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 02-02
Upon request by a South Carolina Bar member, 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 in South Carolina is administered solely by the Supreme Court through its Commission on Lawyer Conduct.
Facts:
Attorney A and Attorney B practice together in a small firm in County X. The Solicitor's Office in County X wants hire Attorney A on a part-time basis to prosecute juvenile cases in Family Court. Attorney B does some criminal defense work in County X, but only in General Sessions Court. The County X Solicitor's Office will provide Attorney A an office completely separated from the County X Solicitor's Office, out of which Attorney A will prosecute his juvenile cases.
Question:
If Attorney A accepts the job as juvenile solicitor, does Attorney A have a conflict of interest based on Rule 1.7, such that Attorney B would be prohibited from representing clients in General Sessions Court?
Summary:
Attorney A does not have a conflict of interest based on Rule 1.7. The physical separation of the Solicitor's Office from the proposed Juvenile Solicitor's Office in County X, coupled with the distinct case load and different courts, diminishes any potential conflict of interest on Attorney A's part.
Opinion:
Attorney A does not have a conflict of interest under Rule 1.7 of the South Carolina Rules of Professional Conduct. Rule 1.7 bars the simultaneous representation of clients with adverse interests. Additionally, Rule 1.10 works to impute disqualification, forbidding a firm from representing a client when any one member of the firm would be prohibited from such representation. Thus, if Attorney A were considered a member of the County X Solicitor's Office, Attorney B would be prohibited from representing criminal clients in General Sessions Court because Attorney A could not ethically do so.
Under the facts presented here, Attorney A does not have a conflict of interest under the Rules of Professional Conduct. First, Attorney A will have an office, and presumably support staff, separate from the County X Solicitor's Office. Second, Attorney A will have a caseload distinct from that handled by the County X Solicitor's Office. Finally, Attorney A will prosecute his cases in a court different from that in which the County X Solicitor's Office prosecutes its cases. All of these factors support the conclusion that the County X Solicitor's Office and the proposed Juvenile Solicitor's Office are completely separate and distinct entities for purposes of imputing disqualification under Rule 1.10.
This determination is in accord with previous Committee opinions. For example, in Advisory Opinion 93-01, the Committee determined that when separate offices are maintained by two public defenders, there would not be a single public defender's office for purposes of imputing disqualification under Rule 1.10. In contrast, Advisory Opinion 94-32 stated that a law firm could not represent a client in a criminal matter when members of that law firm worked part-time for the Solicitor's Office against whom the law firm would try the criminal case - a situation that is not present in this inquiry.
One potential conflict could occur in the context of a waiver hearing in which Attorney A prosecutes a juvenile, who is subsequently waived up to General Sessions Court. In that case, Attorney B would be prohibited from representing the juvenile in General Sessions Court. Absent a situation such as the one just described, it is ethically permissible for Attorney A to prosecute juvenile cases in Family Court, while his law partner, Attorney B, represents criminal clients in General Sessions Court.