Can a partner of a municipality's attorney represent both the attorney and the municipality as co-defendants in the same lawsuit?

Plain-English summary

A municipality's attorney was named, in his official capacity, as a co-defendant alongside the municipality in a lawsuit. The committee was asked whether a partner in that attorney's firm could represent both the attorney and the municipality in the litigation.

The committee concluded the dual representation is governed by Rule 1.7(b). A possible conflict does not automatically preclude representing co-defendants together, but the representation may proceed only if both of the rule's conditions are met: the lawyer reasonably believes the representation will not be adversely affected, and each client consents after consultation, with the consultation explaining the implications, advantages, and risks of common representation. Because the rule is imperative, both conditions must be satisfied. On the facts, the committee found a significant likelihood of conflicting positions and observed that an impermissible conflict may well exist, though the unpredictable nature of litigation made it impossible to say a conflict would actually occur.

Currency note

This opinion was issued in 1994, 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 Treat this page as historical context, not current guidance.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 one firm represent both the city and its attorney as co-defendants?

A: The committee concluded it can only if Rule 1.7(b) is satisfied: the lawyer reasonably believes the representation will not be adversely affected and both clients consent after consultation.

Q: Did the committee see a conflict in this case?

A: It found a significant likelihood of conflicting positions and said an impermissible conflict may well exist, but noted litigation's unpredictability made a definite prediction impossible.

Background and rules framework

The opinion applied Rule 1.7(b) (conflicts of interest), under which a lawyer may not represent a client if the representation may be materially limited by responsibilities to another client unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation. The South Carolina rule corresponds to like-numbered Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7 / Model Rule 1.7: conflicts of interest; conditions for common representation (Rule 1.7(b)).

See also

• SC Bar Ethics Op. 94-28: Suing a Different State Agency
• SC Bar Ethics Op. 94-17: Agency Contract Lawyer and Firm Conflict
• SC Bar Ethics Op. 94-14: Imputed Conflict in an Estate Matter

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-01/

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 94-01

A lawyer for a municipality has been recently named in a lawsuit, in his official capacity, together with the municipality.

Question:
May one of the partners in the law firm of the attorney for the municipality represent both the attorney for the municipality as well as the municipality itself in the pending litigation?

Summary:
Although a possible conflict of interest does not preclude the simultaneous representation of co-defendants in litigation, such representation may not be undertaken if the lawyer believes that his own interests will have an adverse effect on the representation of either client.

Opinion:
Although the inquiry presented to the committee does not specify whether or not the attorney represents the municipality in specific categories or generally, this opinion presumes general representation. It would appear there is significant likelihood of conflicting positions in the litigation. Consequently, Rule 1.7(b) applies herewith by virtue of the simultaneous representation which could possibly result in a conflict. Rule 1.7(b) states that:

A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

1) the lawyer reasonably believes the representation will not be adversely affected; and 2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

Because this Rule is imperative, both exceptions must be satisfied before the law firm of the attorney for the municipality may engage in the dual representation.

From the question presented, it would appear that an impermissible conflict of interest may well exist if dual representation is undertaken. Due to the unpredictable nature of litigation, it is impossible to determine if a conflict will actually occur.