Can a lawyer represent a contractor against a former client the lawyer once briefly advised about suing that same contractor?

Plain-English summary

An attorney represented a client in a civil litigation matter, obtained a favorable result, and closed the case. During that representation, the client had asked the attorney to look into a potential lawsuit against a contractor; the attorney looked at pictures of alleged damage to the client's house and discussed the contractor problems with the client, but did not wish to represent her on it, took no retainer or funds, and returned the file. Later the contractor contacted the attorney about a summons and complaint, and after the attorney answered, the plaintiff (his former client) objected to his representing the contractor. The attorney recalled the earlier conversation, found his records showed an empty file noted "Returned information to client," was unaware of any confidences discussed, and believed any documents reviewed would be available through routine discovery. The question was whether he could continue to represent the contractor.

The committee concluded he could not. Quoting Rule 1.9(a), a lawyer who 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 former client without the former client's consent after consultation. Because the client had asked the attorney to review the file, the committee concluded that continued representation of the contractor was precluded by Rule 1.9(a), whether or not confidential information was actually received from the client.

Currency note

This opinion was issued in 1998, 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 Treat this page as historical context, not current guidance.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 represent a contractor against a former client the lawyer once advised about suing that contractor?

A: The committee concluded no; the lawyer must withdraw under Rule 1.9(a), because the prior consultation made it a substantially related matter adverse to the former client.

Q: Does it matter that the lawyer received no confidences and kept no documents?

A: The committee concluded it did not: because the client had asked the lawyer to review the file, representation of the contractor was precluded whether or not confidential information was actually received.

Background and rules framework

The opinion interpreted South Carolina RPC 1.9(a) (duties to former clients; no representation in the same or a substantially related matter materially adverse to the former client without consent), corresponding to Model Rule 1.9.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9(a) / Model Rule 1.9: duties to former clients; substantial-relationship test.

See also

• SC Bar Ethics Op. 00-05: Past Closings, Later Divorce
• SC Bar Ethics Op. 00-12: Two Drivers, One Crash

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-98-22/

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 98-22

Attorney represented Client in a civil litigation matter. A favorable result for client was obtained by attorney, and the case was closed. During the period of this representation, client asked attorney to look into the matter of a potential lawsuit against contractor. Attorney looked at pictures of alleged damages to client's house. Attorney discussed with client the problems she experienced with this contractor. Attorney did not desire to represent client in the matter, did not receive a retainer or any other funds from client, and returned this file to client.

Contractor some time later contacted Attorney regarding a summons and complaint served on him. After answering these pleadings, attorney received a message from plaintiff's attorney. Plaintiff, who is attorney's former client, objects to attorney continuing to represent contractor in this suit. At this point, attorney recalled the earlier conversation with the former client, and learned his records showed an empty file with the notation, "Returned information to client." Attorney is not aware of any confidences he discussed with former client. Any documents previously reviewed or discussed would be readily available through routine discovery.

QUESTION:
May Attorney continue to represent Contractor in this lawsuit?

SUMMARY:
No, Attorney is required to withdraw pursuant to RPC 1.9 (a), Rule 407, SCACR.

OPINION:
Rule 1.9 (a) states:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or 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.
Since Client asked Attorney to review the file, whether or not confidential information was received by Attorney from Client, continued representation of Contractor by Attorney is precluded by RPC 1.9 (a).