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 99-08
Facts
Lawyer represented Client in a matter brought against Manager and Employer. Manager was a material witness for Employer. The matter was settled, and the case dismissed with prejudice. Manager has now asked Lawyer to represent him in a new action against Employer which is not related to the settled case.
Questions
1. May Lawyer represent Manager in an action against Employer when the new case is not related to the old case?
2. May Lawyer represent Manager in an action against Employer when the new case is related to the old case?
Summary
Lawyer's representation of Manager in an action against Employer will not violate Rule 1.7(a) or Rule 1.7(b) of the Rules of Professional Conduct, as there are no facts indicating that representation of Manager will be directly adverse to Client or that Lawyer has a conflicting responsibility to the Client or Employer. Lawyer may have to obtain the consent of Client after consultation in accordance with Rule 1.9(a), but only if the representation is in a related case and is materially adverse to Client.
Opinion
Rule 1.7(a) provides that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes that the representation will not adversely affect the relationship with the other client and each client consents after consultation.
Therefore, for purposes of this case, the important question arising under Rule 1.7(a) is whether Lawyer's representation of Manager would be directly adverse to the interests of Client. The Committee has not been presented with any facts indicating that Lawyer's representation of Manager would be directly adverse to Client. Therefore, Rule 1.7(a) does not prohibit Lawyer from representing Manager.
Rule 1.7(b) may be more pertinent to this opinion. Rule 1.7(b) provides that a lawyer shall not represent a client if the representation may be materially limited by the lawyer's responsibilities to another client or third party unless the lawyer reasonably believes that his representation of the client will not be adversely affected and the client consents after consultation. See Anonymous Member of South Carolina Bar, 315 S.C. 141, 142-143, 432 S.E.2d 467, 468 (S.C. 1993).
Based on the factual scenario presented, there would appear to be no conflict of interest under Rule 1.7(b). In order for Rule 1.7(b) to be triggered, two conditions must exist. First, Lawyer must have a responsibility to Client or Employer, a third person. Second, it must be found that this responsibility would materially limit the loyalty of Lawyer to Manager in the proposed representation. We have not been presented with any facts indicating that Lawyer presently owes a responsibility to Client or Employer. The matter in which Lawyer represented Client has been settled and dismissed. Therefore, Lawyer's representation of Manager is not simultaneous with his representation of Client. Further, Employer is an adverse party in both the former and present litigation.
We further conclude that Rule 1.7(b) does not prohibit Lawyer from representing Manager in an action against Employer which is related to the old case in which Lawyer represented Client. However, Lawyer should be mindful of the requirements of Rule 1.9(a), which provide that an attorney who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which the other person's interest is materially adverse to the interests of the former client unless the former client consents after consultation. Therefore, to the extent Lawyer proposes to represent Manager in an action which is the same or substantially related to the old case and Manager's interests are materially adverse to Client's interests, Lawyer must obtain Client's consent after consultation.