After a lawyer withdraws from representing a conservator due to a conflict, can the lawyer's partner sue on the ward's behalf against a related party?

Plain-English summary

Lawyer 1 represented a grandmother who served both as personal representative of her son's estate and as conservator for her minor grandson. After a dispute arose over an assignment of life-insurance proceeds to a funeral home, which the grandmother denied signing, Lawyer 1 moved to withdraw citing a conflict of interest between the grandmother and the minor. Lawyer 1's partner, Lawyer 2, then wished to sue the funeral home on the minor's behalf for fraudulent execution of the assignment.

The committee concluded that because Lawyer 1's withdrawal rested on a conflict between the grandmother and the minor, the disqualification requiring his withdrawal also barred Lawyer 2 from representing the minor unless the grandmother consents. Lawyer 1 had learned information from the grandmother bearing directly on the assignment's validity, so the proposed suit was a substantially related matter in which the minor's interests were materially adverse to the grandmother's, triggering Rule 1.9(a). Because Lawyer 1 and Lawyer 2 are in the same firm, Rule 1.10 imputes that disqualification to Lawyer 2, who therefore cannot take the minor's case without the grandmother's consent after full disclosure. The committee added that even with consent, Rule 1.9(c) limits on using the grandmother's information should be carefully observed.

The committee declined to opine on the propriety of Lawyer 1's own conduct, because that conduct had already occurred and was not prospective.

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 Treat this page as historical context, not current guidance.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: Could the withdrawing lawyer's partner bring the minor's suit against the funeral home?

A: The committee concluded no, not without the grandmother's consent. The conflict that forced Lawyer 1 to withdraw was imputed to his partner under Rule 1.10, so the partner could not represent the minor in the related, adverse matter.

Q: Why was the grandmother's consent required?

A: Because Lawyer 1 had learned information from her bearing on the assignment's validity, the suit was a substantially related matter in which the minor's interests were materially adverse to hers, so Rule 1.9(a) required her consent after disclosure.

Q: Did the committee evaluate the withdrawing lawyer's own actions?

A: No. The committee declined to opine on Lawyer 1's conduct because it was not prospective; the committee addresses contemplated, not completed, conduct.

Background and rules framework

The opinion applied Rule 1.9 (duties to former clients), including the substantial-relationship and consent test of Rule 1.9(a) and the use-of-information limits of Rule 1.9(c), together with Rule 1.10 (imputed disqualification within a firm). The South Carolina rule numbers correspond to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9 / Model Rule 1.9: duties to former clients (substantial relationship; consent; use of information).
• South Carolina RPC 1.10 / Model Rule 1.10: imputed disqualification within a firm.

See also

• SC Bar Ethics Op. 94-13: Former-Client Divorce and Custody Conflict
• SC Bar Ethics Op. 94-15: Former Joint Clients in a Later Divorce
• SC Bar Ethics Op. 94-19: Former Client Conflict Across Two Divorces

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-14/

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 94-14

Lawyer 1 is retained by Grandmother upon the death of grandmother's son. Grandmother is appointed personal representative of son's estate. Lawyer 1 also sets up a conservatorship for grandmother for minor grandson (child of the decedent). Grandson is the beneficiary on a life insurance policy insuring the life of son, and an account is set up for grandmother to receive the funds in her capacity as conservator for the minor grandson.

Life insurance company honors an assignment from the funeral home to pay the expenses of son's funeral and pays the balance of the life insurance proceeds to grandmother as conservator for the minor grandson. The assignment from the funeral home is allegedly signed by grandmother, but grandmother denies signing the assignment. Lawyer 1 prepared an accounting on the conservatorship, reflecting the life insurance funds were improperly paid to the funeral home. Grandmother refuses to sign the accounting, and the relationship deteriorates. Lawyer 1 files a motion to be relieved as counsel, citing conflict of interest between grandmother and the minor grandson. At the same time, he requests a hearing on two points: (1) the motion to be relieved as counsel; and (2) asking the probate court to determine the validity of the assignment from the funeral home.

Lawyer 1's law partner, Lawyer 2, wishes to assume representation of minor for purposes of bringing an action on the minor's behalf against the funeral home for fraudulent execution of the assignment. Life insurance company and bonding company have indicated a willingness to pursue legal remedies against the grandmother if it is determined that grandmother did, in fact, execute the assignment.

The Committee is asked to discuss the propriety of the actions by Lawyer 1 and the propriety of the proposed representation by Lawyer 2.

Summary:
Since Lawyer 1 has a conflict of interest that requires his withdraw from representation of grandmother, the disqualification is imputed to his law partner, Lawyer 2, and Lawyer 2 is prohibited from representing the minor in related litigation unless the grandmother consents to the law firm's subsequent representation of the minor. Because the conduct of Lawyer 1 is not prospective in nature, the Committee is unable to offer any opinion as to his conduct.

Opinion:
Since Lawyer 1's withdrawal as counsel for the grandmother is premised upon a conflict of interest between grandmother and the minor, the disqualification which requires the withdrawal of Lawyer 1 also prohibits Lawyer 2 from assuming representation of the minor, unless the grandmother consents.

During the course of his representation of grandmother, Lawyer 1 was privy to information from grandmother that related directly to the validity of the assignment to the funeral home. Since the proposed representation of the minor would be "the same or . . . [a] substantially related matter in which {the minor}'s interests are materially adverse to the interests of the {grandmother}," Lawyer 1 is prohibited from representing the minor unless the grandmother consents to the representation after disclosure. Rule 1.9(a). Since Lawyer 1 practices law in the same law firm, the disqualification of Lawyer 1 is imputed to Lawyer 2, and therefore Lawyer 2 cannot assume representation of the minor without consent of the grandmother after full disclosure. Rule 1.10.

Even if consultation and consent are obtained to permit Lawyer 2 to assume the representation of the minor, the provisions of 1.9(c) regarding use of information gained from grandmother during the firm's representation of her should be carefully observed.

Because the conduct of Lawyer 1 is not prospective in nature, the Committee is unable to offer any opinion as to his conduct.