Does a person's brief contact with a firm's secretary about an accident create an attorney-client relationship that bars the firm from later opposing him?

Plain-English summary

The families of A and B were former clients of law firm XYZ. After an automobile accident involving A and B, in which A was killed, B went to the firm's offices and spoke to a secretary, who advised him to contact his insurance carrier. A's estate later employed the firm to pursue a claim against B's insurance carrier. The committee was asked whether the firm's contacts with B created an impermissible conflict of interest.

The committee said the firm's prior representation of B's family did not, by itself, create a conflict, because Rule 1.9 bars representation adverse to a former client only in the same or a substantially related matter, and nothing indicated the current matter was related to the prior representation. The harder question was whether B's contact with the secretary created an attorney-client (or fiduciary) relationship that would trigger Rule 1.7. Citing case law (Marshall v. Marshall, Glover v. Libman, Chavez v. State), the committee explained that an attorney-client relationship does not require a formal agreement or a fee, that the focus is on the would-be client's reasonable subjective expectations, and that giving advice or failing to negate the relationship can create one. It noted the prior relationship could make B's expectation more reasonable, but emphasized that B did not clearly seek a lawyer or disclose confidential information, and that no lawyer in the firm was even aware of B's visit, so no lawyer knew of any reliance, and once the expectation became known an immediate effort was made to dispel it. The committee added (citing Rule 5.3) that a lawyer is generally responsible for non-lawyer staff, so the contact being with a secretary did not per se preclude a relationship. On balance, given the absence of legal advice to B and of any contact with a lawyer, the committee favored the view that B's contacts were insufficient to disqualify the firm, while cautioning that the conclusion rests on a fact issue subject to other interpretation.

Currency note

This opinion was issued in 1991, 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 Treat this page as historical context, not current guidance.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 firm's prior representation of someone's family bar it from later opposing him?

A: The committee said not by itself; under Rule 1.9 a former-client conflict arises only in the same or a substantially related matter, and there was no such relationship here.

Q: Can a brief contact with a secretary create an attorney-client relationship?

A: The committee said it is possible but is a fact question; on these facts, with no legal advice given and no lawyer aware of the visit, the better view was that no relationship was created.

Q: Does it matter that the contact was only with a secretary?

A: The committee said the contact with a secretary did not per se preclude a relationship, because under Rule 5.3 a lawyer is generally responsible for the conduct of non-lawyer staff.

Background and rules framework

The opinion applies Rule 1.9 (duties to former clients), Rule 1.7 (conflicts of interest), and Rule 5.3 (responsibilities regarding non-lawyer assistants), each corresponding to the like-numbered Model Rule. The committee located the question in whether B's contact formed an attorney-client relationship, a fact-driven inquiry into reasonable expectations.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9 / Model Rule 1.9: a former-client conflict arises in the same or a substantially related matter.
• South Carolina RPC 1.7 / Model Rule 1.7: conflicts of interest involving current clients or third persons.
• South Carolina RPC 5.3 / Model Rule 5.3: responsibilities regarding non-lawyer assistants.

Cases:

• Marshall v. Marshall, 320 S.E.2d 44 (S.C. Ct. App. 1984), defining a client for attorney-client privilege purposes.
• Glover v. Libman, 578 F. Supp. 748 (N.D. Ga. 1983), focus on the would-be client's subjective expectations.
• Chavez v. State, 604 P.2d 1341 (Wyo. 1980), conduct that may give rise to a relationship absent express agreement.

Other opinions cited:

• Va. State Bar Ethics Op. 1039 (1988) and State Bar of Mich. Ethics Op. CI-1153 (1986): consultation/legal advice can create a disqualifying relationship.

See also

• SC Bar Ethics Op. 91-33: Divorce Conflict Involving an Alleged Paramour
• SC Bar Ethics Op. 91-24: When a Partnership's Lawyer Also Represents the General Partner

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-91-03/

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 91-03

The families of A and B are former clients of law firm XYZ. Following an automobile accident involving A and B, in which A was killed, B went to the offices of law firm XYZ and spoke to Y's secretary. The secretary advised B to contact his insurance carrier. A's estate later employed X to represent the estate in a claim against B's insurance carrier. Another firm has been hired by the insurer to review the question of liability. A's father has been informed of the situation and has directed law firm XYZ to continue to represent the estate of A. With permission of counsel, XYZ also has explained its role to B, although there is no indication in the facts given that B has consented to that role.

Question:
Do the contacts between law firm XYZ and B create an impermissible conflict of interest?

