Can a lawyer representing a wife in a divorce also represent a new client who turns out to be the husband's alleged paramour?

Plain-English summary

An attorney represented Mary in a divorce action against Joe, alleging Joe's adulterous conduct. While Mary's case was pending, Barbara retained the attorney to represent her in a divorce proceeding, and it was then discovered that Barbara was Joe's alleged paramour. The committee was asked whether the attorney could continue to represent both Mary and Barbara, and whether it would matter if the attorney could conclude Mary's case before becoming actively involved in Barbara's.

The committee said the attorney cannot represent both because of a built-in conflict of interest, and that trying to conclude Mary's case first would be a failure to zealously represent Mary and would directly conflict with her interest. It applied Rule 1.7 (a lawyer shall not represent a client if the representation will be directly adverse to another client, with no applicable exception), Rule 1.6 (a lawyer shall not reveal information relating to representation absent consent), and Rule 1.3 (a lawyer shall act with reasonable diligence and zeal). The committee explained that the lawyer could not use the information that Barbara was Joe's paramour in Mary's case without breaching Rule 1.6 as to Barbara, yet failing to reveal it in Mary's case would conflict with the duty of loyalty under Rule 1.7 and the duty of diligence under Rule 1.3; even if the lawyer learned the information from an outside source, a conflict would remain because revealing it in Mary's case might expose Barbara. The committee concluded the lawyer should terminate representation of both Mary and Barbara on the basis of a conflict of interest, and that consent would not cure the problem.

Currency note

This opinion was issued in 1991, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer represent both a divorcing wife and the husband's alleged paramour?

A: The committee said no; there is a built-in conflict of interest, and the lawyer should withdraw from both representations.

Q: Could the lawyer just finish the wife's case first?

A: The committee said no; attempting to conclude the wife's case before getting involved in the paramour's case would itself fail to zealously represent the wife and conflict with her interest.

Q: Can the clients consent to waive the conflict?

A: The committee said consent would not cure the problem, because the representation of either client would be materially limited by the lawyer's duty to the other.

Background and rules framework

The opinion applies Rule 1.7 (conflicts of interest), Rule 1.6 (confidentiality), and Rule 1.3 (diligence), each corresponding to the like-numbered Model Rule. The committee tied the three duties together: the confidential information about one client could not be used or withheld without harming the other, making the conflict unwaivable.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7 / Model Rule 1.7: a lawyer shall not represent a client if the representation will be directly adverse to another client.
• South Carolina RPC 1.6 / Model Rule 1.6: a lawyer shall not reveal information relating to the representation of a client absent consent.
• South Carolina RPC 1.3 / Model Rule 1.3: a lawyer shall act with reasonable diligence and promptness.

See also

• SC Bar Ethics Op. 91-23: Married Lawyers Representing Adverse Co-Defendants
• SC Bar Ethics Op. 91-25: Representing Both Plaintiff and Subrogated Insurer

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-91-33/

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 91-33

Attorney represents Mary in a divorce action against Joe. Mary alleges Joe has engaged in adulterous conduct. Subsequently, while Mary's divorce action is pending, Barbara retains attorney to represent her in a divorce proceeding. It is soon discovered that Barbara is Joe's alleged paramour.

Questions:
1. Can attorney continue to represent both Mary and Barbara? 2. Would it matter if attorney was able to conclude Mary's case before coming actively involved in Barbara's case?

Summary:
The attorney cannot continue to represent both Mary and Barbara as there is a built-in conflict of interest. To attempt to conclude Mary's case before becoming actively involved in Barbara's would be a failure to zealously represent Mary and be in direct conflict to Mary's interest.

Opinion:
Rule 1.7 states that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client. Rule 1.7 goes on to give various exceptions. None apply in this case.

Rule 1.6 states that a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.

Rule 1.3 states that a lawyer shall act with reasonable diligence and promptness in representing a client. The comment to this rule states that, "a lawyer should act with commitment and dedication to the interest of the client and with zeal and advocacy upon the client's behalf." In this case, where the lawyer has received the information that Barbara was Joe's paramour, then by Rule 1.6 the lawyer could not use this information in Mary's case against Joe as this revelation would be injurious to Barbara's case. Furthermore, under Rule 1.7 the lawyer would have a direct conflict with his representation of Mary by failing to reveal this information in her case. Failure to reveal the information in Mary's case would be a violation of Rule 1.3 to represent a client with zeal. Even if the lawyer received the information of the allegations that Barbara was Joe's paramour from an outside source, he would still have a conflict. To reveal the information in Mary's case may very well bring this allegation to the attention of Barbara's husband, assuming the lawyer did not hear it from him. Thus, the lawyer would be violating Rule 1.6, Rule 1.7, and Rule 1.3.The lawyer should terminate his representation of both Mary and Barbara on the basis of a conflict of interest. Representation of either Mary or Barbara would be materially limited by the lawyer's responsibility to the other and consent would not cure the problem.