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 00-18
Lawyer is a former state prosecutor who has worked with both the attorney general's office and as an assistant solicitor. Lawyer is now employed by an organization which trains state prosecutors from around the nation. The organization is the training arm of a national association of prosecutors and is a not-for-profit educational institution, funded through tuition payments and private contributions. The training organization receives most of its donations from prosecutors, including some asset forfeiture proceeds. The national association of prosecutors funds some of the positions in the training organization, but not the position held by Lawyer. The training organization has a board of regents, which has representatives of other organizations including the national association of prosecutors.
Lawyer's job is to organize and present national training programs for prosecutors. Lawyer does not prosecute any cases as a part of the job. Lawyer also is involved in continuing legal education programs conducted by the state solicitor's association and the state bar.
Lawyer is contacted occasionally by lawyers in the solicitor's office or by members of the state solicitor's organization seeking a legal opinion or advice. Occasionally, Lawyer is also contacted by defense attorneys for lawyer's legal opinion or advice in a criminal matter. Lawyer is active in criminal justice and victim advocacy efforts, particularly in the area of domestic violence.
Lawyer now resides in a different county and judicial district from that in which he worked as assistant solicitor. Lawyer is now subject to appointment under Rule 608 and has also contacted the South Carolina Court of Appeals, volunteering to accept appointments in appeals in criminal cases. Lawyer has also volunteered to perform pro bono work for the Office of Appellate Defense handling criminal appeals.
QUESTIONS:
1. Must Lawyer's disclose his employment with the prosecutor training organization to the client?
2. Must Lawyer disclose his past employment as an assistant solicitor or his past employment with the attorney general's office?
3. Must Lawyer check with prior employers to determine if Lawyer previously represented the state in a matter involving the client?
4. Must Lawyer check with prior employers to determine if any other lawyers in the office represented the state in a matter involving the client?
5. Because lawyer worked in a legal services agency 16 years ago, must Lawyer check with that agency to determine if Lawyer or another Lawyer in that office ever represented a party against client?
6. Does Lawyer have a conflict of interest if Lawyer is appointed (at trial or appellate level) in a criminal case, a family court juvenile delinquency case, or a family court child removal case? If so, can the client waive the conflict?
7. Even if no real conflict exists, do the Rules of Professional Conduct require a written waiver of any perceived conflict or appearance of impropriety?
OPINION:
A lawyer may not undertake, without consent, any representation that would create a conflict of interest under Rule 1.7 with an existing client or with the lawyer's own interests or a conflict of interest under Rule 1.9 with a former client. Lawyer specifically is barred by Rule 1.7(b) from undertaking a representation if the lawyer's representation of the client A may be materially limited by the lawyer's responsibilities to a ... third person. None of the lawyer's duties as an employee of an organization that trains prosecutors, as described above, would seem to limit in any way the lawyer's ability to represent fully a criminal defense client or a client in a juvenile delinquency or child removal matter. Thus, the lawyer's current employment in that capacity would not have to be disclosed to the client.
Lawyer's former employment as a prosecutor alone does not create a conflict that must be disclosed to current clients. However, if Lawyer worked on the same or a substantially related matter while serving as a prosecutor, then the lawyer may have a conflict of interest under Rule 1.9. Thus, the Lawyer should take whatever steps are necessary to ascertain whether the lawyer previously handled the same or a substantially related matter during the prior employment. Lawyer may also be unable to undertake a representation if an adverse party such as the solicitor's office previously consulted with Lawyer about the same or a substantially related matter. Rule 1.9 does not automatically bar Lawyer from handling any matter of a similar legal nature to those handled while serving as a prosecutor. Typically, matters will be substantially related only if Lawyer gained information in the prior representation that could be relevant to the current matter.
Lawyer is not barred from handling a matter that has been prosecuted by other lawyers in the attorney general's office or by the solicitor's office in which Lawyer worked unless Lawyer was also personally and substantially involved in the matter. See Rule 1.11(a).
Because of the passage of time between Lawyer's work at a legal services office and any current representation, it seems unlikely that the Lawyer would have handled any substantially related matters while at the legal services office. However, if in a particular case the lawyer thinks it possible that such a conflict may exist, Lawyer should take appropriate steps to determine whether Lawyer did, in fact, work on a substantially related matter in the past at that office.
If no conflict exists which is directly adverse to a client or may materially limit the lawyer's representation of the client, then no consent is required, and disclosure of Lawyer's current or past employment would not be required. The Rules of Professional Conduct omit language found in the old Code of Professional Responsibility that barred even the appearance of impropriety. However, if Lawyer believes that the client's trust and confidence in Lawyer's work might be adversely affected by knowledge of Lawyer's involvement with the prosecutorial side, it may be wise for the lawyer to inform the client fully of those circumstances at the outset in order to reassure client that the lawyer will nevertheless perform zealously on the client's behalf.1