If a spouse and his father paid the legal fees for a client's earlier case, can the lawyer later represent that client in a divorce against the spouse?

Plain-English summary

A lawyer represented T in a 2012 child-custody action. T's husband P and P's father paid T's consultation and retainer fees, and P attended meetings and signed a supporting affidavit, but the lawyer told both T and P at the outset that only T was the client, and both acknowledged that. After the case ended, T asked the lawyer to represent her in a divorce against P.

The opinion concludes the lawyer may take the divorce case. The committee applies Rule 1.7(a)(2): a concurrent conflict exists when there is a significant risk that the representation will be materially limited by the lawyer's responsibilities to a third person. The opinion states that "the mere fact of payment of fees does not create an attorney-client relationship, nor does it implicate Rule 1.7(a)(2)." Because nothing suggested P or P Senior interfered with the lawyer's independent judgment, no concurrent conflict arose.

The opinion also holds that P was neither a client nor a prospective client, so Rules 1.9 (former clients) and 1.18 (prospective clients) do not apply. The lawyer had explained to P that no attorney-client relationship was being formed, P agreed, and the information P shared concerned T's custody case, not any matter in which P sought advice for himself.

In practice

Under this opinion, and under the South Carolina rules as they stood in 2015, a third party's payment of a client's fees does not by itself convert the payer into a client, a former client, or a prospective client. The opinion holds that representation adverse to that payer is permitted as long as the earlier fee arrangement did not, and does not, materially limit the lawyer's judgment under Rule 1.7(a)(2). The committee treats the lawyer's explicit statement that only T was the client, acknowledged by both T and P, as the key fact distinguishing a payer from a client.

Common questions

Q: Does paying another person's legal bill make you that lawyer's client?

A: No. The opinion states that the mere payment of fees does not create an attorney-client relationship and does not implicate Rule 1.7(a)(2).

Q: Can a lawyer later sue or oppose someone who paid a former client's fees?

A: Yes on these facts. Because the fee payer was never a client or prospective client, Rules 1.9 and 1.18 do not bar the later adverse representation, provided the prior payment did not affect the lawyer's independent judgment under Rule 1.7(a)(2).

Q: Does a non-client sitting in on meetings or signing an affidavit become a prospective client?

A: Not here. The opinion notes the lawyer told P no attorney-client relationship was forming, P agreed, and the information P provided related to the client's custody case, so P was not a prospective client under Rule 1.18.

Background and rules framework

The opinion interprets South Carolina Rules of Professional Conduct 1.7 (concurrent conflicts; Model Rule 1.7), 1.9 (duties to former clients; Model Rule 1.9), and 1.18 (duties to prospective clients; Model Rule 1.18). Rule 1.7(a)(2) defines a concurrent conflict to include a significant risk that the representation will be materially limited by the lawyer's responsibilities to a third person. Rules 1.9 and 1.18 attach only once a person is a former or prospective client.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / SC RPC 1.7 (concurrent conflicts of interest)
• MR 1.9 / SC RPC 1.9 (duties to former clients)
• MR 1.18 / SC RPC 1.18 (duties to prospective clients)

See also

• SC Bar Ethics Op. 13-08: Spouse as former DSS counsel, no imputed conflict
• SC Bar Ethics Op. 12-03: Lawyers answering questions on paid Q&A sites
• SC Bar Ethics Op. 13-06: Furloughed government lawyer defending the agency

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-15-01/
• Original PDF: https://www.scbar.org/media/gjhheeh0/15-01.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 15-01

SC Rules of Professional Conduct: 1.7, 1.9, 1.18

Facts:

Lawyer met with a potential client ("T") in 2012 regarding a child custody action against M concerning the parties' minor child. Both T and her current husband ("P") attended the initial consultation at Lawyer's office, wherein P paid the consultation fee in cash. Lawyer's office provided a receipt to P for the payment of T's initial consultation.

During the initial consultation, Lawyer explained to both T and P that only T would be represented by Lawyer and that Lawyer would be advocating only for her interests in the child custody action against M. Both T and P acknowledged that only T would be Lawyer's client. T and Lawyer entered into an attorney-client contract for representation of T in her child custody action against M. P's father ("P Senior") sent a cashier's check to Lawyer as payment for T's retainer fee for this matter.

Lawyer filed the initial pleadings on behalf of T in 2012. The only named parties in this action were T and M. Throughout representation of T in the custody action, Lawyer spoke with both T and P about the merits of the case, but T was always present for each conversation. Subsequently, P wrote an affidavit in support of T receiving custody of the minor child.

Subsequent to the filing of the Final Order in 2014, Lawyer had no further contact with P or P Senior. Neither P nor P Senior are named or referenced in any of the pleadings, motions, or Orders in T's 2012 child custody action against M.

Recently, T contacted Lawyer seeking legal representation for a divorce against P. Neither Lawyer nor his staff was provided any knowledge of T and P's diminishing relationship during his prior representation of T.

Question Presented:

May Lawyer represent T in a divorce action against P?

Summary:

Yes. Lawyer was explicit in his discussion with T and P that only T would be his client. As long as P's and P Senior's payment of attorney's fees does not affect Lawyer's professional judgment and ability to competently and diligently represent T, then Lawyer may ethically represent T in a divorce action against P.

Opinion:

The mere fact of payment of fees does not create an attorney- client relationship, nor does it implicate Rule 1.7(a)(2). Rule 1.7(a), SCRPC, states a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if "there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to … a third person…." Rule 1.7(a)(2). The facts suggest that only T was lawyer's client in the child custody action. Lawyer was explicit in explaining this to both T and P in the initial consultation, and each stated they understood. P paid the fee and accompanied T to meet with lawyer throughout the representation. P Senior paid the retainer agreement but was never involved in the custody action and never spoke with Lawyer. There is nothing to suggest that P or P Senior interfered with the attorney-client relationship or the lawyer's independent judgment in representing T.

Finally, the information gained during the consultation with T, which P attended, would have been regarding T's child custody action. P was not the father, and any information he may have provided was likely to either bolster T or discredit M. P even went so far as to sign an affidavit on behalf of T to submit to the court; the contents likely included facts regarding the best interest of the child and made T fit for custody and M unfit. Further, lawyer specifically explained to P that he would not be P's attorney and no attorney-client relationship was formed, to which P agreed. Lawyer states that no information regarding the relationship status of T and P was ever disclosed to lawyer or his staff. Because of this, P would not be considered a client or even a prospective client. Therefore, Rules 1.9 and 1.18, SCRPC, would not apply.