Summary:
If B's contacts are deemed sufficient to have created an attorney-client relationship, then law firm XYZ may not represent A's estate without the informed consent of B. The existence of an attorney-client relationship is a question of fact that cannot be answered definitively by this Committee. However, upon the facts presented, particularly in the absence of any contact between B and a lawyer in the firm, we believe the better view is that no such relationship was created.

Opinion:
The fact that law firm XYZ previously represented B's family does not alone create an impermissible conflict with the current representation of A's estate against B. Rule 1.9 of the South Carolina Rules of Professional Conduct provides in relevant part only that a lawyer who has formerly represented a client in a matter cannot represent a party with materially adverse interests in "the same or a substantially related matter." There is no indication that the current matter is related in any way to the prior representation of B's family. A more difficult question is whether B's contact with a secretary of XYZ firm regarding the accident precludes the firm from now representing A's estate in that matter.1 Rule 1.7 may prohibit representation of A's estate if that representation would be adverse to another client or would be limited by the lawyer's responsibility to another client or a third person. Whether XYZ law firm can represent A's estate, therefore, depends upon whether B's limited contacts created an attorney-client or fiduciary relationship between B and the firm. An attorney-client relationship does not depend upon the existence of a formal agreement or the payment of a legal fee. See, e.g., North Carolina State Bar v. Sheffield, 326 S.E. 2d 320 (N.C. App. 1985). The South Carolina Court of Appeals has defined a client for purposes of applying the attorney-client privilege as a person who "seeks legal advice by communicating in confidence with an attorney for the purpose of obtaining such advise." Marshall v. Marshall, 320 S.E. 2d 44 (S.C. Ct. App. 1984). Other courts have said "(i)n determining whether an attorney-client relationship existed..., the focus must be on the subjective expectations" of the would-be clients, "such that their individual belief and reliance are safeguarded." Glover v. Libman, 578 F. Supp. 748 (N.D. Ga. 1983). Specific examples of conduct that may give rise to an attorney-client relationship even in the absence of express agreement are "the giving of advice or assistance, or ... failing to negate the relationship when the advice or assistance is sought if the attorney is aware of the reliance on the relationship." Chavez v. State, 604 P.2d 1341 (Wyo. 1980). Whether an attorney-client relationship exists in a particular situation is a question of fact, see Chavez, 604 P. 2d at 1346, and this Committee is unable to provide a definitive conclusion as to how the issue might be resolved. We do note certain factors, however, that should be taken into consideration. B did seek and receive at least some advice from a firm with which B's family had a prior relationship. Depending upon the nature of the prior relationship and the length of time since its termination, B may be found reasonably to have understood that the attorney-client relationship had been renewed by B's contact. The existence of the prior relationship distinguishes this case from typical situation in which a potential client seeks an initial consultation with a stranger law firm. On the other hand, the nature of the advice sought by B is not clear. There is no indication that B requested to see a lawyer,2 and there is no indication that B disclosed any confidential information to the secretary. Perhaps most significantly, apparently no lawyer in the firm was aware even of B's visit and, therefore, certainly no lawyer was aware of any reliance by B upon expectations of an attorney-client relationship. When such expectations became known to a lawyer in the firm, an immediate effort was made to dispel the expectations. Not every initial consultation creates a sufficient relationships so as to disqualify a lawyer from representing another party in the same matter. However, such a result is possible, particularly when some advice has been given in the consultation.

See Va. State Bar Ethics Op. 1039 (Feb. 17, 1988) (consultation by a defendant in a personal injury action precluded the firm later representing the plaintiff in that matter without the defendant's consent); State Bar of Mich. Ethics Op. CI-1153 (Oct. 1, 1986) (once legal advice is given, the lawyer should treat the party as a client). On the facts presented, given the absence of any legal advice to B and of any contact by B with a lawyer in the firm, we favor the view that B's contacts with XYZ law firm were insufficient to disqualify the firm from further representation of A's estate. We caution, however, that our conclusions are based upon an issue of fact that is subject to other interpretation.

1 It is irrelevant that B's contact was with Y's secretary and that X represents A's estate. When the firm is retained, all lawyers are retained. See George v. Caton, 93 N.M. 370, 600 P.2d 822, 827 (1979).

2 While we find it significant that B spoke only with a secretary of the law firm, we are mindful that a lawyer generally is responsible for the conduct of the non-lawyer assistants in the office. See generally Rule 5.3, S.C. Rules of Prof. Conduct. This fact, therefore, does not preclude per se the creation of any responsibility by the firm to B.