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Ethics Advisory Opinion 09-06

March 22, 2010

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.

Full Text

SC Rules of Professional Conduct: 3.5(a), 8.4(f), 8.4(g)

Date: June 21, 2009

Facts
Lawyer is a member of a law firm whose senior partner was recently elected mayor. The mayor sits ex officio on the city council. The city council appoints the judges of the city court. Lawyer often practices in city court.

Question
May Lawyer continue to practice in city court, or does his employment in the mayor’s law firm raise a conflict of interest or appearance of impropriety barring Lawyer from practicing in any city court?

Summary
The Rules of Professional Conduct do not prohibit Lawyer from practicing in city court. However, judges may be required to recuse themselves either if the mayor’s partnership with counsel creates an appearance of impropriety or if the mayor’s personal involvement in the selection of the judge creates a due process issue.

Opinion
The Rules of Professional Conduct do not prohibit Lawyer from practicing in city court. Rules 3.5(a) and 1.8(l) prohibit attempts to improperly influence a judge, and Rule 8.4(f) prohibits stating or implying an ability to influence a judge, but none of these rules prohibits ordinary advocacy under the facts presented. Likewise, the conflict-of-interest rules (1.7 through 1.11) contain no prohibition in this circumstance. Any lawyer’s loyalty to a client may be compromised by some interest of a partner or other member of that lawyer’s firm, but the described scenario, without more, does not suggest any such compromise or risk of compromise.

udges may be required to recuse themselves either if the mayor’s partnership with counsel creates an appearance of impropriety (see Canon 2, Code of Judicial Conduct, 501 SCACR) or if the mayor’s personal involvement in the selection of the judge creates a due process issue (see Caperton v. A.T. Massey Coal Co., 2009 WL 1576573 (S. Ct. June 8, 2009)(where a litigant funded more than half the cost of a judge’s election campaign, the probability of judicial bias toward that party was “too high to be constitutionally tolerable”)). Nevertheless, Lawyer is not prohibited from appearing before these city court judges unless the lawyer knows the judge is violating the Code of Judicial Conduct in hearing the case. See Rule 8.4(g)(a lawyer may not “knowingly assist a judge … in conduct that is a violation of applicable rules of judicial conduct.”)

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