If a lawyer mistakenly signed up two drivers from the same crash, can the lawyer keep representing one after dropping the other?

Plain-English summary

A lawyer represented A in a personal injury action from a multiple rear-end collision: cars 1, 2, and 3 were stopped at a light when car 4, allegedly speeding, hit car 3, which hit car 2, which hit car 1. A and B, the drivers of cars 2 and 3, were friends who came in together. The lawyer met with both for about ten minutes, gathering enough to obtain an accident report and execute a representation contract, and came away with the mistaken impression that A and B were in the same vehicle. The accident report revealed that B drove car 3, not a passenger in A's car 2. The lawyer had no further contact with B and was told by A (but had not confirmed) that B had obtained other counsel. The question was whether the lawyer had a conflict barring representation of A.

The committee said whether an attorney-client relationship formed with B is a question of law it would not decide, but, given the executed representation agreement, a court might well conclude a reasonable party in B's position would believe one had formed; the opinion therefore assumed the lawyer had an attorney-client relationship with both A and B. It first asked whether the lawyer could withdraw from representing B: under Rule 1.16(a) the lawyer must withdraw if discharged, and even absent a direct discharge must withdraw if continued representation would violate the rules. Because representing multiple parties is governed by Rule 1.7, and B's car struck A's car, the committee concluded a sufficient likelihood of conflict between A and B may exist to justify withdrawal from B under Rules 1.7 and 1.16.

The committee then asked whether the lawyer must also withdraw from representing A. After withdrawal from B, the analysis is governed by Rule 1.9: the lawyer may not, without B's informed consent, represent A in the same matter in which the lawyer previously represented B if A's interests are materially adverse to B's. Lacking adequate information to determine adversity, the committee concluded that if A's and B's interests are materially adverse, the fact that the lawyer and B entered a representation contract bars the lawyer's continued representation of A under Rule 1.9, after terminating the relationship with B, unless B consents.

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: Did the lawyer form an attorney-client relationship with the second driver?

A: The committee treated that as a question of law it would not decide, but assumed one formed because both drivers signed representation contracts and a reasonable party in B's position might believe a relationship existed.

Q: Can the lawyer keep representing the first driver after dropping the second?

A: The committee concluded that depends on adversity: if the two drivers' interests are materially adverse, Rule 1.9 bars continued representation of the first driver without the second driver's consent.

Q: What rule requires the lawyer to withdraw from the second driver?

A: Rules 1.7 and 1.16: representing multiple parties is governed by Rule 1.7, and Rule 1.16 requires withdrawal if continued representation would violate the rules or if the lawyer is discharged.

Background and rules framework

The opinion interpreted South Carolina RPC 1.7 (concurrent conflicts in representing multiple parties), 1.9 (duties to a former client after withdrawal), and 1.16(a) (mandatory withdrawal), corresponding to the like-numbered Model Rules. Whether an attorney-client relationship formed with the second driver was treated as a question of law.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7 / Model Rule 1.7: concurrent conflicts of interest.
• South Carolina RPC 1.9 / Model Rule 1.9: duties to former clients.
• South Carolina RPC 1.16(a) / Model Rule 1.16: declining or terminating representation.

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-00-12/

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 00-12

Lawyer represents A in a personal injury action arising out of a multiple rear end collision. Cars 1, 2, and 3 were stopped at a red light. Car 4, allegedly speeding, hit the rear end of Car 3, which in turn hit the rear end of Car 2, which hit Car 1. A and B, the drivers of cars 2 and 3, are friends and came in together to seek Lawyer's representation. Lawyer met with A and B for approximately ten minutes, gathering just enough information to obtain an accident report and execute a contract for representation. Lawyer came away from this meeting with the mistaken impression that A and B were in the same vehicle. Upon obtaining the accident report, Lawyer realized that B was not a passenger in A's car, Car 2, but was the driver of Car 3. Lawyer has not since had any contact with B and has been informed by A that B has obtained other counsel. Lawyer has not confirmed that B is represented by other counsel.

Question:
Does Lawyer have a conflict of interest that prohibits Lawyer from representing A in this matter?

Opinion:
Whether an attorney-client relationship was created between Lawyer and B is a question of law, and the Committee does not offer an opinion on that issue. If the court concluded that no attorney-client relationship was created with B and if B did not disclose any material confidences to Lawyer, then no conflict would appear to have been created by Lawyer's meeting with B. However, given the execution of a representation agreement with B, a court might well conclude that a reasonable party in B's position would believe that an attorney-client relationship had been formed. This opinion, therefore, is based upon the assumption that Lawyer entered into an attorney-client relationship with both A and B.

Because Lawyer has not yet formally withdrawn from the representation of B, the first question to be considered is whether Lawyer could withdraw from representing B in this situation. Under Rule 1.16(a), Lawyer must withdraw if Lawyer has been discharged by B. Although Lawyer has heard from A that B has sought other legal counsel, B has not yet informed Lawyer directly of a discharge. Even if not discharged by B, however, Lawyer must withdraw from the representation of B under Rule 1.16 if continued representation would violate the Rules of Professional Conduct.

A lawyer seeking to represent multiple parties simultaneously in an action is subject to the provisions of Rule 1.7. Lawyer, therefore, could not represent B, without the informed consent of both A and B, if the representation of B would be directly adverse to the interests of A or if the representation of B might be materially limited by Lawyer's responsibilities to A. In the case of a multiple rear end collision in which B's car struck A's car, Lawyer may well conclude that a sufficient likelihood of conflict between the interests of A and B exists to justify Lawyer's withdrawal from representation of B under Rules 1.7 and 1.16.

Having determined that Lawyer may withdraw from the representation of B, the second question is whether Lawyer must also withdraw from the representation of A. Once Lawyer has withdrawn from representing B, the conflict of interest analysis is governed by Rule 1.9. Under Rule 1.9, a Lawyer may not, without the informed consent of B, represent A in the same matter in which Lawyer previously represented B, if A's interests are materially adverse to the interests of B. The Committee does not have adequate information to determine whether the interests of A and B are adverse in this case. If A's interests in this case become materially adverse to B, however, it would appear that, at least without the consent of B, Lawyer's continued representation of A would run afoul of Rule 1.9.

Therefore, it is the Committee's opinion that if the interests of A and B are materially adverse, the fact that Lawyer and B entered into a contract for representation bars Lawyer's continued representation of A under Rule 1.9 after terminating the professional relationship with B unless B consents to the representation.