South Carolina Bar Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the South Carolina Bar, with full citations and source links on every page.
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A lawyer drafted wills for a married couple years ago; now the husband wants new documents disinheriting the wife, who has dementia. Is that a Rule 1.9 conflict?
No, on these facts. Drafting the husband's new documents is not 'substantially related' to the prior joint representation, requires no confidential information from it, and disinheriting a non-spouse-…
Does a lawyer who, while serving as an organization's counsel, later learns of possible misconduct by the former client have a duty to report it, and may the lawyer disclose what was learned?
No mandatory duty. The rules do not require the lawyer to report the conduct or to advise non-clients, and Rule 1.9 prohibits the former in-house lawyer from using or disclosing the information to the…
Can a lawyer sell or advertise for sale a fee judgment against a former client, and what confidentiality limits apply?
Yes. A lawyer may sell a fee judgment against a former client and advertise it for sale, but may not disclose information related to the representation when doing so, because post-judgment sale to a t…
If a spouse and his father paid the legal fees for a client's earlier case, can the lawyer later represent that client in a divorce against the spouse?
Yes. Paying another person's legal fees does not, by itself, make the payer a client or prospective client, so a later representation adverse to the payer is not a conflict as long as the prior paymen…
Can a lawyer represent clients against the agency where the lawyer's spouse used to work as agency counsel, when the spouse has left and they practice in different firms?
Yes. A lawyer may represent or serve as guardian for clients adverse to the Department of Social Services even though the lawyer's spouse formerly litigated those cases for DSS; Rule 1.8(k) does not a…
Is it a conflict under Rule 1.9 for a lawyer or firm that handled a buyer's real estate closing to later represent a homeowners association enforcing covenants against that buyer?
No. Without more, conducting a residential closing is not substantially related to a later HOA action to enforce covenants or restrictions against the buyer, so Rule 1.9 does not bar the representatio…
Can a lawyer who served as a child's guardian ad litem in an abuse and neglect case later represent the custodial parent in an action to enforce or modify child support?
No. A lawyer who served as guardian ad litem for the children should not later represent the custodial parent in a child support enforcement or modification action; the child is treated as a former cl…
May a lawyer keep representing a client in a probate appeal while pursuing the lawyer's own personal-injury claim against the client's incarcerated former spouse, and what happens if the client ends the representation?
With the client's informed consent confirmed in writing, the lawyer may continue a limited representation in the probate appeal under Rule 1.2, because the lawyer's and client's interests are aligned …
Can a lawyer who settled an injured passenger's insurance claim later represent the driver in a felony DUI prosecution arising from the same accident, after the former client's written waiver?
Yes. The driver's interests likely are not materially adverse to the former client's, since the former client opposes the prosecution; and even assuming adversity, Rule 1.9(a) lets the former client w…
Can a former associate represent a client suing the lawyer's old firm over a matter the associate worked on while employed there?
No, not without consent. Because the associate advised the firm (her client under Rule 1.13) on the very dispute, representing the complaining party against the former firm in that same matter would v…
Can a firm that handled a client's home purchase later represent the homeowners' association in placing a lien on that same home for unpaid dues?
No, not without the former client's consent after consultation. The firm's earlier representation of the buyer at the home purchase is substantially related to filing a lien on that home, and the firm…
Can a former prosecutor work on a civil case against an institution they investigated as a public official, and can the new firm still take the case?
No, not without the government agency's consent: a former deputy solicitor who personally and substantially investigated a boys' home while prosecuting an abuse case is barred by Rule 1.11(a) from wor…
Can a firm defend a workers' comp claim when one of its associates already helped the claimant plan the same claim, and would screening or consent cure it?
No. Where an associate had an ongoing personal relationship with the claimant and actively helped plan the claimant's strategy on the same matter, the resulting conflict is imputed to the whole firm u…
Can a lawyer who served as guardian ad litem in a child-custody case later represent one side in a new custody dispute over a sibling?
No. The new representation is substantially related to the lawyer's prior guardian ad litem role, so Rule 1.9 bars it, and the lawyer would also be a necessary witness, which Rule 3.7 prohibits.
Does a one-hour consultation that never led to representation still create confidentiality duties that can disqualify the lawyer's firm years later?
It can. The confidentiality duty under Rule 1.6(a) may attach to a prospective client even if no representation forms. If confidences were shared, Rule 1.9(b) and Rule 1.10 can bar the lawyer's firm f…
Can a military prosecutor try a defendant for whom the prosecutor once prepared a will and estate-planning documents in an unrelated matter?
