Can a lawyer who represents a county in appellate and tax matters also sue the county's department of social services on behalf of other clients?

Plain-English summary

Attorney A was retained by a county to represent it in appellate matters and associated tax issues, with no role in trial proceedings and no responsibility for social services cases. Clients B and C asked Attorney A to represent them in a federal civil rights claim against the county's department of social services, and the inquiry asked whether he could take that case.

The opinion concluded that he could, with the consent of both the county and Clients B and C. Generally a lawyer may not sue his own client in another matter even though the causes of action are unrelated, citing Rule 5.1(a). Here, however, Attorney A might reasonably conclude that his representation of the county in its appellate matters would not necessarily be adversely affected by prosecuting a claim against the department of social services for Clients B and C. If that is his conclusion, and if both his current and prospective clients consent after full factual disclosure, there is no ethical impediment to accepting the case, citing CPR 179.

Currency note

This opinion was issued in 1992, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer sue a current client on an unrelated matter?

A: Generally no. The opinion held that under Rule 5.1(a) a lawyer may not sue his own client in another matter even when the causes of action are unrelated, absent the conditions described.

Q: What lets the lawyer take the case against the county's DSS here?

A: The opinion held the lawyer may proceed if he reasonably concludes his county representation would not be adversely affected and both the county and the new clients consent after full disclosure.

Q: Whose consent is required?

A: Both the existing client (the county) and the prospective clients (B and C), after full factual disclosure.

Background and rules framework

The opinion applied North Carolina Rule 5.1(a), barring a lawyer from suing his own client absent the client's informed consent (corresponding to Model Rule 1.7's prohibition on direct adversity to a current client). The analysis turns on the lawyer's reasonable judgment that the existing representation would not be adversely affected and on obtaining consent from all affected clients.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest; direct adversity to a current client)
• North Carolina Rule 5.1(a) (suing one's own client)

Other opinions cited:

• North Carolina CPR 179 (suing a current client in an unrelated matter)

See also

• NC Ethics Op. RPC 130: employment of a board member's law firm
• NC Ethics Op. RPC 143: city council member as client

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-131/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

Attorney A is retained by the county to represent the county with regard to matters in the appellate division of the general court of justice and tax issues associated with such appellate matters. Attorney A has not been employed to represent the county in any trial proceedings. Attorney A has no responsibility of any kind with regard to social services cases.

Clients B and C have approached Attorney A and requested that he represent them in regard to their federal claim against the county's department of social services for an alleged violation of their civil rights.

May Attorney A represent Clients B and C against the county's department of social services?

Opinion:

Yes, with the consent of both the county and Clients B and C. Generally speaking, a lawyer may not sue his or her own client in another matter even though the subject causes of action are unrelated. Rule 5.1(a). In the instant situation, however, Attorney A might reasonably conclude that his or her representation of the county in its appellate matters would not necessarily be adversely affected by his or her prosecution of a claim against the county's department of social services on behalf of Clients B and C. If that is Attorney A's conclusion, and if both his or her current and prospective clients consent after full factual disclosure, there is no ethical impediment to Attorney A's acceptance of the case against the department of social services. See CPR 179.