980)). Although this relationship may be created even without formal recognition of the relationship by Lawyer, and an attorney-client relationship may arise from an initial consultation with a potential client regarding a matter, even when the lawyer is never formally retained, no relationship was created between Inquirer and Lawyer. See S.C. Bar Ethics Adv. Ops. 88-11, 89-19.
In this case, Lawyer immediately referred Inquirer to another attorney. No attorney- client relationship resulted. See In the Matter of Larkin, 466 S.E.2d 355 (1996); In the Matter of Warder, 449 S.E.2d 489 (1994). Inquirer divulged no confidential information, and Lawyer provided no legal advice. See Marshall v. Marshall, 320 S.E.2d 44 (Ct. App. 1984). Inquirer never became a client of Lawyer. Because Inquirer was never a client of Lawyer, Rules of Professional Conduct 1.7(a) and 1.9 do not apply. Further, Lawyer's representation of Client is not materially limited by any responsibility to Inquirer, Rule of Professional Conduct 1.7(b). Notwithstanding Inquirer's misplaced discomfort, there is no conflict of interest, and Lawyer may continue with the representation of Client in the litigation brought by Inquirer.