Is there a conflict when one spouse represents the plaintiff and the other spouse is appointed guardian for an incompetent person in the same matter?

Plain-English summary

Lawyer A, a sole practitioner, represented a plaintiff in a matter in which Lawyer S, A's spouse and a member of a law firm, had been appointed to protect the interests of a minor or incompetent person. The committee was asked whether the appointment created a conflict and whether it mattered that the appointed spouse is herself an attorney.

On the first question, the committee concluded a conflict exists, citing Rules 1.7(b) and 1.8(i). While the plaintiff could conceivably consent after consultation, the minor or incompetent cannot. The committee reasoned these rules apply to both A and S even though S is technically appointed only as guardian, and stated that A and S should bring the conflict to the court's attention and ask that one of them be removed.

On the second question, the committee concluded the spouse's status as an attorney is relevant: because S is an attorney, she is bound by the Rules of Professional Conduct even when acting as a guardian, her duties as guardian may be higher than as an attorney, and as a practical matter she may be called on to render legal advice even though appointed only as guardian.

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 Treat this page as historical context, not current guidance.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: Is there a conflict when spouses are on opposite sides as lawyer and guardian in one matter?

A: The committee concluded yes, under Rules 1.7(b) and 1.8(i), and said the two should bring the conflict to the court and ask that one be removed.

Q: Can consent cure it?

A: The committee noted the plaintiff might consent after consultation, but the minor or incompetent cannot, so the conflict cannot simply be waived.

Q: Does it matter that the guardian spouse is also a lawyer?

A: The committee concluded it does. Because she is an attorney, she remains bound by the Rules even when acting as guardian, and may be called upon to give legal advice.

Background and rules framework

The opinion applied Rule 1.7(b) (a conflict where representation may be materially limited by the lawyer's responsibilities or interests) and Rule 1.8(i), the South Carolina counterpart governing conflicts arising from a lawyer's close family relationship with a lawyer on the other side, 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: conflicts that may materially limit a representation.
• South Carolina RPC 1.8(i) / Model Rule 1.8: conflicts arising from a related lawyer on the opposing side.

See also

• SC Bar Ethics Op. 96-02: Spouse Managing the Client
• SC Bar Ethics Op. 96-21: Conservator as Lawyer

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-95-19/

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 95-19

Lawyer A is a sole practitioner. Lawyer S, the spouse of Lawyer A, practices law in a law firm. Lawyer A represents Plaintiff P in a matter in which Lawyer S has been appointed to protect the interests of a minor or incompetent individual.

Questions:
1. Does the appointment of the spouse of the Plaintiff's attorney as guardian of the interests of an incompetent individual create a conflict of interest?
2. Is the added fact that the spouse appointed to serve as guardian happens to be an attorney a relevant consideration?

Opinion:
1. Yes. Rules 1.7(b) and 1.8(i) make clear that a conflict exists. While the plaintiff could conceivably consent after consultation, the minor or incompetent cannot. As noted below, these rules apply to A and S, even though S is technically appointed only as guardian. Consequently, A and S should bring the conflict to the court's attention and ask that one be removed.

2. Yes. Because S is an attorney, S is bound by the Rules of Professional Conduct even when acting as a guardian. S's duties as guardian may even be higher when acting as guardian than when acting as an attorney. As a practical matter, the guardian may be called upon to render legal advice even though technically appointed only as guardian.