Can a lawyer represent clients against the agency where the lawyer's spouse used to work as agency counsel, when the spouse has left and they practice in different firms?

Plain-English summary

Attorney A is in private practice representing clients in family court abuse and neglect cases against the South Carolina Department of Social Services (DSS). Attorney A's spouse, Attorney B, formerly worked for DSS but no longer does, and the two do not practice in the same firm. The inquiry asked whether Attorney A may defend clients against whom Attorney B litigated cases on behalf of DSS, and whether Attorney A may serve as guardian for such clients.

The committee concluded that Attorney A may do both. An attorney is not precluded from representing a party directly adverse to a party formerly represented by his or her spouse. Rule 1.8(k) addresses ongoing conflicts when directly adverse parties are represented by related lawyers, providing that a lawyer related to another lawyer as a spouse shall not personally represent a client directly adverse to a person the lawyer knows is represented by the other lawyer unless the client gives informed consent; because Attorney B is no longer employed by DSS, Attorney A is not prohibited. Rule 1.9 conflicts exist only between an attorney and the party that attorney formerly represented and are not imputed to a former counsel's spouse; since Attorney A never represented DSS, he is not precluded from representing parties adverse to DSS.

The committee further explained that the imputation of a former government lawyer's conflict does not extend to a spouse or family member; Rule 1.11(b) involves imputing a former government lawyer's conflicts to members of that lawyer's firm. Because Attorney A and Attorney B do not practice in the same firm, any conflict Attorney B has as a former DSS attorney is not imputed to Attorney A, so Attorney A is not precluded from representing or serving as guardian for clients against whom Attorney B formerly litigated. The committee directed the attorney to Rules 1.6 and 8.4(a) for additional guidance on confidentiality as applicable to the spousal relationship.

In practice

The opinion holds that, under South Carolina Rules 1.8(k), 1.9, and 1.11(b), a lawyer may represent or serve as guardian for clients adverse to DSS despite the lawyer's spouse having formerly litigated those cases for DSS. Rule 1.8(k)'s spousal restriction does not reach the situation because the spouse no longer works at DSS and is not currently representing the adverse party; Rule 1.9 does not apply because the lawyer never represented DSS; and Rule 1.11(b)'s imputation of a former government lawyer's conflict runs only to that lawyer's firm, not to a spouse in a different firm. The opinion points to Rules 1.6 and 8.4(a) on confidentiality within the spousal relationship.

Common questions

Q: Can a lawyer sue an agency where the lawyer's spouse used to be agency counsel?

A: Yes, on these facts. The committee said Attorney A may represent clients adverse to DSS because the spouse no longer works there and the lawyer never represented DSS, so Rules 1.8(k) and 1.9 do not bar it.

Q: Is the spouse's former-government conflict imputed to the lawyer?

A: No. The committee said a former government lawyer's conflict is imputed under Rule 1.11(b) only to members of that lawyer's firm, and the spouses are in different firms.

Q: Would it matter if the spouse still worked for the agency?

A: It could. The committee's analysis relied on the spouse no longer being employed by DSS; Rule 1.8(k) restricts personally representing a client directly adverse to a person the related lawyer currently represents, absent informed consent.

Q: What should the lawyer still watch for?

A: Confidentiality across the marriage. The committee directed the attorney to Rules 1.6 and 8.4(a) for guidance on confidentiality as applicable to the spousal relationship.

Background and rules framework

The opinion interprets South Carolina Rule 1.8(k) (spousal/related-lawyer conflicts), Rule 1.9 (duties to former clients), Rule 1.11(b) (imputation of a former government lawyer's conflicts to the lawyer's firm), and Rules 1.6 and 8.4(a) (confidentiality), which correspond to the like-numbered Model Rules. The analysis turns on the limited reach of the spousal conflict rule, the personal nature of a former-client conflict, and the firm-bounded scope of government-lawyer imputation.

Citations and references

Rules of Professional Conduct:

• MR 1.8 / SC Rule 1.8(k) (related-lawyer conflicts; spouse)
• MR 1.9 / SC Rule 1.9 (duties to former clients)
• MR 1.11 / SC Rule 1.11(b) (imputation of a former government lawyer's conflict to the firm)
• MR 1.6 / SC Rule 1.6 (confidentiality); MR 8.4 / SC Rule 8.4(a) (violating the rules through another)

See also

• SC Bar Ethics Op. 05-01: Former Prosecutor on a Related Civil Matter
• SC Bar Ethics Op. 13-06: Furloughed Government Lawyer Defending Her Agency

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-13-08/
• Original PDF: https://www.scbar.org/media/mq5btzxz/13-08.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 Opionion 13-08

Facts:

Attorney A is in private practice and represents clients in family court in abuse and neglect cases against the South Carolina Department of Social Services (DSS). Attorney A’s spouse, Attorney B, formerly worked for DSS. Attorney B is no longer employed by DSS, and Attorney A and Attorney B do not practice in the same firm.

Questions Presented:

1. May Attorney A defend clients against whom his spouse (Attorney B) litigated cases on behalf of DSS?

2. May Attorney A serve as guardian for clients against whom Attorney B litigated cases?

Summary: Attorney A may defend clients or serve as guardian for clients against whom Attorney B litigated cases on behalf of DSS. Attorney A is not prohibited from such representation by Rule 1.8(k) since his spouse, Attorney B, is no longer employed by DSS. Attorney A is not prohibited from such representation by Rule 1.9, as Attorney A was not previously employed as counsel by DSS. Finally, Attorney A is not prohibited from such representation by Rule 1.11(b) since Attorney A and Attorney B do not practice in the same firm.

Opinion: An attorney is not precluded from representing a party who is directly adverse to a party formerly represented by her/his spouse. Rule 1.8 contemplates conflicts that arise when directly adverse parties are represented on an on-going basis by counsel who are related to each other. Rule 1.8(k) provides (in part):

“A lawyer related to another lawyer as . . . spouse shall not personally represent a client in a representation directly adverse to a person whom the lawyer knows is represented by the other lawyer unless the client gives informed consent.” Since Attorney B is no longer employed by DSS, her spouse, Attorney A, is not prohibited from representing or serving as guardian for clients against whom Attorney B formerly litigated cases on behalf of DSS.

The conflicts envisioned by Rule 1.9 exist solely between an attorney and the party formerly represented by that attorney. Rule 1.9 does not indicate that this conflict is imputed to the former counsel’s spouse. Since Attorney A was not previously employed as counsel by DSS, he is not precluded from representing parties directly adverse to DSS.

The imputation of a former government lawyer’s conflict in representing parties in a matter in which that lawyer has previously appeared adversely on behalf of the governmental entity does not extend to a spouse or family member. The conflict addressed by Rule 1.11(b) involves the imputation of a former government lawyer’s conflicts to members of that lawyer’s firm. Rule 1.8(k) provides (in part):

When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless….

Since Attorney A and Attorney B do not practice in the same firm, any conflict Attorney B has as a former DSS attorney is not imputed to her spouse, Attorney A. In addition, Attorney A is not precluded from representing or serving as guardian for clients against whom Attorney B formerly litigated cases on behalf of DSS.

The attorney should refer to Rules 1.6 and 8.4(a) for additional guidance on the issue of confidentiality as applicable to the spousal relationship.