If a would-be client briefly calls a lawyer and is immediately referred elsewhere, is the lawyer barred from later representing a longtime client the caller sues?

Plain-English summary

A lawyer who had represented a corporate client for years received a brief telephone call from a prospective plaintiff. During the short conversation, the lawyer learned the caller wanted to sue several parties, including the corporate client, and immediately referred her to another attorney and ended the call. The caller paid no consultation fee, sent no retainer, and gave no documents. Months later, the corporate client asked the lawyer to defend it in the very suit the caller had filed through the referred lawyer; the lawyer answered the suit without recalling the earlier call. At deposition, the caller confirmed she recalled giving no confidential information and that the lawyer had referred her out, though she said she felt "a little uncomfortable" learning the lawyer represented the defendant. The question was whether the lawyer could continue representing the corporate client.

The committee concluded the lawyer could. It framed the threshold questions under Rule 1.7 (current-client conflicts) and Rule 1.9 (former-client conflicts) as whether an attorney-client relationship existed and, if so, whether the client was current or former. The corporate client was plainly a current client. As to the caller, the committee noted that whether an attorney-client relationship exists is a question of fact and can arise from an initial consultation even without formal retention, but found none arose here: the lawyer immediately referred the caller elsewhere, she divulged no confidential information, and the lawyer gave no legal advice.

Because the caller was never a client, Rules 1.7(a) and 1.9 did not apply, and the lawyer's representation of the corporate client was not materially limited by any responsibility to the caller under Rule 1.7(b). The committee concluded that, notwithstanding the caller's "misplaced discomfort," there was no conflict of interest and the lawyer could continue the representation.

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 Treat this page as historical context, not current guidance.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: Does a brief intake call with a would-be client create an attorney-client relationship?

A: The committee concluded not on these facts. Where the lawyer collected no fee or retainer, received no documents or confidences, gave no advice, and immediately referred the caller elsewhere, no relationship arose.

Q: Could the lawyer keep representing the existing client the caller later sued?

A: Yes. Because the caller was never a client, Rules 1.7(a) and 1.9 did not apply, and the representation was not materially limited under Rule 1.7(b).

Q: Did the caller's discomfort about the situation matter?

A: The committee characterized it as "misplaced discomfort" and found it did not create a conflict, since no attorney-client relationship had formed.

Background and rules framework

The opinion applied South Carolina RPC 1.7 (concurrent conflicts) and RPC 1.9 (duties to former clients), corresponding to the like-numbered Model Rules, and treated the existence of an attorney-client relationship as the controlling threshold question of fact. (At the time, South Carolina had no separate prospective-client rule; the duties to prospective clients later addressed by Model Rule 1.18 arrived with the Ethics 2000 revisions.)

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7(a), (b) / Model Rule 1.7: concurrent conflicts; material limitation.
• South Carolina RPC 1.9 / Model Rule 1.9: duties to former clients.

Cases:

• In re Larkin, 466 S.E.2d 355 (S.C. 1996), referral and formation of the attorney-client relationship.
• In re Warder, 449 S.E.2d 489 (S.C. 1994), formation of the attorney-client relationship.
• Marshall v. Marshall, 320 S.E.2d 44 (S.C. Ct. App. 1984), no relationship where no advice given.
• Chavez v. State, 604 P.2d 1341 (Wyo. 1980), existence of the relationship is a question of fact.

Other opinions cited:

• S.C. Bar Ethics Ops. 91-03, 88-11, 89-19: when an attorney-client relationship arises from a consultation.

See also

• SC Bar Ethics Op. 03-12: Confidences From a Consult
• SC Bar Ethics Op. 04-07: Sham Consult to Disqualify

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-45/

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 97-45

Lawyer has represented a corporate client for many years. Inquirer calls Lawyer about representing her in a lawsuit. In this very brief telephone conversation, Lawyer determines that Inquirer wants to file several lawsuits against several parties, including Client. Lawyer immediately refers Inquirer to another attorney and terminates the conversation. Lawyer's sole contact with Inquirer is over the telephone. Inquirer paid no consultation fee, forwarded no retainer, and gave no documents to Lawyer concerning this matter.

After several months, Client contacts Lawyer to defend it in a lawsuit. It is a lawsuit filed by Inquirer through the other lawyer recommended by Lawyer. Lawyer answers this suit, not recalling the prior conversation with Inquirer. At deposition, Inquirer testifies she does not recall giving any confidential information to Lawyer. She confirms that Lawyer terminated their conversation and made a referral to the other lawyer after Lawyer discovered that Inquirer wanted to file suit against Client. She also states in the deposition that she did "feel a little uncomfortable" when she discovered that Lawyer was representing Client in this lawsuit.

QUESTION:
Can lawyer continue to represent Client in this suit filed by Inquirer?

SUMMARY:
Inquirer did not have an attorney-client relationship with lawyer, and no conflict of interest exists.

OPINION:
Rule of Professional Conduct 1.7 sets forth the general rule regarding conflicts of interest. Part (a) of the Rule prohibits the representation by a lawyer of clients directly adverse to each other, while part (b) addresses conflicts between the interests of the lawyer and the client. Rule of Professional Conduct 1.9 governs conflicts of interest involving former clients. The threshold questions which must be answered in determining the application of those rules is whether an attorney-client relationship has been created, and if so, whether the Client is a current or former Client.

The facts of this inquiry clearly state that Client is a current client. Lawyer has represented Client for years in an ongoing relationship and represents Client in the litigation at issue. For the purposes of this analysis, Client has a current attorney-client relationship with Lawyer.
The status of Inquirer is equally clear. "Whether an attorney-client relationship exists in a particular situation is a question of fact...." S.C. Bar Ethics Advisory Opinion #91-03 (citing Chavez v. State, 604 P.2d 1341, 1346 (Wyo. 1980)). Although this relationship may be created even without formal recognition of the relationship by Lawyer, and an attorney-client relationship may arise from an initial consultation with a potential client regarding a matter, even when the lawyer is never formally retained, no relationship was created between Inquirer and Lawyer. See S.C. Bar Ethics Adv. Ops. 88-11, 89-19.
In this case, Lawyer immediately referred Inquirer to another attorney. No attorney- client relationship resulted. See In the Matter of Larkin, 466 S.E.2d 355 (1996); In the Matter of Warder, 449 S.E.2d 489 (1994). Inquirer divulged no confidential information, and Lawyer provided no legal advice. See Marshall v. Marshall, 320 S.E.2d 44 (Ct. App. 1984). Inquirer never became a client of Lawyer. Because Inquirer was never a client of Lawyer, Rules of Professional Conduct 1.7(a) and 1.9 do not apply. Further, Lawyer's representation of Client is not materially limited by any responsibility to Inquirer, Rule of Professional Conduct 1.7(b). Notwithstanding Inquirer's misplaced discomfort, there is no conflict of interest, and Lawyer may continue with the representation of Client in the litigation brought by Inquirer.