Can a lawyer who settled an injured passenger's insurance claim later represent the driver in a felony DUI prosecution arising from the same accident, after the former client's written waiver?

Plain-English summary

John, a guest passenger, was badly injured when his girlfriend Jane's car left the road and hit a tree. John hired a lawyer to perfect his claims against the only insurer involved, the provider of Jane's family's liability coverage, and the lawyer settled with that carrier without filing suit. Almost a year later, the State charged Jane with felony driving under the influence causing great bodily injury, based on John's injuries. Jane wanted the same lawyer to defend her. John had nothing to do with the charges, does not believe Jane did anything wrong, wants the same lawyer to help Jane, and (along with Jane and her family) agreed to waive any conflict. The lawyer is a close family friend of both families, and both Jane and John are now adults. The question was whether, after full disclosure and written waivers, the lawyer may represent Jane in the felony DUI case.

The committee answered yes, subject to conditions, applying Rule 1.9(a): a lawyer who formerly represented a client may not, in the same or a substantially related matter, represent another person whose interests are materially adverse to the former client unless the former client gives informed consent confirmed in writing. The committee found it doubtful that Jane's interests are materially adverse to John's; although Jane is prosecuted for acts allegedly causing John's injuries, John opposes the prosecution, and as the former client his view, not the State's belief in Jane's culpability, is what matters. So even though Jane and John would have been adverse had the insurance claim been litigated, their interests do not appear materially adverse in the criminal matter.

Assuming for argument that the interests are materially adverse, the committee noted Rule 1.9(a) clearly permits John to waive the conflict, and the lawyer may rely on John's waiver if John is given appropriate information about its nature and consequences. The committee stressed Rule 1.9(c)'s limits on using a former client's information apply regardless of adversity (Rule 1.9(c)(2)). Because information from the prior representation of John may be relevant to representing Jane, and counsel may not withhold such information from Jane, the lawyer should carefully explain to John that information from the prior representation may be subject to disclosure and that, once Jane's representation begins, withholding it will not be an option; ideally John's written consent should acknowledge this and waive the right to protect that information. Subject to those conditions, the committee believed counsel may represent Jane without an impermissible conflict.

In practice

The opinion holds that, under the South Carolina rules as they stood at the time, the lawyer may take Jane's felony DUI defense. The committee held the former client's (John's) interests likely are not materially adverse because he opposes the prosecution, and that even if they were, Rule 1.9(a) allows John to waive the conflict with informed consent confirmed in writing. It emphasized that Rule 1.9(c) restricts use of John's confidential information regardless of adversity, so the lawyer must disclose to John, before taking the case, that information from the prior representation may have to be disclosed in the criminal matter, and obtain John's waiver of any objection, ideally in the written consent.

Common questions

Q: Are the driver's and the former-client passenger's interests materially adverse?

A: The committee found it doubtful, because the former client opposes the prosecution; as the former client, his view controls the adversity analysis, not the State's belief that the driver was culpable.

Q: Can the former client waive the conflict?

A: Yes. The committee said Rule 1.9(a) lets the former client give informed consent confirmed in writing, and the lawyer may rely on that waiver if the former client is properly informed of its nature and consequences.

Q: What must the lawyer tell the former client about confidential information?

A: The committee said the lawyer must explain that information from the prior representation may be relevant and subject to disclosure in the criminal case, that withholding it from the new client will not be an option, and ideally obtain the former client's written waiver of the right to protect that information.

Background and rules framework

The opinion applies South Carolina Rule 1.9 (duties to former clients), specifically Rule 1.9(a) (no materially adverse representation in the same or a substantially related matter without informed consent confirmed in writing) and Rule 1.9(c), including Rule 1.9(c)(2) (limits on using or revealing a former client's information, which apply regardless of adversity). These correspond to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / SC Rule 1.9(a) (former-client conflicts; informed consent confirmed in writing), Rule 1.9(c), Rule 1.9(c)(2) (use and disclosure of a former client's information)

See also

• SC Bar Ethics Op. 04-07: Sham Consult to Disqualify
• SC Bar Ethics Op. 03-12: Confidences From a Consult
• 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-08-08/
• Original PDF: https://www.scbar.org/media/fkqbub1u/08-08.pdf

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 08-08

Applicable SC Rules of Professional Conduct: 1.9

Facts

John was riding as a guest passenger in a vehicle driven by his girlfriend Jane. The vehicle left the road striking a tree and causing great bodily injury to John.

John asked a lawyer at Law Firm to assist him in perfecting his claims against the insurance companies involved in his accident. The only insurance company involved was the provider of Jane's family's liability coverage. The lawyer was successful in reaching a settlement with Jane's family's insurance carrier, and no formal legal action was ever filed.

Almost one year later, the State of South Carolina served a warrant on Jane for Felony Driving Under the Influence causing great bodily injury, based on the injury to John resulting from the accident. Jane is seeking to be represented in the criminal action by the same lawyer who represented John in his civil action.

John had nothing to do with the charges being filed against Jane and does not believe that Jane did anything wrong on the evening of the accident. John also wishes for the same attorney to assist Jane in her criminal matter and has agreed to sign off on any conflicts of interest, as has Jane and her family. The lawyer has been a close family friend of both Jane and her parents and siblings as well as John, his parents and siblings. Both Jane and John are now over the age of 18.

Question

After full disclosure and written waivers of all conflicts, may the lawyer represent Jane in her Felony DUI case?

Summary

Yes. Full disclosure must include informing John of the potential that information learned in the course of the earlier representation may be relevant to, and subject to disclosure in, the criminal matter. Provided John knowingly waives any objections to such disclosure and the representation, the attorney is free to represent Jane in the criminal matter.

Opinion

When asked to represent a person in a matter related to a prior representation of a former client, counsel must evaluate the ethical propriety of the representation under the standards set forth in Rule 1.9(a), South Carolina Rules of Professional Conduct:

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 interests of the former client unless the former client gives informed consent, confirmed in writing.

Here, it is doubtful that Jane’s interests are materially adverse to John’s. Although Jane is being prosecuted for acts or omissions allegedly causing John’s injuries, John appears to oppose such prosecution. As the former client, it is his opinion that matters; the state’s apparent belief that Jane was culpable is not determinative. Thus, despite the fact that Jane and John would have been adverse parties if the insurance matter had been litigated, it does not appear that their interests are materially adverse with respect to the criminal matter.

Assuming for the sake of argument that Jane’s interests are materially adverse to John’s, Rule 1.9(a) clearly permits John to waive any conflict. Provided John is given appropriate information about the nature and consequences of the waiver, the attorney may rely on John’s waiver as sufficient to dispose of any conflict issues.

In any event, Rule 1.9(c) places conditions and limitations on the use of information gained in the representation of a former client. Rule 1.9(c)(2) makes clear that these limitations apply regardless of whether Jane and John have materially adverse interests.

There is a chance that information gained in the course of counsel’s prior representation of John may be relevant to the representation of Jane. Counsel may not compromise his professional obligations to Jane by withholding such information. Thus, he should carefully explain to John the risk that information gained in the prior representation may be subject to disclosure and that once the representation of Jane begins, withholding such information will not be an option. Ideally, John’s written consent should include acknowledgement of this possibility and waiver of the right to protect such information from disclosure.

Subject to the conditions discussed above, the Committee believes that counsel may represent Jane without creating an impermissible conflict.