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 98-05
Attorneys A and B have been invited to serve on the board of directors of a local "business incubator" facility that is being set up by the county government and the local branch of a university to create a positive environment for the formation and growth of small, technology-oriented businesses. Tenants of the facility would not be obliged to obtain professional services from board members. Attorney B is the only patent attorney in private practice in the county or adjacent counties.
QUESTIONS:
1. With full disclosure of potential conflicts of interest and consent of all involved, can Attorneys A and B represent clients who are incubator tenants?
2. Should Attorneys A and B abstain from voting on all matters that directly concern their clients?
3. Would it be appropriate for Attorney B to provide a list of South Carolina patent attorneys for use by incubator tenants?
SUMMARY:
1. Although the facts presented in the inquiry have not set forth all potential conflicts for this described situation, it does not appear to present any inherent conflicts that could not be waived by all parties.
2. Abstention should be governed by board policy and bylaws. The attorneys may need to abstain if their duties as board members will conflict with their duties as attorneys for the client.
3. The Committee knows of no circumstances where it would be inappropriate to supply potential clients with a directory of other attorneys who could represent them.
DISCUSSION:
This inquiry does not present any ethical issues specifically addressed by the Rules of Professional Conduct. An attorney should comply with Rule 1.7 regarding conflicts of interest.
Many attorneys serve as board members for a variety of organizations. As a consequence, they are often asked to represent people served by the organization. With full disclosure of potential conflicts and with care not to compromise representation of existing clients, Attorneys A and B are not prohibited from representing tenants of a business incubator just because those attorneys serve on the incubator's board of directors.
Abstention from voting is a matter governed by board policy and bylaws. Of course, an attorney should notify the board when the attorney's decision may be affected by his or her representation of a client.
The Committee knows of no circumstances where it would be inappropriate to supply potential clients with a directory of other attorneys who could represent them.