Can a lawyer who represented a mother in a custody case later represent a babysitter accused of abusing the child now in the father's custody?

Plain-English summary

An attorney had represented a woman in a separation and child-custody action that ended with the father gaining custody. The father then hired a babysitter who became the defendant in a Department of Social Services case for physically abusing one of the children. The question was whether the attorney could represent the babysitter.

The committee said the rules governing a conflict with a former client are set out in Rule 1.9, citing the attached S.C. Bar Advisory Opinion 90-34. If the new client's interests are not adverse to the former client's, and the attorney will not use any information relating to the former representation to the former client's disadvantage, then the attorney is free to undertake the new representation without risking "the treachery of changing sides," quoting ABA Formal Opinion 342.

Currency note

This opinion was issued in 1992, 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 Treat this page as historical context, not current guidance.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 new client when a former client is connected to the matter?

A: The committee said yes, under Rule 1.9, as long as the new client's interests are not adverse to the former client's and the lawyer does not use information from the former representation against the former client.

Q: What are the two conditions the committee set?

A: The new client's interests must not be adverse to the former client's, and the lawyer must not use any information relating to the former representation to the former client's disadvantage.

Background and rules framework

The opinion applied Rule 1.9 (duties to former clients), which corresponds to Model Rule 1.9, and drew on S.C. Bar Advisory Opinion 90-34 and ABA Formal Opinion 342. The analysis turned on the absence of adversity to the former client and the protection of information from the prior representation.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9 / Model Rule 1.9: duties to former clients, including not using information from the former representation to the former client's disadvantage.

Other opinions cited:

• SC Bar Advisory Opinion 90-34: former-client conflict analysis.
• ABA Formal Opinion 342: "the treachery of changing sides."

See also

• SC Bar Ethics Op. 92-24: Suing a Former Corporate Client's Owner
• SC Bar Ethics Op. 00-05: Past Closings, Then a Divorce Against the Husband

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-02/

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 92-02

An attorney represented a woman in an action for separation and child custody which resulted in the father gaining custody of the children. Subsequently, the father hired a babysitter who is the defendant in a case brought by the Department of Social Services for physical abuse of one of the children.

Question:
Can the attorney represent the babysitter in this matter?

Summary:
There is no prohibition of the attorney undertaking such representation, provided that the babysitter's interests are not materially adverse to the interests of the former client and provided that the attorney does not use any information relating to the former representation to the disadvantage of the former client.

Opinion:
The rules of conduct governing a conflict of interest involving a former client are clearly set forth in Rule 1.9 of the South Carolina Rules of Professional Conduct. (See attached SC Bar Advisory Opinion 90-34). If the new client's interests are not adverse to those of the former client and if the attorney will not be using any information relating to the former representation to the disadvantage of the former client then the attorney is free to undertake representation of the new client without risking "the treachery of changing sides" (ABA Formal Opinion 342).