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 06-09
SC Rules of Professional Conduct 3.7, 3.8, 5.2(a) and 5.4(c)
Facts:
Lawyer is to become legal advisor and detective with a municipal police department. Lawyer will be sent to the police academy and will be a certified police officer with full arrest powers. Part of Lawyer’s job duties will include representing the city in jury trials as prosecutor for all cases made by city police officers. Lawyer may have supervisory duties over other officers and will have to answer to his/her superiors as well. Lawyer will have full discretion in the prosecution of the city’s cases.
Question:
Can an active member of the South Carolina Bar be employed by a city police department where the lawyer will be a certified police officer with full arrest powers and with supervisory authority over other law enforcement officers within the department and also serve as city solicitor and prosecute all criminal violations in municipal court?
Summary of Opinion:
While there is no ethical prohibition to the proposed situation found in the Rules of Professional Conduct, it is incumbent on a lawyer to adhere to Rules 3.7, 3.8, 5.2(a) and 5.4(c). Further, the Committee wishes to stress that the prosecution of all cases must remain in the full discretion of the lawyer.
Opinion:
The role of a lawyer as a prosecutor presents several issues. Rule 3.7 of the Rules of Professional Conduct provides that a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless certain prerequisites are satisfied. Rule 3.8 imposes special responsibilities upon a prosecutor. Although no portion of Rule 3.8 specifically prohibits the proposed conduct, Comment (1) provides: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the Defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence...” Arguably, such a responsibility could be compromised if the lawyer is subject to supervision or even in general answers to a direct or indirect supervisor within the police department hierarchy.
On the other hand, having a lawyer employed as a police officer would obviously serve to increase the consciousness of the police department in general for due process and thereby would actually serve the public more efficiently. While this is the general rule, a contrary argument may be made that if the lawyer were not inclined to protect the rights of criminal defendants, his specialized knowledge could actually promote increased violations of due process. While most likely the latter situation is not the case, the purpose of conflict of interest rules in general is to prevent such conflicts in the first place.
The lawyer must be particularly mindful of the provisions in the Rules which require the lawyer to make independent judgments regarding professional conduct. See Rules 5.2(a) and 5.4(c).
It would appear to be proper for a lawyer both to be a police officer and to take part in the prosecution of cases, keeping in mind Rules 3.7 and 3.8. However, the Committee believes that there may be situations where there are problems, including where the lawyer himself was the investigating or arresting officer and where the lawyer may be subject to undue influence or interference from another source, in which case the Rules of Professional Conduct override all else.