After a firm unknowingly represented both sides in unrelated matters, can the firm keep suing the contractor for the church when the contractor uses the old conflict as settlement leverage?

Plain-English summary

Two lawyers in one firm, in different cities, ended up on opposite sides of the same person: Attorney A represented a church suing a contractor over poor construction, while months later Attorney B unknowingly defended that contractor in an unrelated workers'-compensation claim. Intra-firm conflict checks missed it, Attorney B settled the comp claim, and the conflict surfaced only afterward, with the contractor now using it as leverage in settlement talks with Attorney A. The firm asked whether Attorney A needed the contractor's consent to keep representing the church, and whether the firm had to disclose its prior representation of the contractor to the church.

On the first question, the committee concluded that the contractor was now a former client, and under Rule 1.9(a) a former client's consent is needed only where the new matter is the same as or substantially related to the prior representation. The church's construction suit was totally unrelated to Attorney B's workers'-compensation defense, so although the interests were adverse, no consent from the contractor was required. The committee declined, under its statement of purpose, to opine on whether the earlier simultaneous representation had itself been a conflict.

On the continuing representation, the committee turned to Rule 1.7(b), which bars representation that may be materially limited by the lawyer's responsibilities to another or the lawyer's own interests. The key question was whether the contractor's pressing of the possible past conflict would interfere with Attorney A's professional judgment and loyalty to the church (citing Opinion 99-08). Finding a great potential for such interference, the committee concluded the church could consent to mitigate the conflict, but that under Rule 1.7(b)(1) the lawyer should not seek consent where a disinterested lawyer would conclude the client should not agree. If the contractor would continue to materially affect the representation, the lawyer should decline to seek consent and withdraw; if the lawyer could extinguish that influence and conclude there would be no adverse effect, consent would suffice.

Currency note

This opinion was issued in 2001, 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 firm need the former-client contractor's consent to keep suing him for the church?

A: The committee concluded no: under Rule 1.9(a), consent is needed only for the same or a substantially related matter, and the church's construction suit was unrelated to the contractor's earlier workers'-compensation defense.

Q: Could the contractor's use of the old conflict create a current problem?

A: The committee concluded yes: if the contractor's pressing of the past conflict materially limits Attorney A's judgment and loyalty to the church, Rule 1.7(b) is implicated.

Q: Could the church consent to the firm continuing the case?

A: The committee concluded the church could consent to mitigate the conflict, but Attorney A should not seek consent if a disinterested lawyer would conclude the church should not agree, in which case the lawyer should withdraw.

Background and rules framework

The opinion interpreted South Carolina RPC 1.9(a) (duties to a former client; the substantial-relationship test) and 1.7(b) (representation materially limited by responsibilities to others or the lawyer's own interests), corresponding to the like-numbered Model Rules. The committee relied on its Opinion 99-08 and on the Wilcox and Crystal treatise for the disinterested-lawyer standard governing consent.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9(a) / Model Rule 1.9: duties to a former client; same or substantially related matter.
• South Carolina RPC 1.7(b) / Model Rule 1.7: representation materially limited by responsibilities to others; consent and the disinterested-lawyer standard.

Other opinions cited:

• S.C. Bar Ethics Advisory Op. 99-08 (material limitation as the trigger under Rule 1.7(b)).

See also

• SC Bar Ethics Op. 04-10: Imputed Conflict, No Screen
• SC Bar Ethics Op. 08-08: Switching Sides After a Waiver
• SC Bar Ethics Op. 05-13: Suing a Former Firm

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-01-04/

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 01-04

Facts
Two lawyers in the same firm practice respectively in City A and City B. Attorney A represents a church against a contractor in a suit over poor construction. Several months later, Attorney B unknowingly defended the same contractor in an unrelated workers’ compensation claim. The conflict went unnoticed through all intra-firm conflict searches and Attorney B has since settled the workers’ compensation claim. The possible conflict has just been discovered and the defendant contractor has begun using the conflict as an aid in furthering settlement negotiations with Attorney A.

Questions

1. Does Attorney A have to seek consent to continue representing the church from the defendant contractor as a former client?
2. Does Attorney A have a duty to disclose its prior representation of the defendant contractor to the church?

Summary
Attorney A does not have to obtain consent from the contractor since the representation of the church in the construction suit is unrelated to the contractor’s workers’ compensation claim. Attorney A’s representation of the church may be adversely affected by the law firm’s previous relationship with the contractor, based on the contractor’s leveraging of this former relationship during settlement negotiations. These actions by the contractor may interfere with Attorney A’s professional judgment in considering alternatives and courses of action on behalf of the church. Attorney A could overcome this conflict of interest by obtaining consent from the church; however, Attorney A must refrain from asking for this consent if the attorney can conclude that it is not in the best interest of the client.

Opinion
From the facts presented, it appears that the contractor is now a former client of the firm under the comment to South Carolina Rule of Professional Conduct 1.3. Rule 1.9(a) states that a lawyer who has formerly represented a client in a matter shall not represent another client in the same or substantially related matter in which the new client’s interests are materially adverse to the interests of the former client, unless the former client consents after consultation. The interests of the church and former client contractor are clearly adverse; however, the church’s suit against the contractor is totally unrelated to Attorney B’s defense of the contractor’s workers’ compensation claim. Therefore, Attorney A does not have to obtain consent from the contractor.

A more troubling issue arises with Attorney A’s representation of the church against the contractor. Under its Statement of Purpose, the Committee cannot comment on the past behavior of any inquirer. As such, the Committee passes on the issue of whether a conflict of interest occurred during the simultaneous representation of the church and the contractor. Now that the firm only represents the church, Rule 1.7(b) comes into play.

Rule 1.7(b) prohibits a lawyer from representing a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client, or to a third party, or by the lawyer’s own interests. The facts indicate that the contractor is using his former relationship, and the possible past conflict of interest, with the law firm in its negotiations with Attorney A. The key question is whether these actions by the contractor will interfere with Attorney A’s professional judgment in considering alternatives and courses of action on behalf of the church. This Committee has previously advised that a key triggering component of 1.7(b) would be whether the lawyer’s loyalty to the client would be materially limited. See Ethics Advisory Opinion 99-08. Under the facts presented, there appears to be a great potential for interference with Attorney A’s loyalty to the church should the defendant contractor persist in pressing the issue of a possible conflict of interest in the past.

The church can consent to continued representation, mitigating the potential conflict of interest in the current negotiations. Nevertheless, as indicated in 1.7(b)(1), Attorney A should not ask for consent when that consent would not be within the client’s best interest. The standard for asking for such consent is whether a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances. ROBERT M. WILCOX & NATHAN M. CRYSTAL, ANNOTATED SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT 65 (2000). Thus, if the contractor will continue to have a material effect on the church’s representation by pressing the issue of a possible past conflict, Attorney A should not ask for this consent since it falls outside of the church’s best interests, and withdraw from representing the church. On the other hand, if the attorney can extinguish the defendant contractor’s influence on the church’s representation and can conclude that there will not be an adverse effect on the representation, then consent would be sufficient to dismiss the conflict of interest.