A lawyer drafts a custody-modification agreement for two divorced parents; before filing, one parent revokes consent while the other (who paid) insists on filing. May the lawyer file the pleadings?

Plain-English summary

After Party A and Party B divorced with custody terms, they agreed to modify the arrangement. Party A approached the lawyer to draft a modification agreement and related pleadings for the family court, and Party B paid for the work. There was no written agreement defining the scope of representation or how potential conflicts would be handled. After the documents were prepared but before filing, Party A told the lawyer he or she no longer consented to the modifications; Party B urged the lawyer to file anyway. The lawyer asked whether there is a conflict now that the parties disagree, whether the lawyer must file the pleadings as agreed when retained, and whether the lawyer must refrain from filing given Party A's withdrawn consent.

The committee concluded that whether the lawyer has a conflict depends on whether an attorney-client relationship was created with Party B, but in either case the lawyer should not file the pleadings. It declined to opine on the propriety of the lawyer's initial decision to undertake the representation or how it was undertaken, noting it does not opine on past conduct, and cautioned (citing Rules 1.7 and 1.8(f)) that a lawyer contemplating representation of multiple parties with any possibility of future conflict should evaluate the risks and ensure all potential clients are well-informed. Party B appears to have been given an expectation that an attorney-client relationship was created, but whether one formed is a matter of substantive law the committee could not resolve on these facts.

If a relationship with Party B was created, the facts reflect a plain conflict: when the parties' interests diverged after Party A's change of heart, the lawyer became responsible for two clients with opposing positions in a single matter, a conflict under Rule 1.7(a)(1) exacerbated by their conflicting demands about filing. In that case the lawyer should take no further action for either party and should immediately withdraw from representing both under Rule 1.16, taking steps to mitigate harm to both under Rule 1.16(d). Even if Party B is not a client, Party A became a client by engaging the lawyer to draft the documents and was entitled to expect the lawyer to act in his or her interest and follow instructions on the subject of the representation. Filing the pleadings as Party B requested conflicts with Party A's express instructions; Party A's change of heart, though contrary to the original purpose, does not entitle the lawyer to disregard Party A's current wishes, because in undertaking the representation the lawyer assumed the risk that Party A's intentions might change. Filing over Party A's objection is not ethically permissible under Rule 1.2(a). The committee advised that engagement and fee agreements should be in writing and should clearly specify who is and is not a client whenever a misunderstanding is possible.

In practice

The opinion holds that, under the South Carolina rules as they stood at the time, the lawyer must not file the custody-modification pleadings once Party A revoked consent. If an attorney-client relationship formed with Party B, the diverging positions create a Rule 1.7(a)(1) conflict and the lawyer should withdraw from representing both parties under Rule 1.16, mitigating harm under Rule 1.16(d). If only Party A is a client, Rule 1.2(a) bars filing over Party A's express instructions, because the lawyer assumed the risk that the client's intentions might change. The committee added that engagement and fee agreements should be in writing and should identify who is and is not a client.

Common questions

Q: Can the lawyer file the agreed pleadings because the other party paid and still wants them filed?

A: No. The committee concluded the lawyer should not file the pleadings in either scenario, and that filing over Party A's objection is not ethically permissible under Rule 1.2(a).

Q: Is there a conflict of interest?

A: It depends on whether an attorney-client relationship formed with the paying party (a question of substantive law the committee did not resolve). If it did, the diverging positions create a conflict under Rule 1.7(a)(1).

Q: What should the lawyer do if both parties are clients?

A: Take no further action for either party and immediately withdraw from representing both under Rule 1.16, taking steps to mitigate harm to each under Rule 1.16(d).

Q: Does Party A's change of heart let the lawyer ignore the new instruction?

A: No. The committee said the lawyer assumed the risk that Party A's intentions might change when undertaking the representation, so Party A's current wishes control under Rule 1.2(a).

Background and rules framework

The opinion interprets South Carolina Rule 1.2(a) (allocation of authority; following the client's decisions on the objectives of representation), Rule 1.7(a)(1) (concurrent conflict of interest), Rule 1.8(f) (compensation from a third party), and Rule 1.16 including 1.16(d) (declining or terminating representation and mitigating harm on withdrawal), all corresponding to the like-numbered Model Rules. The analysis turns on the unresolved question whether an attorney-client relationship formed with the paying, non-objecting party.

