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 98-32D
Plaintiff's attorney left his former law firm, taking a file with him, by consent. At the time of settlement, client asks attorney to assist client in filing a grievance against the former firm or in seeking a lawyer who will handle a malpractice action against the former firm.
QUESTION:
What are the attorney's duties?
SUMMARY:
Because of Lawyer's actual or potential conflicts of interest raised by lawyer's employment by the former firm at the time the grounds for the alleged grievance arose, lawyer:
(a) cannot represent client in a malpractice action against the former firm nor assist in the filing of a grievance but must provide client with the name, address and telephone number of the Commission on Lawyer Conduct; and
(b) could recommend a specific lawyer to handle, though the prudent lawyer would refrain from doing so. Lawyer could refer client to a recognized lawyer referral service.
OPINION:
Rule 2.1 provides that the lawyer must exercise independent professional judgment and render candid advice. Consequently, if client inquires about the possibility or method of filing a grievance, attorney must, at a minimum, provide the name, address and telephone number of the Commission on Lawyer Conduct.
However, Rule 1.7(b) prevents lawyer from taking any further action. The rule provides that the lawyer should not represent a client if the representation of that client may be materially limited by the lawyer's own interests. In this case, lawyer's association with the former firm at the time the alleged grievance arose suggests that lawyer could very well be one against whom the grievance may be directed. Furthermore, it is likely that lawyer may be a witness in any grievance proceeding or malpractice action against the former firm. Rule 3.7(a) states that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. The combination of the lawyer's potential conflict along with the likelihood of his being a necessary witness preclude lawyer from reasonably invoking the exception of Rule 1.7(b)(1).
The potential conflict noted above is also sufficient to preclude a lawyer from making a specific referral to another lawyer as any such referral could be suspect if the lawyer's own interest may be affected. Lawyer could refer client to a recognized lawyer referral service.
Though it is not ethically improper to refer the client to a lawyer, the prudent lawyer would refrain from doing so.