Can a lawyer who sued an employer for one client later represent the employer's manager against that same employer?

Plain-English summary

A lawyer represented a client in a matter against a manager and an employer, where the manager was a material witness for the employer. The matter settled and was dismissed with prejudice. The manager then asked the lawyer to represent him in a new action against the employer. The questions were whether the lawyer could represent the manager when the new case was unrelated to the old one, and when it was related.

The committee concluded the representation would not violate Rule 1.7(a) or (b). Under Rule 1.7(a), the key question is whether representing the manager would be directly adverse to the former client; the committee was presented with no facts showing that, so Rule 1.7(a) did not prohibit the representation. Under Rule 1.7(b), a conflict requires both that the lawyer owe a responsibility to the former client or the employer and that the responsibility would materially limit the lawyer's loyalty to the manager; no facts showed the lawyer presently owed a responsibility to the former client or employer, the former matter was settled and dismissed (so the representations are not simultaneous), and the employer was an adverse party in both the former and present litigation. The committee cited Anonymous Member of South Carolina Bar (S.C. 1993).

The committee further concluded that Rule 1.7(b) does not bar representing the manager even in a related case, but cautioned the lawyer to be mindful of Rule 1.9(a): an attorney who formerly represented a client shall not thereafter represent another person in the same or a substantially related matter in which the other person's interest is materially adverse to the former client without the former client's consent after consultation. So, to the extent the lawyer proposes to represent the manager in a matter the same as or substantially related to the old case, and the manager's interests are materially adverse to the former client's, the lawyer must obtain the former client's consent after consultation.

Currency note

This opinion was issued in 1999, 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 Treat this page as historical context, not current guidance.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 manager against an employer the lawyer once sued for another client?

A: The committee concluded yes on the facts: there was no Rule 1.7(a) or (b) conflict, because the prior case was settled and dismissed and nothing showed the new representation was adverse to the former client.

Q: Does it matter whether the new case is related to the old one?

A: The committee concluded Rule 1.7(b) does not bar even a related case, but Rule 1.9(a) requires the former client's consent if the new matter is the same or substantially related and materially adverse to the former client.

Q: Why was there no current conflict?

A: The committee noted the former client's matter was settled and dismissed, so the representations are not simultaneous, and the employer was an adverse party in both cases.

Background and rules framework

The opinion interpreted South Carolina RPC 1.7(a) and 1.7(b) (concurrent conflicts; direct adversity and material limitation) and RPC 1.9(a) (duties to former clients), corresponding to the like-numbered Model Rules, citing Anonymous Member of South Carolina Bar (S.C. 1993).

Citations and references

Rules of Professional Conduct:

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

Cases:

• Anonymous Member of South Carolina Bar, 315 S.C. 141, 432 S.E.2d 467 (S.C. 1993).

See also

• SC Bar Ethics Op. 00-05: Past Closings, Later Divorce
• SC Bar Ethics Op. 98-22: Switching Sides Against a Client

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-99-08/

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 99-08

Facts
Lawyer represented Client in a matter brought against Manager and Employer. Manager was a material witness for Employer. The matter was settled, and the case dismissed with prejudice. Manager has now asked Lawyer to represent him in a new action against Employer which is not related to the settled case.

Questions

1. May Lawyer represent Manager in an action against Employer when the new case is not related to the old case?
2. May Lawyer represent Manager in an action against Employer when the new case is related to the old case?

Summary
Lawyer's representation of Manager in an action against Employer will not violate Rule 1.7(a) or Rule 1.7(b) of the Rules of Professional Conduct, as there are no facts indicating that representation of Manager will be directly adverse to Client or that Lawyer has a conflicting responsibility to the Client or Employer. Lawyer may have to obtain the consent of Client after consultation in accordance with Rule 1.9(a), but only if the representation is in a related case and is materially adverse to Client.

Opinion
Rule 1.7(a) provides that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes that the representation will not adversely affect the relationship with the other client and each client consents after consultation.

Therefore, for purposes of this case, the important question arising under Rule 1.7(a) is whether Lawyer's representation of Manager would be directly adverse to the interests of Client. The Committee has not been presented with any facts indicating that Lawyer's representation of Manager would be directly adverse to Client. Therefore, Rule 1.7(a) does not prohibit Lawyer from representing Manager.

Rule 1.7(b) may be more pertinent to this opinion. Rule 1.7(b) provides that a lawyer shall not represent a client if the representation may be materially limited by the lawyer's responsibilities to another client or third party unless the lawyer reasonably believes that his representation of the client will not be adversely affected and the client consents after consultation. See Anonymous Member of South Carolina Bar, 315 S.C. 141, 142-143, 432 S.E.2d 467, 468 (S.C. 1993).

Based on the factual scenario presented, there would appear to be no conflict of interest under Rule 1.7(b). In order for Rule 1.7(b) to be triggered, two conditions must exist. First, Lawyer must have a responsibility to Client or Employer, a third person. Second, it must be found that this responsibility would materially limit the loyalty of Lawyer to Manager in the proposed representation. We have not been presented with any facts indicating that Lawyer presently owes a responsibility to Client or Employer. The matter in which Lawyer represented Client has been settled and dismissed. Therefore, Lawyer's representation of Manager is not simultaneous with his representation of Client. Further, Employer is an adverse party in both the former and present litigation.

We further conclude that Rule 1.7(b) does not prohibit Lawyer from representing Manager in an action against Employer which is related to the old case in which Lawyer represented Client. However, Lawyer should be mindful of the requirements of Rule 1.9(a), which provide that an attorney 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 the other person's interest is materially adverse to the interests of the former client unless the former client consents after consultation. Therefore, to the extent Lawyer proposes to represent Manager in an action which is the same or substantially related to the old case and Manager's interests are materially adverse to Client's interests, Lawyer must obtain Client's consent after consultation.