Can a South Carolina lawyer serving as conservator for a minor also act as the minor's attorney in a personal injury claim, even with court approval?

Plain-English summary

A lawyer serving as conservator for a minor under state law wanted to represent that minor in a personal injury claim arising from an accident, intending to present any settlement for court approval. The question was whether a conflict arises if the lawyer acts both as conservator and as the child's attorney.

The committee declined to decide the legal question of whether South Carolina law permits the dual role with court approval, noting code provisions allowing court approval of conflicted conservator transactions and the enlargement of a conservator's powers, and the Supreme Court's holding that a lawyer may serve as both executor and attorney for an estate with court approval (In re James). But it concluded that even if the law allowed it, the lawyer may not ethically serve in both capacities.

Following Michigan Opinion RI-213, the committee reasoned that the Rules contemplate a system of checks and balances in which a lawyer's advice is subject to approval by either a competent client (Rule 1.2) or a person appointed to represent an incompetent client (Rule 1.14); if the lawyer serves as both conservator and attorney, there is no check on the lawyer's authority, and court supervision cannot rise to the level the Rules anticipate. The committee also found a Rule 1.7(b) conflict: the lawyer's fiduciary reporting duties as conservator may materially limit the ability to represent the ward, and a disinterested lawyer would conclude the representation should not be undertaken, so it could not properly proceed even with judicial consent on the ward's behalf.

Currency note

This opinion was issued in 1996, 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 Treat this page as historical context, not current guidance.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 be both conservator and attorney for the same ward?

A: The committee concluded no. Even if state law allowed it with court approval, the lawyer may not ethically serve in both capacities under the Rules.

Q: Why isn't court approval enough?

A: The committee reasoned that the Rules contemplate two distinct individuals checking each other (Rules 1.2 and 1.14), and that court supervision cannot rise to the level of oversight the Rules anticipate.

Q: What conflict rule applies?

A: Rule 1.7(b). The committee found the lawyer's fiduciary duties as conservator may materially limit the representation, and a disinterested lawyer would conclude the representation should not be undertaken.

Background and rules framework

The opinion applied Rule 1.7(b) (a conflict where the representation may be materially limited by the lawyer's responsibilities to others or own interests), Rule 1.14 (client with diminished capacity), and Rule 1.2 (scope of representation and the client's control), each corresponding to the like-numbered Model Rule. The committee left the underlying statutory question to substantive law and relied on Michigan Opinion RI-213.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7(b) / Model Rule 1.7: conflicts that materially limit representation.
• South Carolina RPC 1.14 / Model Rule 1.14: client with diminished capacity.
• South Carolina RPC 1.2 / Model Rule 1.2: scope of representation and client control.

Statutes:

• S.C. Code §§ 62-5-401, 62-5-422, 62-5-426, 62-5-433: conservatorship powers and court approval.

Cases:

• In re James, 267 S.C. 474, 229 S.E.2d 594 (1976): a lawyer serving as executor and attorney with court approval.

Other opinions cited:

• Michigan Standing Committee Opinion RI-213 (1994): a lawyer may not serve as both guardian/conservator and counsel for a ward.

See also

• SC Bar Ethics Op. 96-26: Business Deal With Client
• SC Bar Ethics Op. 97-15: Contacting a Child via GAL

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-96-21/

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 96-21

An attorney is serving as a conservator for a minor under S.C. Code Ann. ' 62-5-401. Following the appointment of the attorney as conservator, the minor child has a cause of action arising out of an accident and needs the services of an attorney. The attorney conservator would like to represent the minor in the personal injury claim. The attorney intends to present any settlement for approval before the Court of Common Pleas pursuant to ' 62-5-433.

Question:
Is a conflict of interest created if the attorney acts both as conservator for the minor child and the child's attorney in the personal injury claim?

Summary:
The Committee does not issue opinions on questions of law and accordingly offers no opinion on whether South Carolina law would allow a conservator for a ward to also act as attorney for the ward with court approval.
A lawyer who has been appointed as conservator for a ward may not act as attorney for the ward even with court approval. The South Carolina Rules of Professional Conduct contemplate that a lawyer's representation of a client is subject to control either by a competent client or by a conservator appointed to represent the client. S.C. Rules 1.2 and 1.14. If a lawyer serves in the dual capacity of conservator and attorney, this system of control is undermined. Court approval cannot provide the degree of oversight contemplated by these rules. In addition, the roles of conservator and attorney create a number of potential conflicts. Under Rule 1.7(b), these conflicts are so pervasive that a lawyer could not reasonably undertake the representation.

Opinion:
The committee does not issue opinions on questions of law, and accordingly does not express an opinion on whether a lawyer may legally serve as conservator for a minor and as attorney for the minor with court approval. The Committee notes, however, the following Code sections:

(1) S. C. Code ' 62-5-422, which provides that a court may approve a transaction with a conservator or attorney that is affected by a conflict of interest.

(2) Section 62-5-426, which provides for the enlargement of any of the statutorily enumerated powers of a conservator with court approval.

The Committee also notes that the South Carolina Supreme Court has held that a lawyer may serve in the dual capacity of executor and attorney for the estate provided certain requirements are met, including court approval. See In re James, 267 S.C. 474, 229 S.E. 2d. 594 (1976).

Even if South Carolina law would allow an attorney to serve in the dual capacity of conservator and attorney for the ward, the Committee concludes that the attorney may not ethically do so under the South Carolina Rules of Professional Conduct.

In Opinion RI-213 (1994 WL 423008), the Standing Committee on Professional and Judicial Ethics of the Michigan Bar considered whether a lawyer holding a county contract for appointment as a public guardian or conservator may also agree to act as legal counsel in a matter in which a ward may have a need for legal representation. The Committee decided that it was improper for the lawyer to serve in these dual capacities, even with court approval. The Committee reasoned that the Rules of Professional Conduct contemplate a system of checks and balances in which the lawyer's advice is subject to approval by either a competent client (Rule 1.2), or by a person duly appointed to represent the interests of an incompetent client (Rule 1.14). If the attorney serves as both conservator and attorney, this system of checks and balances is undermined:

In other words, the scheme contemplated in MRPC 1.14 is that there are two distinct individuals assisting the client or ward, and each acts as a check on the other. In the arrangement proposed in this inquiry, there is no check on the authority of the lawyer who serves as both legal counsel and as guardian/conservator for the ward.

1994 WL 423008, at page 3.

The Michigan committee rejected the argument that court supervision would overcome these problems because it decided that "supervision will not and cannot rise to the level anticipated in the MRPC." Id. at 5.

The Michigan committee also found that the proposed dual representation violated MRPC 1.7 (b). The South Carolina equivalent of that rule provides as follows:

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 interest, 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.

The Michigan committee stated:

Under the facts presented, the lawyer has undertaken guardian/conservator duties to the ward, and as fiduciary owes certain reporting duties to the court, which in a particular case may materially limit the lawyer's ability to represent the ward in legal matters. The decision-making ability of the lawyer as guardian/conservator regarding the conduct of the legal matter may be overshadowed by the fiduciary's judgment as counsel of record.

Id. at 5.
The comments to Rule 1.7 (b) state: "when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer cannot properly ask for such agreement or provide representation on the basis of the client's consent." Given the potential conflicts and problems associated with dual service as conservator and attorney, the Committee concludes that a disinterested lawyer would decide that such representation cannot properly be undertaken, even with judicial consent on behalf of the ward.