Can a lawyer keep representing both a husband and wife in their injury suit after the couple decides to divorce?

Plain-English summary

An attorney filed one suit on behalf of a wife for personal injury and the husband for loss of consortium. After filing, the couple began having marital difficulties and decided to seek a divorce. The lawyer asked whether he could continue representing both.

The committee explained that the Comments to Rule 1.7 treat paragraph (b) as governing simultaneous representation of civil litigants whose interests may conflict, such as co-plaintiffs. Rule 1.7(b) permits the representation only if the lawyer reasonably believes it will not be adversely affected and the client consents after consultation, and in a multiple-client matter the consultation must explain the implications, advantages, and risks of common representation. The committee identified the conflict potential: an impermissible conflict may arise from substantial discrepancies in testimony, incompatible positions toward the opposing party, or different settlement possibilities, and the value of the husband's consortium claim could turn on the grounds for divorce. It also noted that if a lump sum is offered to release all claims and the spouses disagree on dividing it, the lawyer would face a conflict and would have to comply with Rule 1.8(g) for any aggregate settlement.

Despite those potential conflicts, the committee concluded nothing in the Rules expressly precludes the lawyer from continuing to represent both spouses if he reasonably believes the conflict risk is minimal and the Rule 1.7(b) requirements are met, while advising caution and withdrawal if the risk of conflict becomes significant.

Currency note

This opinion was issued in 1995, 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 Treat this page as historical context, not current guidance.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 keep representing both spouses in a joint injury suit after they decide to divorce?

A: The committee concluded the Rules do not preclude it, if the lawyer reasonably believes the conflict risk is minimal and the Rule 1.7(b) disclosure-and-consent requirements are met.

Q: What creates the conflict potential?

A: The committee pointed to discrepancies in testimony, incompatible positions toward the opposing party, differing settlement possibilities, and the effect of the divorce grounds on the consortium claim.

Q: What if a lump-sum settlement is offered?

A: The committee said if the spouses disagree on dividing it, the lawyer would face a conflict and must comply with Rule 1.8(g) on aggregate settlements.

Background and rules framework

The opinion applied Rule 1.7(b) (simultaneous representation of clients whose interests may conflict) and Rule 1.8(g) (aggregate settlements of multiple clients' claims), each corresponding to the like-numbered Model Rule as the rules stood in 1995.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7(b) / Model Rule 1.7: simultaneous representation of clients with potentially conflicting interests.
• South Carolina RPC 1.8(g) / Model Rule 1.8: aggregate settlement of multiple clients' claims.

See also

• SC Bar Ethics Op. 96-15: Legal Services Referral Conflicts
• SC Bar Ethics Op. 95-19: Spouse Appointed as a Guardian

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-95-02/

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 95-02

An attorney files a lawsuit on behalf of wife for personal injury, and on behalf of husband for loss of consortium. After suit is filed, the couple experience marital difficulty and decide to seek a divorce.

Question:
Can the attorney who filed the lawsuit continue to represent both the husband and the wife?

Summary:
The Rules of Professional Conduct do not preclude the continued dual representation of both the husband and the wife. However, the lawyer must reasonably believe that the risk of conflict is minimal and that the requirement of disclosure and consent of Rule 1.7(b) are met. Even then, the lawyer should proceed with caution. If the risk of conflict is significant, the lawyer is advised to withdraw from the dual representation.

Opinion:
The comments to Rule 1.7 indicate that paragraph (b) governs the "simultaneous representation of [civil litigants] whose interests may conflict such as coplaintiffs and codefendants." Rule 1.7(b) provides 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 ... unless (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation...." In the context of representing multiple clients in a single matter, Rule 1.7(b)(2) further requires the lawyer to include in the consultation an "explanation of the implications of the common representation and the advantages and risks involved." Inasmuch as the lawyer's clients are seeking a divorce, the potential for a conflict exists. As the comments to Rule 1.7 indicate, "An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims...." Additionally, the value of the husband's claim for loss of consortium could be affected depending upon the grounds for the divorce. The pending divorce may have an effect on the lawyer's continued representation of both husband and wife. However, if the clients consent after consultation pursuant to Rule 1.7(b), then the lawyer may proceed. If a lump sum of money is offered in exchange for release of all claims, the lawyer may be involved in a conflict if the parties do not agree as to how the settlement should be divided. Obviously, the lawyer would then be required to comply with the requirements of Rule 1.8(g) if an aggregate settlement is contemplated.

Notwithstanding the potential conflicts set forth above, there is nothing in the Rules of Professional Conduct to expressly preclude the lawyer from continuing to represent both the husband and the wife if the lawyer reasonably believes the risk of conflicts is minimal and the requirements of Rule 1.7(b) are met.