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 02-03
Lawyer worked as a deputy solicitor for a Solicitor's Office. While with Solicitor's Office Lawyer participated personally and substantially in Arson case in which Client is the defendant. Lawyer left Solicitor's Office and joined Firm. Lawyer is neither personally nor substantially involved with Client's criminal case and Solicitor's Office is not opposed to Firm continuing to represent Client and waives any conflict Firm might have. Client also has a case against an Insurance Company that arises out of the same fire as the Arson arrest. May Lawyer represent Client in the Insurance matter, and if not, may Firm continue to represent Client as long as Lawyer has no involvement in the case? 1
Question
May Lawyer represent Client in the insurance matter, and if not, may Firm continue to represent Client as long as Lawyer has no involvement in the case?
Summary
Lawyer cannot represent a Client in a civil action against a third party when that civil action involves a matter arising out of the same set of facts as or substantially similar facts to a criminal action prosecuted by the Solicitor's Office against the Client and which included substantial and personal participation by Lawyer when Lawyer was a deputy solicitor. However, there appears to be no problem with Firm continuing to represent Client in either the criminal or civil matter as long as Lawyer is screened from any participation in the matter and apportioned no part of the fee therefrom.
Opinion
Rule 1.11 allows a Lawyer to represent a private client in connection with a matter in which the Lawyer participated personally and substantially as a public officer if the appropriate government agency consents after consultation. However, the comment section to Rule 1.11 of the Rules of Professional Conduct states: "This Rule prevents a Lawyer from exploiting public office for the advantage of a private client." Given the facts here, it appears this may be precisely what Lawyer is doing if he undertakes to represent Client. The Solicitor's Office is not opposed to the Firm "representing" Client, but does this constitute consent after consultation as required by Rule 1.11(a) and does the consent extend to the Lawyer representing the Client in the insurance claim?1
In advancing Client's claim against the insurance company, Lawyer will be dealing with the same core set of facts that existed when Lawyer was with the Solicitor and then prosecuting Client. While those facts are unknown, it is difficult to believe that Lawyer as prosecutor, now Lawyer as claimant's attorney, is not ethically compromised in some fashion. Lawyer has, we presume, interviewed police inspectors and studied their investigative work. The trust and confidence of these investigators was gained by Lawyer as they engaged in what they must have believed were free, frank, and privileged discussions with Lawyer. Substantial evidence has been gained. Can Lawyer now use this information and evidence in the civil action? We think not. To do so we would be inconsistent with Rule 1.11, and allow the Lawyer to have exploited the office of Solicitor to the advantage of a private client.
Even if the solicitor's consent mitigates the ethical issues raised here, one must ask, does the solicitor's consent extend to release of confidential information gained during Lawyer prosecution of Client? The Rules of Professional Conduct clearly require the appropriate government agency to consent not only to the representation, but to the disclosure of confidential information. See Rule 1.6, Rules of Professional Conduct.
Rule 3.3 must also be consulted. If Lawyer gained knowledge of incriminating evidence against Client while a deputy solicitor, Failure to disclose that evidence to the Court conflicts with Rule 3.3(2). Conversely, Lawyer desire to honor Rule 3.3 may put him at odds with Client. For that matter, does Lawyer have Client's consent to represent client in this matter, after appropriate consultation. Rule 1.7(b)?
A comment to Rule 1.9 states: "So also a Lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil proceeding against the government concerning the same transaction." This is perilously close to our given factual situation, and our committee does not believe that the solicitor's simple "no objection" to the representation cures the ethical dilemma. Reference is also prayed to Rule 1.11(c)(2), should it apply to the given factual situation.
South Carolina Code Ann. § 17-1-20 should also be considered. While this statute addresses only a sitting prosecutorial officer, it nevertheless beckons us to the conclusion that it would be inappropriate for Lawyer to represent Client in this case.
Lawyer should be cognizant that Rule 1.11 is expressly designed to prohibit a Lawyer from exploiting public office for the advantage of a private client. Lawyer would not be permitted to represent client against insurance company if, in doing so, Lawyer would be exploiting his prior public office. S.C. Bar Ethics Advisory Opinion 90-15. Unfair advantage may inure to a private client's benefit by reason of access to confidential government information obtained only through the Lawyer's previous service as a solicitor.
1 We find it astonishing that the Solicitor would properly consent to this representation, as it would potentially compromise the Solicitor's relationship with police inspectors. In addition, it would be wise to inquire whether the local solicitor's office, as compared to the Attorney General's office, really is the appropriate state agency to give consent. After working closely with, let us say, the state police arson investigator in preparing for the criminal trial, Lawyer now is blessed with a wealth of information for a hostile cross-examination in the civil trial. This would seem to be contrary to the best interests of the Solicitor's Office, as well as the citizenry of South Carolina.