Can a South Carolina lawyer sue a corporation in tort for a new client when the lawyer once handled an unrelated collection matter for that corporation years earlier?

Plain-English summary

A lawyer had represented a corporation three years earlier on a collection matter, had no current relationship with it, and believed he learned no confidential information. A new client asked him to sue the corporation in tort over events that all occurred after the prior representation ended and that were totally unrelated to it. The lawyer, practicing in a small county with scarce legal representation, asked whether he had a conflict solely because of the past unrelated representation.

The committee concluded the past representation alone does not create a bar. Under Rule 1.9, whether representation adverse to a former client is proper turns on the substantial-relationship test: the lawyer should ask whether the relationship between the issues in the former and current matters is patently clear, and whether he could have obtained information in the first matter relevant to the second. The committee framed this as a matter of self-policing, advising the lawyer to exercise a healthy distrust of himself and to ask whether there are advantages gained in the former representation that it would be unjust to exploit.

The committee concluded that Rule 1.9 does not prohibit representation adverse to a former client; it advises caution and supplies a mechanism for deciding, and adherence to the substantial-relationship test provides protection. It noted that good management practices, particularly unequivocal retention and termination letters, allow a small-town lawyer to serve overlapping clientele without running afoul of Rule 1.7 and the duty of loyalty, citing Rule 1.3's suggestion of a writing to identify the end of representation and In re Brown for the point that the attorney-client relationship may extend beyond a single task in cases of ongoing or repeated service. By communicating the express termination of representation without ambiguity, the lawyer can avoid Rule 1.7 concerns.

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 Treat this page as historical context, not current guidance.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 sue a former client on an unrelated matter?

A: The committee concluded the prior representation alone does not bar it. Under Rule 1.9's substantial-relationship test, representation adverse to a former client on a wholly unrelated matter is not prohibited.

Q: What is the substantial-relationship test here?

A: The committee said the lawyer should ask whether the relationship between the issues in the former and current matters is patently clear, and whether he could have obtained information in the first matter relevant to the second.

Q: How can a small-town lawyer manage overlapping clients?

A: The committee advised unequivocal retention and termination letters; by communicating the express end of a representation without ambiguity, the lawyer can avoid concerns under Rule 1.7 and the duty of loyalty.

Background and rules framework

The opinion applied Rule 1.9 (duties to former clients and the substantial-relationship test), Rule 1.7 (concurrent conflicts and the duty of loyalty), and Rule 1.3 (diligence, with its comment suggesting a writing to mark the end of a representation), each corresponding to the like-numbered Model Rule.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9 / Model Rule 1.9: duties to former clients; substantial-relationship test.
• South Carolina RPC 1.7 / Model Rule 1.7: concurrent conflicts and the duty of loyalty.
• South Carolina RPC 1.3 / Model Rule 1.3: diligence; writing to identify the end of representation.

Cases:

• In re Brown, 450 S.E.2d 586 (S.C. 1994): the attorney-client relationship may extend beyond a single task in ongoing or repeated service.

Other opinions cited:

• S.C. Bar Ethics Adv. Ops. 93-19, 90-34: applying the substantial-relationship test.

See also

• SC Bar Ethics Op. 97-16: Suing a Former Client
• SC Bar Ethics Op. 97-12: Former Solicitor Conflict

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-32/

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 97-32

Attorney represented Corporation three years ago on a collection matter. Attorney , however, has no current professional relationship with Corporation . Further, Attorney believes he learned no confidential information during his work for Corporation .
More recently, a new client has come to Attorney, requesting him to sue Corporation in tort. The events leading to this new client's claim all occurred after Attorney's prior representation had concluded, and the new claim is totally unrelated to Attorney's prior work for Corporation.

Attorney lives and practices in a small county where good legal representation is scarce and has had this sort of thing happen before.

QUESTION
Does Attorney have an ethical conflict solely because at some point in the past be represented Corporation on an unrelated matter?

SUMMARY
Sound management practices (i.e., unequivocal retention and termination letters) will allow a small-town attorney to service the needs of his sometimes overlapping clientele without running afoul of Rule 1.7 and the attorney's duty of loyalty. More importantly, however, the wisdom of Rule 1.9, the comments that explain this rule, and the various cases that have discussed the propriety of opposing former clients advise that an attorney tread cautiously in this area. The informed consent of a former client will often provide protection, but in the end it must be the attorney policing himself who decides whether he can be fair in opposing a former client. The attorney must ask himself, "Are there advantages gained in former representation that it would be unjust to exploit?"

According to the current Rules of Professional Conduct (codified at SCACR 407), especially Rule 1.9, the determination of whether representation counter to a former client's interests is proper will be based on the "substantial relationship test". By this standard, an attorney should inquire as to whether the relationship between the issues resolved in the former representation and the issues presented in the current matter is patently clear. Additionally, the attorney should inquire as to whether or not he could have obtained information in the first matter that would be relevant to the second. South Carolina Bar Ethics Advisory Opinions 93-19 and 90-34. Thus, when faced with an opportunity to oppose a former client, perhaps it is best for an attorney to exercise a healthy distrust for himself.

CONCLUSION
Rule 1.9 does not prohibit representation counter to the interests of a former client; it advises against the choice and gives practitioners a mechanism for correctly deciding: So long as there is adherence to the substantial relationship test, it should provide protection. See Rule 1.3 and Comment (suggesting a writing to more precisely identify the end of representation); see also In the Matter of Brown, S.C., 450 S.E.2d 586 (1994) (implying, by use of Rule 1.7, that the attorney-client relationship may well extend beyond a single task, especially in instances of ongoing or repeated service). By communicating, without ambiguity, the express termination of representation, a practitioner can avoid any concerns presented by Rule 1.7.