Can a South Carolina lawyer represent a wife in her divorce when the lawyer previously represented the husband in a child custody matter and an accident case?
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This page answers the general question as of 1997. Ezel answers yours: whether it's allowed on your facts, under the current South Carolina Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer had known a wife and her family longer than the husband, but had represented the husband in a child custody matter involving a child from a previous marriage and in an accident case. The wife asked the lawyer to represent her in a divorce against the husband, and the lawyer asked whether a conflict of interest existed.
The committee concluded the answer turns on Rule 1.9(a), which bars a lawyer who formerly represented a client from later representing another person in the same or a substantially related matter where the new client's interests are materially adverse to the former client, unless the former client consents after consultation. Whether the divorce is "substantially related" to the prior representation of the husband is a question of fact for the lawyer, guided by the comment to Rule 1.9(a); the committee noted that if confidential information from the earlier matters may be addressed in the divorce, the matters are likely substantially related.
If the matters are substantially related, the committee concluded the conflict can be overcome only by the husband's consent after consultation. The committee added that the lawyer's longer acquaintance with the wife should have no bearing on the analysis.
Currency note
This opinion was issued in 1997, 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 Treat this page as historical context, not current guidance.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 take the wife's divorce after representing the husband before?
A: The committee concluded it depends. Under Rule 1.9(a) the lawyer is barred only if the divorce is substantially related to the prior representation of the husband; otherwise the prior representation alone does not prohibit it.
Q: How is "substantially related" decided?
A: The committee called it a question of fact for the lawyer, guided by the comment to Rule 1.9(a). It noted that if confidential information from the earlier matters may be addressed in the divorce, the matters are likely substantially related.
Q: If there is a conflict, can it be cured?
A: Yes. The committee concluded that if the matters are substantially related, the conflict can be overcome only by the husband's consent after consultation.
Background and rules framework
The opinion applied Rule 1.9(a) (duties to former clients), corresponding to the like-numbered Model Rule, which prohibits representation adverse to a former client in the same or a substantially related matter absent the former client's consent after consultation. The committee directed the lawyer to the comment to Rule 1.9(a) for guidance on the substantial-relationship test.
Citations and references
Rules of Professional Conduct:
- South Carolina RPC 1.9(a) / Model Rule 1.9: duties to former clients; the substantial-relationship test and consent.
See also
Source
- Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-16/
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 97-16
Husband and Wife are contemplating a divorce. Lawyer has known wife and her family for more years than Lawyer has known Husband. Lawyer has represented Husband in a child custody matter involving a child from a previous marriage and in an accident case. Wife has asked Lawyer to represent her in her divorce action against Husband.
Questions:
Does Lawyer have a conflict of interest?
Summary:
Rule 1.9(a) of the Rules of Professional Conduct prohibits representation of a new client in a matter that is substantially related to the representation of a former client. If a conflict exists, however, it can be overcome by acquiring the former client's consent after consultation.
Discussion: Rule 1.9(a) of the Rules of Professional Conduct states:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.
In the above situation, Lawyer would be prohibited from representing Wife if the contemplated divorce action is "substantially related" to Lawyer's past representation of Husband. This is a question of fact for Lawyer to determine, the Comment to Rule 1.9(a) may provide guidance. If confidential information from a previous action may be addressed in the current action then it's likely that they are "substantially related." If the two matters are substantially related, the conflict can only be overcome by consent of Husband after consultation.
The fact that Lawyer has known Wife longer than Lawyer has known Husband should have no bearing on Lawyer's decision.
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