The committee concluded yes: under Rule 1.9 the prior estate-planning work is not substantially related to the later criminal charges and the prosecutor learned no confidential information bearing on …
Can a lawyer who is a member of a church sue that church on behalf of other clients?
Yes, if the conditions of Rule 1.7(b) are met. The committee concluded the lawyer may represent clients suing his own church so long as he reasonably believes his church membership will not adversely …
Can a former deputy solicitor who prosecuted a defendant for arson later represent that same person in an insurance claim arising from the same fire, and can his new firm continue the matter?
The committee concluded the former prosecutor may not represent the client in the civil insurance matter arising from the same facts he prosecuted, because doing so would exploit his former public off…
After a firm unknowingly represented both sides in unrelated matters, can the firm keep suing the contractor for the church when the contractor uses the old conflict as settlement leverage?
The committee concluded no former-client consent was needed under Rule 1.9 because the church's construction suit was unrelated to the firm's prior workers'-comp defense of the contractor; but if the …
When a former prosecutor now works for a prosecutor-training nonprofit and takes criminal-defense appointments, does he have to disclose that history or check old employers for conflicts?
The committee concluded the lawyer's current training-organization job and his bare status as a former prosecutor did not, by themselves, require disclosure to defense clients; a conflict arises under…
Can a lawyer who handled a couple's past real estate closings later represent the wife in a divorce against the husband?
The committee concluded there was no conflict of interest: the divorce was not the same or a substantially related matter to the earlier closings, and the facts revealed no confidential information fr…
Can a lawyer who sued an employer for one client later represent the employer's manager against that same employer?
The committee concluded that representing the manager against the employer does not violate Rule 1.7(a) or (b), because the prior client's case was settled and dismissed (so the representations are no…
After being dismissed from a suit, must a lawyer still keep a former client's confidences when other defendants want her testimony?
The committee concluded the duty of confidentiality and the attorney-client privilege continue after the relationship ends, and because neither Rule 1.6(b) exception applied (no criminal act, and the …
Can a lawyer represent a contractor against a former client the lawyer once briefly advised about suing that same contractor?
The committee concluded no: the lawyer must withdraw under Rule 1.9(a), because the lawyer had formerly looked into the client's potential claim against the contractor, and continued representation of…
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?
The committee concluded no attorney-client relationship arose from the brief screening call (no fee, no retainer, no documents, no confidences shared, and an immediate referral), so neither Rule 1.7(a…
Can a South Carolina lawyer sue a corporation in tort for a new client when the lawyer once handled an unrelated collection matter for that corporation years earlier?
The committee concluded Rule 1.9 does not bar suing a former client on a wholly unrelated matter under the substantial-relationship test, but the lawyer must police himself, and clear retention and te…
Can a South Carolina lawyer represent a wife in her divorce when the lawyer previously represented the husband in a child custody matter and an accident case?
The committee concluded the lawyer is barred under Rule 1.9(a) only if the divorce is substantially related to the prior representation of the husband, a fact question for the lawyer; if it is, only t…
Can a former public defender, now in private practice, take a court appointment in a PCR matter for a defendant the PD office represented while the lawyer worked there?
The committee concluded automatic per se disqualification does not apply if there was sufficient separation of duties, caseload, and employees between the former public defender and the office's repre…
Does hiring a lawyer from an opposing firm disqualify either firm when that lawyer never worked on or learned anything about the disputed cases?
The committee concluded Rule 1.9(b) disqualifies a migrating lawyer only when the lawyer has actual knowledge of confidential information; where the lawyer acquired no information about the matter at …
Must a South Carolina lawyer report another lawyer's misconduct learned only secondhand from a friend or former client?
The committee concluded the lawyer has no duty to report under Rule 8.3 because the duty requires actual knowledge, not hearsay, and because the information may be protected by Rule 1.6 if the friend …
Is it a conflict to represent a wife in a divorce against a man the firm represented in a different divorce sixteen years earlier?
The committee declined to give a definite answer on the sparse facts, but said under Rule 1.9 the firm must not take the case without the former client's consent if the two divorces are substantially …
Can a firm that jointly represented a couple in an adoption later represent the husband in their divorce and custody case over the wife's objection?
The committee concluded Rule 1.9 prohibits the firm from representing the husband, because the prior adoption matter is substantially related to the divorce and custody case, the spouses' interests ar…
After a lawyer withdraws from representing a conservator due to a conflict, can the lawyer's partner sue on the ward's behalf against a related party?
