Can a lawyer who handled a couple's past real estate closings later represent the wife in a divorce against the husband?

Plain-English summary

An attorney represented a husband and wife, previously unknown to him, in a 1977 real estate closing: he prepared a deed for the sale of their home and represented them in the purchase of a new home, obtaining no financial information beyond the HUD statement and preparing the other closing documents. In 1998 the couple engaged him to handle a refinancing of their home, again obtaining no financial information beyond the HUD statement and preparing a mortgage. In 1999 the wife retained the attorney to represent her against the husband in Family Court for divorce, equitable division, child custody, and support. The question was whether a conflict of interest barred that representation.

The committee applied Rule 1.9(a), which provides that a lawyer 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 that person's interests are materially adverse to the former client without the former client's consent after consultation. Quoting the Comment, the committee noted that information acquired in representing a client may not later be used to the client's disadvantage, but that having once served a client does not preclude using generally known information about that client. Because there was no overlap of issues and no exchange of confidential information between the earlier closings and the divorce, the committee found no substantial relationship and therefore no conflict of interest.

Currency note

This opinion was issued in 2000, before the South Carolina Bar's adoption of the 2005 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 Treat this page as historical context, not current guidance.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: Does handling a couple's real estate closings bar later representing one spouse against the other?

A: The committee concluded no, where the divorce was not substantially related to the closings and no confidential information from the closings could be used against the former client.

Q: What test did the committee apply?

A: It applied Rule 1.9(a)'s "same or substantially related matter" standard, finding no substantial relationship because there was no overlap of issues and no exchange of confidential information.

Background and rules framework

The opinion interpreted South Carolina RPC 1.9(a) (duties to former clients; no representation in the same or a substantially related matter materially adverse to the former client without consent), corresponding to Model Rule 1.9, and its Comment on the use of information acquired during a prior representation.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9(a) / Model Rule 1.9: duties to former clients; substantial-relationship test.

See also

• No sibling opinions yet indexed.

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-00-05/

Original opinion text

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

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 00-05

Attorney represented husband and wife in a real estate closing in 1977, having no prior acquaintance. Attorney prepared deed for sale of home and represented them in purchase of new home. No financial information was gained other than preparation of HUD Statement. Attorney prepared other closing documents. In 1998, husband and wife engaged attorney to handle refinancing of their home. Again, no financial information was obtained other than HUD Statement. A mortgage was prepared for them.

In 1999, wife retained attorney to represent her against husband in Family Court for divorce, equitable division, child custody, and support.

Question:
Does attorney have a conflict of interest which would prohibit him from representing wife in the Family Court action?

Summary:
Attorney's representation of wife in Family Court against husband would not be a conflict of interest. The representation is not related to the former representation of husband. The facts do not reveal any confidential or other information gained from the former representation which could be used now in representing wife.

Opinion:
Rule 1.9(a) of Rule 407, S.C.R.P.C., governs this situation. It is:
(a) A lawyer who has formerly represented a client in a matter should not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interest of the former client under the former client consents after consultation. Under COMMENT of the above Rule is:
Information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.
With no overlap of issues or exchange of confidential information, there appears to be no substantial relationship, thus no conflict of interest.