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Ethics Advisory Opinion 07-03

April 13, 2007

South Carolina Bar Ethics Advisory Opinion 07-03

SC Rules of Professional Conduct: 1.0(f), 1.7, 1.7(a), 1.7(a)(2), 1.7(b), 1.7(b)(4)

Date: June 22, 2007

Facts
Lawyer is in private practice in County Y. Lawyer has a personal relationship with the Sheriff of County X. Lawyer contemplates future representation of clients charged with crimes in County X. Lawyer would always question Sheriff as to his involvement in any case in which Lawyer was contacted and decline representation of anyone in whose case Sheriff had involvement. If Sheriff had no involvement, Lawyer would always disclose to future clients that she is involved in a personal relationship with the Sheriff of County X and would always obtain a written confirmation of informed consent signed by the client.

Question
Does Lawyer's relationship with Sheriff constitute a conflict of interest such that Lawyer must decline to represent any client charged by the Sheriff’s Office in County X?

Summary

Lawyer may represent clients charged by Sheriff’s Office in County X provided that Sheriff is not expected to testify in those clients’ cases, Lawyer discloses her personal relationship with the Sheriff to those clients, and Lawyer obtains a written confirmation of informed consent from those clients, confirmed in writing.

Opinion

Loyalty to clients and preservation of clients’ confidences and secrets are paramount to Lawyer’s representation of clients. Lawyer also must be able to exercise independent professional judgment. Because Lawyer and Sheriff are involved in a personal relationship, there may be a risk that client confidences will be revealed and that Lawyer’s professional judgment and loyalty could be compromised by Lawyer’s “personal relationship,” if lawyer will be expected to cross-examine sheriff.

Rule 1.7 addresses conflicts of interest concerning current clients, and, specifically, Rule 1.7(a)(2) addresses conflicts between a lawyer and a current client, former clients, a third person or the personal interest of thelawyer. Here, the personal interest of Lawyer, that is, her relationship with Sheriff, could conflict with the interest of clients in whose cases Sheriff had been involved. Lawyer should consider whether there is a significant risk that the representation of the client will be “materially limited” by Lawyer’s personal relationship. To avoid a conflict, Lawyer should refrain from representing those clients in whose cases Sheriff is expected to testify.

Lawyer may also represent clients on whose cases Sheriff is not expected to testify directly involved. Rule 1.7(b) allows a lawyer, despite a potential 1.7(a) conflict, to represent a client if, among other things, “the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.” Such a belief is not reasonable where lawyer will be called upon to cross examine Sheriff personally. Such a belief, may be reasonable, in other cases, however, those clients should be advised of Lawyer’s personal relationship with the Sheriff, and Lawyer should obtain signed, written confirmation of informed consent from those clients, as indicated in Rule 1.7(b)(4). Pursuant to Rule 1.0(f), the disclosure to and consultation with the client must provide “reasonably adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Comment 18 to Rule 1.7 suggests “[t]he better practice is to include within any writing the risks, advantages and alternatives discussed as a matter of full disclosure.”

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