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 01-08
Facts
A lawyer in a firm serves as a part-time municipal court judge. An associate lawyer in the firm has clients who may be called as defendants in the same court.
Question
Can the partners or associates of a lawyer who is a part-time judge represent clients in the court where the judge sits as long as it is not in front of their partner or associate in his role as judge?
Summary
An associate or partner of a part-time municipal court judge is not ethically prohibited from practicing in the same court where the part-time municipal court judge presides so long as the partner or associate does not appear before the part-time judge.
Opinion
Rule 1.10 of the South Carolina Rules of Professional Conduct governs imputed disqualifications of attorneys. “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9, or 2.2.” In the instant situation, the part-time judge is not prohibited from practicing in his jurisdiction by any of the aforementioned Rules of Professional Conduct, but instead is prohibited from doing so by the Code of Judicial Conduct. Application c(2) of Rule 501, S.C. App. Ct. R. This prohibition is beyond dispute. Judicial Advisory Opinions 27-1994, 15-2000, 5-1987.
A strict reading of the Rules would indicate that the associate or partner would not be prohibited from practicing law in the court where the part-time judge sits so long as it is not before the part-time judge; however, this result is the subject of much fervent debate. Ethics Advisory Opinion 90-10 disqualifies the partner or associate from any practice in the part-time judge’s court based upon “the spirit and intent of Rule 1.10.” Judicial Advisory Opinion 27-1994, while not binding on this Committee, comes to the opposite conclusion, showing that reasonable people within our own state differ on the subject.
Looking to the opinions of other states is not necessarily helpful here either. Indeed, this split in views can be seen across the nation. New York has published no less than twelve different opinions opposing the partner practicing in the part-time judge’s court. N.Y. Eth. Op. 701, 1998 WL 957913; N.Y. Jud. Adv. Op. 96-36, 1996 WL 940916; N. Y. Jud. Adv. Op. 96-131, 1996 WL 1063681; N.Y. Jud. Adv. Op. 94-93, 1994 WL 907333, N.Y. Jud. Adv. Op. 93-57, 1993 WL 838837; N.Y. Eth. Op. 632, 1992 WL 465634; N. Y. Jud. Adv. Op. 90-140, 1990 WL 678794; N.Y. Jud. Adv. Op. 90-72, 1990 WL 678736; N.Y.C. Eth. Op. 1990-4, 1990 WL 605967; N.Y. Jud. Adv. Op. 89-12, 1989 WL 572108; N.Y. Jud. Adv. Op. 88-131, 1989 WL 572204; N.Y. Jud. Adv. Op. 88-108, 1988 WL 546969. Michigan, Minnesota, and Arizona have issued similar opinions. MI Eth. Op. JI-42, 1991 WL 521924; MN Eth. Op. 3, 1972 WL 12399; AZ Jud. Adv. Op. 92-16, 1993 WL 851381. Conversely, Ohio finds solidly in favor of the practice (OH Adv. Op. 98-3, 1998 WL 184426; OH Adv. Op. 94-2, 1994 WL 876383, with Utah following suit. UT Eth. Op. 95-02A, 1996 WL 73352.
Since nothing in the South Carolina Rules of Professional conduct specifically prohibits the partner’s behavior, the Committee is left with but one sound conclusion. In finding that the associate or partner is not prohibited by ethical considerations, the Committee interpretation adheres to the Scope of the Rules as “rules of reason.” Preamble to S.C. App. Ct. Rule 407 (Scope). This decision overrules our prior decision in Ethics Advisory Opinion 90-10 and is consistent with the reasoning set forth in Judicial Advisory Opinion 27-1994.