Can a lawyer who contracts to represent one state agency sue a different, unrelated state agency on behalf of a town?

Plain-English summary

A lawyer in private practice was retained by the Town of X to litigate a contractual dispute against the South Carolina Department of Corrections (SCDC). The same lawyer held a contract to represent the Department of Social Services (SCDSS) in an adjoining county in protective-services matters. The committee was asked whether the lawyer could take the town's case against SCDC.

The committee concluded the lawyer is not ethically prohibited. Applying Rule 1.7's prohibitions on direct adversity to, and material limitation by responsibilities to, another client, it reasoned that SCDSS and SCDC are separate and distinct statewide agencies with no supervisory, administrative, or other interrelationship beyond both being agencies of the State. It distinguished its Opinion 94-17, which barred a contract SCDSS attorney and the firm from opposing SCDSS itself in any county, because there the adverse party was the same client; here, while making no legal finding of who the lawyer's client is, it found SCDSS and SCDC are not the same client. The committee noted this narrow view is consistent with its prior Opinion 92-16.

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 Treat this page as historical context, not current guidance.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 lawyer sue the Department of Corrections while under contract to Social Services?

A: The committee concluded yes. The two agencies are separate clients, so suing one does not create direct adversity to, or material limitation from, the lawyer's responsibilities to the other under Rule 1.7.

Q: Why did this come out differently from Opinion 94-17?

A: In 94-17 the lawyer would have opposed the very agency he contracted with (the same client). Here the lawyer opposes a different agency, which the committee found is not the same client.

Q: Did the committee decide who the lawyer's client actually is?

A: No. It made no legal finding on that, but concluded that SCDSS and SCDC are not the same client, consistent with its narrow approach in Opinion 92-16.

Background and rules framework

The opinion applied Rule 1.7 (concurrent conflicts of interest), turning on whether two state agencies are the same client. The committee distinguished its Opinion 94-17 and aligned with Opinion 92-16. 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: concurrent conflicts of interest (direct adversity; material limitation).

Other opinions cited:

• SC Bar Adv. Op. 94-17: a contract attorney and firm may not oppose the agency they contract with.
• SC Bar Adv. Op. 92-16: narrow view of when separate state agencies are the same client.

See also

• SC Bar Ethics Op. 94-17: Agency Contract Lawyer and Firm Conflict
• SC Bar Ethics Op. 94-18: Agency Lawyer Learns of Employee Misconduct
• SC Bar Ethics Op. 94-31: Solicitor's Firm Defending in Another Circuit

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-28/

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 94-28

A lawyer in private practice has been retained by the Town of X to represent the town in a contractual dispute with the Department of Corrections ("SCDC") which will require litigation. The lawyer has a contract with the Department of Social Services ("SCDSS") in an adjoining county to provide legal representation in matters related to adult and child protective services in the Family Courts. May the lawyer accept representation of a municipality to litigate a contractual dispute with a different state agency?

Summary:
The lawyer is not ethically prohibited from representing the municipality in a contractual dispute with the Department of Corrections, despite the fact that the lawyer has a contract with a different state agency to provide legal services.

Opinion:
SCACR 407, Rule 1.7 provides: "A lawyer shall not represent a client if the representation of that client will be directly adverse to another client..." and "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..." SCDSS and the SCDC are two separate and distinct agencies under the State of South Carolina. While they are both statewide agencies, there does not appear to be any relationship between the two agencies from a supervisory, administrative, etc. perspective. They function without any interrelationship or commonality between the two agencies, other than the fact they are agencies of the State of South Carolina.

This opinion can be distinguished from S.C. Bar Advisory Opinion 94-17. In Opinion 94-17 the question addressed by this committee was whether members of a lawyer's firm should represent a defendant or a Guardian ad Litem in SCDSS cases, when the lawyer was a contract or part-time attorney with the SCDSS. The committee concluded neither the lawyer nor members of his or her firm should represent a defendant or Guardian ad Litem in SCDSS cases, even when those cases were in a different county from that in which the lawyer was retained as a contract or part-time SCDSS attorney.

The committee focused on the fact that a defendant's interests are normally adverse to the SCDSS, and the interests of the Guardian ad Litem could be adverse to the interests of the SCDSS. The committee assumed that SCDSS, as a statewide agency, was the client.

While the committee does not make any legal finding as to who is the lawyer's client, it appears that the SCDSS and SCDC are not the same client.1 Accordingly, the lawyer is not ethically prohibited from representing the municipality in a contractual dispute with the Department of Corrections, despite the fact that the lawyer has a contract with a different state agency to provide legal services.

1 This opinion takes a narrow view and is consistent with prior AO 92-16.