Can a lawyer who is a member of a church sue that church on behalf of other clients?

Plain-English summary

The inquiry came from a lawyer who is a member of a church and had previously done legal work for it: a clear-title action and a closing for a 1998 renovation, after which he sent a letter ending the attorney-client relationship while remaining a member. He later helped lead the renovation project as an unpaid committee member and arranged to receive, renovate, and sell a house donated to the church, opening a scholarship fund in the church's name with the proceeds. In January 2002 he brought suit against the church on behalf of plaintiffs (not church members) alleging unlawful disinterment of remains from the church cemetery. He held no leadership, deacon, elder, or board position in the hierarchical church.

The committee concluded that Rule 1.7(b) governs. So long as the lawyer reasonably believes his representation of the clients is not adversely affected by his church membership, and he obtains the clients' consent after consultation in which his past and present connections to the church are disclosed, the representation may continue. The committee observed that while the wisdom of suing one's own church is dubious, it saw no ethical problem with the representation if the lawyer follows Rule 1.7(b).

The committee added a passing reference to Rule 1.9 (duties to former clients) but found the facts did not suggest any relationship between the prior matters the lawyer handled for the church and the current litigation, nor any protected, material information from the prior representation that would preclude this one.

In practice

The committee concluded that, under the South Carolina rule as it stood at the time of the opinion, a lawyer's membership in a church he is suing on behalf of others is a personal-interest conflict governed by Rule 1.7(b): permissible where the lawyer reasonably believes the membership will not adversely affect the representation and the clients consent after consultation disclosing the lawyer's church ties. (This opinion applied the version of Rule 1.7 in effect before South Carolina's 2005 revisions to the Rules of Professional Conduct; verify the current rule before relying on its terms.) The committee found no Rule 1.9 former-client bar on these facts, because the prior church work was unrelated and yielded no material confidential information about the current dispute.

Common questions

Q: Can a lawyer sue a church he is a member of?

A: Yes, under Rule 1.7(b), if the lawyer reasonably believes the membership will not adversely affect the representation and the clients consent after consultation that discloses his past and present church connections.

Q: Does the lawyer's prior legal work for the church bar the new case under Rule 1.9?

A: No, on these facts. The committee found no relationship between the earlier title and closing work and the disinterment litigation, and no protected, material information that would preclude the representation.

Q: Does the lawyer's leadership role in the renovation change the result?

A: The committee noted the lawyer held no deacon, elder, vestryman, or board position and treated the membership and past unpaid involvement as facts to disclose to the clients, not as an automatic bar.

Background and rules framework

The opinion interprets South Carolina RPC 1.7(b) (conflicts from the lawyer's own interests or responsibilities to a third person) and references Rule 1.9 (duties to former clients). These correspond to Model Rules 1.7 and 1.9. The opinion applied the pre-2005 South Carolina formulation of Rule 1.7(b), which allowed a conflicted representation where the lawyer reasonably believes it will not be adversely affected and the client consents after consultation.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7(b) / Model Rule 1.7: conflicts of interest, including from the lawyer's own interests.
• South Carolina RPC 1.9 / Model Rule 1.9: duties to former clients.

See also

• Okla. Bar Ethics Op. 327: Insurance staff counsel and a trial-quota compensation plan

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-02-09/

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 02-09

Lawyer is a member of a church. In 1998 the church wanted to undertake a major renovation project. The lawyer was retained to perform a clear title action on behalf of the church, so that it could approach a lending institution for the purpose of securing the necessary funds for the renovation. The lawyer also performed the closing for the church. Subsequent to the closing, the lawyer forwarded a letter to the pastor to thank him for allowing the lawyer to perform the clear title action and closing. The lawyer in the letter specifically ended the attorney/client relationship with the church. However, the lawyer remained a member.

As a member the lawyer was then asked by the pastor of the church to head up the renovation project. The lawyer was one of a committee of seven or more to supervise the renovation project. Neither the lawyer, nor any other member of that committee was paid. During the renovation process, a house was offered as a donation to the church. The church decided that because of the renovation project and other matters it had ongoing, it could not receive the donated house. The lawyer, as a member, offered to receive the house designated for donation to the church, renovate it, sell it, and split the profits with the church. The house was moved from its original location, with all expenses being borne by the lawyer, as a member. The house was sold, and the lawyer subsequently opened a scholarship fund, in the name of the church with the proceeds designated for the church. The lawyer remained a member of the church.

In January, 2002 the lawyer brought a lawsuit for plaintiffs against the church. The basis for the suit was that the remains of a person buried in the church's cemetery were illegally, unlawfully and without the permission of the next of kin, disinterred by the church, its pastor or a trustee board member. Neither of the plaintiffs is a member of the church.

It is noted that the church is hierarchical church. Lawyer is not a deacon, elder or vestryman in the church nor does he currently hold any church leadership positions, nor does he serve on any boards of the church.

Question
Is there a conflict of interest that would disqualify the lawyer from representing his clients in litigation against the church?

Summary
Lawyer may represent clients in this litigation if the lawyer believes that the representation will not be adversely affected by his church membership and if the client consents after consultation.

Opinion
Rule 1.7(b) squarely governs in this inquiry. So long as the lawyer reasonably believes the representation of the clients is not adversely affected by his membership in the church and lawyer obtains his clients' consent after consultation whereby lawyer's connections to the church, past and present, are disclosed, the representation may continue. While the wisdom of suing one's own church is dubious, the committee sees no ethical problem with lawyer undertaking this representation on behalf of plaintiffs, if lawyer follows Rule 1.7(b).

Passing reference should be given to Rule 1.9. However, the facts presented in the inquiry do not suggest that there is any relationship between the matter previously handled by lawyer for the church and the current litigation, nor does it appear that there would be any protected and material information gained from the previous representation that would preclude this representation.