Citations and references

Rules of Professional Conduct:

• MR 1.2 / SC Rule 1.2(a) (following the client's decisions on the objectives of the representation)
• MR 1.7 / SC Rule 1.7(a)(1) (concurrent conflict between two clients in a single matter)
• MR 1.8 / SC Rule 1.8(f) (accepting compensation for representing a client from a third party)
• MR 1.16 / SC Rule 1.16, 1.16(d) (withdrawal; steps to mitigate harm to the client)

Other opinions cited:

• John Freeman, Ethics Watch: Conflicts of Interest: Multiple Ways to Lose, 7 S.C. Lawyer 11 (March/April 1996)

See also

• SC Bar Ethics Op. 08-04: GAL, GAL's Counsel, Not Child's
• SC Bar Ethics Op. 04-07: Sham Consult to Disqualify
• SC Bar Ethics Op. 05-01: Former Prosecutor's Civil Case

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-08-12/
• Original PDF: https://www.scbar.org/media/wbbd2swx/08-12.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 08-12

Applicable SC Rules of Professional Conduct: 1.2, 1.7, 1.8, 1.16

Facts

Party A and Party B obtained a divorce, the terms of which included child custody arrangements. Thereafter, the parties reached an agreement to modify their child custody arrangements. Party A approached Lawyer for the purpose of drafting an agreement and related pleadings to submit to the family court. Party B paid Lawyer for the legal work in connection with preparing the documents. It does not appear that there was any written agreement establishing the scope of the representation or the means of handling potential conflicts.

After the modification agreement and related pleadings were prepared but before they were filed, Party A informed Lawyer that he/she no longer consented to the modifications. Party B has urged Lawyer to file the documents anyway.

Questions

1. Does Lawyer have a conflict of interest now that the parties are not in agreement?

2. Does Lawyer have an obligation to file the pleadings as agreed at the time Lawyer was retained?

3. Does Lawyer have an obligation not to file the pleadings due to the withdrawal of Party A’s consent?

Summary

Whether Lawyer has a conflict depends on whether an attorney-client relationship was created with Party B. In either case, Lawyer should not file the pleadings.

Opinion

As a preliminary matter, the Committee has not been asked about, and does not express an opinion on, the propriety of Lawyer’s initial decision to undertake the representation or the manner in which such representation was undertaken. The Committee does not offer opinions about past conduct. Members of the Bar who are contemplating representation of multiple parties in which there is any possibility of future conflicts should carefully evaluate the risks and take proactive steps to ensure all potential clients are well-informed about such risks. See Rules 1.7 & 1.8(f), South Carolina Rules of Professional Conduct; John Freeman, Ethics Watch: Conflicts of Interest: Multiple Ways to Lose, 7 S.C. LAWYER 11 (March/April 1996).

Party B appears to have been given an expectation that an attorney-client relationship with Lawyer was created. However, that question is a matter of substantive law and the facts do not indicate a clear answer, so the Committee cannot resolve that issue. If such a relationship was created, however, the facts reflect a plain conflict of interest and, when the parties’ interests diverged due to Party A’s change of heart with respect to the agreement, Lawyer became responsible for two separate clients with opposing positions in a single matter.

This dual-representation would present a conflict under Rule 1.7(a)(1), exacerbated by the clients’ conflicting demands with respect to the filing of the agreement and associated pleadings. In that case, Lawyer should take no further action on behalf of either Party A or Party B, but should immediately withdraw from representation of both pursuant to Rule 1.16. Lawyer should take such steps as are necessary to best mitigate the harm to Party A and Party B in connection with the withdrawal, pursuant to Rule 1.16(d).

Even if Party B is not a client, Party A became a client when he or she engaged Lawyer to draft the custody modification documents. As such, Party A was entitled to expect Lawyer to act in his or her interest and to follow instructions with respect to the subject of the representation.

Filing the pleadings, as requested by Party B, conflicts with the expressed instructions of Party A. While the inquirer points out that Party A’s change of heart is contrary to the initial purpose of the representation, this does not entitle Lawyer to disregard Party A’s current wishes. When Lawyer undertook to represent Party A, Lawyer assumed the risk that Party A’s intentions might change over the course of the representation. It is not ethically permissible for Lawyer to file the pleadings over Party A’s objection. See Rule 1.2(a).

The Committee advises that engagement agreements and fee agreements should be in writing and should clearly specify who is and who is not a client whenever the potential for misunderstanding exists.