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 90-10
A member of a law firm has become or may become a part-time municipal judge before whom matters of bonds, preliminary hearings and municipal level traffic and criminal offenses are heard.
Question:
1. Can law partners of the municipal judge appear as counsel before other judges in the same municipal court where their partner serves?
2. If the part-time judge withdraws from the partnership and only shares office space with the partnership, would his former partners then be allowed to appear in the municipal court before the other judges of that court?
Summary:
1. The South Carolina Code of Judicial Conduct, provides in the Compliance provisions that a part-time judge should not practice law in the court on which he serves. The general rules of imputed disqualification would also bar the part-time judge's law partners from also practicing before that court.
2. Withdrawal from the partnership, but continuing to share office space with the former partners, most likely constitutes a "firm" within the meaning of Rule 1.10. The analysis under that rule is fact specific but if the individuals had presented themselves as a partnership to the public before and continue to occupy the same office space, the public would be most likely led to believe that they continued to conduct their practice as a firm.
Opinion:
1. South Carolina Supreme Court Rule 33, the South Carolina Code of Judicial Conduct, provides in the Compliance provisions that "a part-time judge . . . (2) should not practice law in the court on which he serves or in any court subject to the appellate jurisdiction of the court on which he serves, or act as a lawyer in any proceeding in which has served as a judge or in any other proceeding related thereto." It is thus clear that the part-time judge could not appear before another judge in that municipal court.
The issue of whether the part-time judge's disqualification is imputed to his partners is governed by S.C. Rule of Prof.
Conduct 1.10. Subsection (1) of that Rule provides that "(w)hile 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." Rules 1.7, 1.8(c), 1.9 and 2.2 do not specifically address disqualification in the context of a part-time judge. This gap is understandable since the Code of Judicial Conduct generally covers that type of issue. Prior DR 5-105(D) also lacks a specific reference to part-time judges. The spirit and intent of Rule 1.10, however, is to make clear that if a member of a law firm is disqualified from certain representation, then generally his or her partners are also disqualified. See, e.g. W. E. Bassett Co v. H. C. Cook Co., 201 F. Suppl. 821 (D. Conn. 1962).
In this situation, having a law partner as a judge on the same court the partner appears before would create the appearance that the partner may have undue influence on that court. The disqualification of the part-time judge should therefore be imputed to his or her partners.
2. The general imputation of disqualification rule set forth in Rule 1.10(a) applies to lawyers "associated in a firm." The comment to the Rule defines or sets forth general guidelines for what constitutes a "firm" under the Rules of Professional Conduct. The comment states in part as follows:
Definition of "firm" . . . Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for the purpose of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as it the fact that they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the rule that is involved. A group of lawyers could be regarded as a firm for the purpose of the rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the rule that information acquired by one lawyer is attributed to the other.
Comment to Rule 1.10.
None of the details of the practice arrangement are set forth in the hypothetical presented and the factual situation would need to be more fully developed for a more definitive opinion. It is unlikely however that the appearance of having an undue influence over a tribunal that would exist if a part-time judge was in a partnership could be sufficiently avoided if the part-time judge withdrew from the partnership and continued to share space with it.