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Ethics Advisory Opinion 05-01

April 13, 2005

South Carolina Bar Ethics Advisory Opinion 05-01

RULE 1.11(a)

Date: January 14, 2005

Facts
Lawyer is a former deputy solicitor who prosecuted a child molester for sexual abuse of boys in a residential boys’ home. In preparation for the prosecution, Lawyer had gone to the boys’ home, became familiar with the residence halls, interviewed the director who was a witness and had documents in the solicitor’s office file regarding the hiring of the criminal defendant. The defendant fled before trial and was convicted on all counts in absentia. Lawyer later left the solicitor’s office and went to work for a plaintiff’s firm. This firm has expertise in civil child abuse cases and was referred a case from out of state involving a different boy and a different perpetrator for sexual conduct at the same boys’ home.

Question
May Lawyer work on this potential case, as the boys’ home may be a defendant?

Summary
Absent appropriate consent, Lawyer may not work on the civil case. As a deputy solicitor, Lawyer interviewed witnesses, had contact with the same boys’ home and prosecuted the earlier sexual abuse case. Lawyer’s personal and substantial involvement prohibits Lawyer’s participation, unless the appropriate government agency consents after consultation, but the firm may still handle the matter if Lawyer is properly screened.

Opinion
South Carolina Rule of Professional Conduct 1.11(a) (Successive Government and Private Employment) provides that a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. This rule prevents lawyers from using the public office for the advantage of a private client.

The boys’ home where the alleged abuse took place is a possible defendant in the civil matter. While employed as a deputy solicitor, Lawyer visited the home, the residence halls and interviewed the director. The solicitor’s office had documents concerning hiring of the prior criminal defendant. Although the boys’ home was not a defendant in the criminal action, Rule 1.11 is not party specific. Knowledge gained in the prior criminal action was based on Lawyer’s position as a prosecutor. The authority granted Lawyer as a public official may not be used for the benefit of a private client.

Rule 1.11(a) allows the firm to still handle the matter if Lawyer is screened from participation, receives no part of the fee and proper notice is given to the solicitor’s office. See Ethics Advisory Opinion 02-03.

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