Does a lawyer who sits on a quasi-governmental board have a conflict suing a company when others have sued that board over the same facts?

Plain-English summary

A lawyer represented Litigant One in a complaint against a private company while also serving on the Board of Trustees of a quasi-governmental entity. Other litigants (Two and Three), suing the same company over the same circumstances, had also named the lawyer's board as a defendant. The lawyer and co-counsel believed there was no basis for Litigant One to sue the board and that advocacy for Litigant One was consistent with defending the board. A former employee of the company, a defendant in all three suits, was deposed in a joint deposition meant to be operative across the suits; the lawyer did not participate, but co-counsel did. The questions asked whether the joint deposition or the co-litigants' suits against the board disqualified the lawyer from representing Litigant One against the company.

The committee concluded that participating in a jointly conducted deposition, or one for use in multiple cases, did not create a conflict on these facts, because the deposition was not of another client or a client's representative and no confidential client information was being obtained that could be used against another. That conclusion presupposed the lawyer could not sue the board because of the trustee position. The committee then applied Rule 1.7(b): a lawyer may not represent a client if the representation may be materially limited by the lawyer's responsibilities to a third person or by the lawyer's own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation.

Because the actions of Litigants Two and Three suggested Litigant One could plausibly have a claim against the board, the committee found it conceivable that the lawyer's representation of Litigant One could be materially limited by the lawyer's responsibilities to the board. The committee concluded that Litigant One would need to consent after consultation and full disclosure of that potential limitation, and that the lawyer could not ask for consent if the lawyer believed a disinterested attorney would conclude the client should not agree to the continued representation.

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 a joint deposition shared across cases create a conflict for the lawyer?

A: The committee concluded no on these facts, because the deposition was not of another client and yielded no confidential client information that could be used against another.

Q: Can the lawyer keep representing the client given the trustee role?

A: The committee concluded the lawyer could, but only if the client consented after consultation and full disclosure under Rule 1.7(b), because the trustee responsibilities could materially limit the representation.

Q: When can the lawyer not even ask for consent?

A: The committee stated the lawyer cannot seek consent if the lawyer believes a disinterested attorney would conclude the client should not agree to the continued representation.

Background and rules framework

The opinion interpreted South Carolina RPC 1.7(b) (conflicts of interest where representation may be materially limited by the lawyer's responsibilities to a third person or the lawyer's own interests; reasonable belief plus client consent after consultation), corresponding to Model Rule 1.7, and its Comment on loyalty and the likelihood and materiality of a conflict.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7(b) / Model Rule 1.7: conflicts of interest; material limitation and client consent after consultation.

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-00-07/

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 00-07

Lawyer represents Litigant One in a complaint against Private Company. Lawyer serves as a member on the Board of Trustees for a quasi-governmental entity.

Other lawsuits arising from the same circumstances that precipitated Litigant One's suit have been filed against the private company by Litigants Two and Three; however, Litigants Two and Three have made as a party defendant the Board of Trustees of the quasi-governmental entity on which Lawyer serves.

Lawyer has associated co-counsel, and both believe there is no basis for Litigant One to bring suit against the quasi-governmental entity. Lawyer believes his position as advocate for Litigant One is fully consistent with a defense position of the quasi-governmental entity.

A defendant in all three suits, a former employee of Private Company, has been deposed in a joint deposition meant to be operative in all suits against the former employee and against Private Company. Lawyer did not participate in the joint deposition, but his co-counsel did.

Questions:

1. Does a jointly-conducted deposition, solely as a result of counsel cooperating to schedule the deposition and agreeing it can be used in several cases, constitute an event which places Lawyer in an adverse position with the quasi-governmental entity on which Lawyer serves as a trustee?
2. Does conducting a deposition for use in multiple cases constitute sharing information with the other litigants, who are adverse to the quasi-governmental entity, such that it disqualifies Lawyer from pursuing claims against the Private Company on behalf of Litigant One?
3. If the other litigants have sued the quasi-governmental entity, then does that alone disqualify Lawyer from the litigation against Private Company on behalf of Litigant One, because Litigant One, using another attorney, might also elect to sue the quasi-governmental entity?
4. Assuming Litigant One consulted other counsel and elected to initiate suit against the quasi-governmental entity over the same set of facts, would such a suit, if filed, prevent Lawyer from representing Litigant One against Private Company?

Summary:
Participation in a jointly conducted deposition or deposition for use in multiple cases does not create a conflict for the lawyer in the situation presented, provided the lawyer has complied with the general requirements of Rule 1.7.
The Lawyer must determine whether his or her position as trustee of the quasi-governmental entity may materially limit his or her representation of Litigant One. Since Lawyer and co-counsel reasonably believe that representation of Litigant One will not be adversely effected by Lawyer's relationship to the quasi-governmental entity, Litigant One must consent after consultation. Lawyer cannot ask Litigant One to consent if Lawyer believes that a disinterested attorney would conclude that Litigant One should not agree to the continued representation under the circumstances.

Opinion:
From the facts presented, the participation of the lawyer in a jointly conducted deposition or a deposition to be used in multiple cases does not create a conflict for the lawyer. The deposition mentioned is not being taken from another client or representative of another client. No confidential information is being obtained from a client which could be used against another. This opinion presupposes that Lawyer cannot sue the quasi-governmental entity as a result of Lawyer's being on its Board of Trustees. Rule 1.7 (b) provides: "A lawyer will not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyers own interest unless:
(1) The lawyer reasonably believes that representation will not be adversely affected; and

(2) The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation will include explanation of the implications of the common representation and the advantages and risks involved."

The comments to Rule 1.7 provide:
Loyalty is an essential element in the lawyer's relationship to a client . . . Loyalty to a client is impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyers other responsibilities or interest . . . The conflict in effect forecloses alternatives that would otherwise be available to the client . . . The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclosure courses of action that reasonably be pursued on behalf of the client.

From the actions of Litigants Two and Three, it appears that Litigant One could at least plausibly have a claim against the quasi-governmental entity where Lawyer sits on the board. Since it is conceivable that Lawyer's representation of Litigant One could be materially limited by Lawyer's responsibilities to the quasi-governmental entity, Litigant One would need to consent to representation after consultation and full disclosure of this potential limitation pursuant to Rule 1.7(b).