The committee concluded that because the withdrawing lawyer's conflict between the grandmother and the minor is imputed to his partner, the partner cannot represent the minor in the related litigation…
Can a lawyer's firm represent a wife in a divorce against a husband the firm formerly represented in a child-custody case?
The committee concluded the firm may represent the wife in a divorce-only matter if no duty of confidentiality to the husband would be violated, but representation is unlikely to be permissible withou…
Can a former judge represent a party in a dispute over an order the judge himself entered while on the bench?
The committee concluded that under Rule 1.12 the former judge may not represent a party in a dispute over a consent order he entered as a family court judge, because entering even a consent order was …
Can a closing law firm get a borrower to sign an advance waiver letting the firm later represent the lender against that borrower?
The committee concluded a firm may limit the scope of its representation of a borrower to closing the loan and obtain the borrower's advance written consent to later represent the lender in disputes, …
Can a lawyer keep suing a company that briefly became a former client when another firm lawyer represented it in an unrelated case?
The committee concluded that a lawyer may continue representing a client against a former client without the former client's consent where the new matter is not the same or substantially related to th…
When a public defender becomes a prosecutor, can he discuss or prosecute the cases he handled as a defender?
The committee concluded the former public defender may not discuss cases he worked on with the solicitor's office except as to generally known client information, and must recuse himself from those ca…
Can a part-time public defender handle a post-conviction case claiming another public defender in the same corporation erred at trial?
The committee concluded that where the part-time public defenders maintain separate offices and do not share employees or cases, they do not form a single firm for purposes of imputed disqualification…
Can a lawyer who is suing a former client for unpaid fees take a new client whose case is adverse to that same former client?
The committee concluded the lawyer may represent the new client against the former client only if the new matter does not require using information from, or injuriously affecting, the former represent…
When a firm sues the sole shareholder of a corporation that a newly hired lawyer once represented, is that a disqualifying conflict?
The committee concluded the answer turns on whether the new lawyer's past representation of the corporation effectively made the sole shareholder a client; if a lawyer-client relationship with the ind…
When opposing counsel in the same litigation join the same firm, can that firm keep representing one of the parties?
The committee concluded the firm may continue only if the lawyer who represented the other side withdraws, both clients consent after consultation, the firm reasonably believes the continued represent…
After a client fires her lawyer, can the lawyer still collect a court-approved attorney's fee directly from the opposing party?
The committee concluded that once the client fired the lawyer, ending the attorney-client relationship, the lawyer may take no further action to enforce the fee provisions on her behalf, and because t…
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?
The committee concluded there is no prohibition on the lawyer taking the new representation, provided the babysitter's interests are not materially adverse to the former client's and the lawyer does n…
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?
The committee concluded that whether the contact created an attorney-client relationship is a question of fact it could not decide definitively, but that on these facts, given the absence of legal adv…
Can a lawyer sue an opposing lawyer for malpractice on behalf of the very party his former client defeated, when he holds the former client's confidences?
The committee concluded that the lawyer must protect the confidential information received from his former client, and that unless the former client consents or the information has become generally kn…
Can a firm sue a former insurance-company client over the same kind of benefit-denial claims it once defended, and does reusable legal research create a conflict?
The committee concluded that a Rule 1.9 conflict exists to the extent the prior and present matters share a common course of conduct or company policy, which would make them substantially related; the…
If a firm prepared an adoption agreement for both the adoptive couple and the birth mother, can it later sue the birth mother for the couple?
The committee concluded that, under Rule 1.9(a), if the firm represented both the adoptive couple and the birth mother, it may not later represent the couple in a suit against the birth mother to reco…
Can a lawyer who sits on a state youth-services board represent a juvenile in a delinquency case that the agency makes recommendations in?
The committee, reconsidering its earlier opinion under the new Rules, concluded there is no blanket bar: because the board member only sets agency policy and does not adjudicate or have case-specific …
After closing a mortgage for the borrower, can the same lawyer later update the title, file a lis pendens, or handle the foreclosure for the lender?
The committee concluded that, assuming the lawyer represented the borrower or all parties at closing, updating the title is permissible because it only reports public record, but filing a lis pendens …
Can a former assistant solicitor defend criminal cases in the county where he served, and does it matter that his spouse is still a solicitor there?
The committee concluded that a former assistant solicitor may defend in the county where he served, except in a matter he handled personally and substantially as a public employee (which needs the sol…
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Legal ethics opinions from the South Carolina Bar interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.