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 98-22
Attorney represented Client in a civil litigation matter. A favorable result for client was obtained by attorney, and the case was closed. During the period of this representation, client asked attorney to look into the matter of a potential lawsuit against contractor. Attorney looked at pictures of alleged damages to client's house. Attorney discussed with client the problems she experienced with this contractor. Attorney did not desire to represent client in the matter, did not receive a retainer or any other funds from client, and returned this file to client.
Contractor some time later contacted Attorney regarding a summons and complaint served on him. After answering these pleadings, attorney received a message from plaintiff's attorney. Plaintiff, who is attorney's former client, objects to attorney continuing to represent contractor in this suit. At this point, attorney recalled the earlier conversation with the former client, and learned his records showed an empty file with the notation, "Returned information to client." Attorney is not aware of any confidences he discussed with former client. Any documents previously reviewed or discussed would be readily available through routine discovery.
QUESTION:
May Attorney continue to represent Contractor in this lawsuit?
SUMMARY:
No, Attorney is required to withdraw pursuant to RPC 1.9 (a), Rule 407, SCACR.
OPINION:
Rule 1.9 (a) states:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or 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.
Since Client asked Attorney to review the file, whether or not confidential information was received by Attorney from Client, continued representation of Contractor by Attorney is precluded by RPC 1.9 (a).