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 90-15
Attorney A is the spouse of Attorney B. Attorney A and Attorney B are both employed as assistant solicitors in County X. Attorney A leaves the Solicitor's Office and becomes a partner in a private firm, while Attorney B remains employed as an assistant solicitor for County X. May Attorney A defend criminal cases in the Court of General Sessions for County X?
Questions:
1. May an attorney who was formerly an assistant solicitor defend criminal cases in the county where he served?
2. May an attorney whose spouse is an assistant solicitor defend criminal cases in the same jurisdiction?
Summary:
1. The former assistant solicitor cannot defend a private client in the county where he served if he participated personally and substantially in a matter concerning the private client while an assistant solicitor, unless the solicitor's office for which he formerly worked consents after consultation. Otherwise, the former assistant solicitor would not be barred from defense work due to his former employment.
2. The former assistant solicitor must inform the potential client of his spouse's position and, after consultation, obtain permission before undertaking any representation in which the spouse is personally involved.
Opinion:
1. A former assistant solicitor cannot defend a person in the county where he served if he personally and substantially participated in a matter involving the client when he was a public employee. Rule 1.11(a) of the Rules of Professional Conduct outlines when a former assistant solicitor can defend such a client, to wit:
"a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation." Therefore, before a former assistant solicitor may defend a person in a matter in which he, as a public employee, participated personally and substantially, he must consult with and obtain the consent of the solicitor's office. In addition, no attorney in his firm may "knowingly undertake or continue representation in such a matter" unless the following requirements set forth in Rule 1.11(a) are met:
(1) [t]he disqualified lawyer is screened from any participating in the matter and is apportioned no part of the fee therefrom; and, (2) [w]ritten notice is promptly given to the appropriate governmental agency to enable it to ascertain compliance . . . .
If the former assistant solicitor possesses information that he knows is confidential government information about a person acquired when he was a public employee, he may not represent a potential client if the client's interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. See Rule 1.11(b). Moreover, the firm with which the former assistant solicitor is associated may only undertake or continue representation in the matter if the attorney is disqualified, screened from any participation in the matter, and is apportioned no part of the fee therefrom. See Rule 1.11(b). For further discourse on the terms "matter" and "confidential government information," please see Rule 1.11(d) and (e).
Rule 1.11 is expressly designed to prohibit a lawyer from exploiting public office for the advantage of a private client, as indicated in the comment to Rule 1.11. Unfair advantage(s) may inure to a private client's benefit by reason of access to confidential government information about the client's adversary obtainable only through the former assistant solicitor's government service. See Comment to Rule 1.11.
A former assistant solicitor may defend a person in the county where he served if he did not personally and substantially participate in a matter involving the potential client while he was a public employee.
2. The question of Attorney A's involvement in criminal defense matters while his spouse is still working as an assistant solicitor is more difficult. In the final analysis it will require a judgment call by both attorneys as to whether independent, aggressive representation and client confidentiality can be maintained with partners in a marital relation representing adverse parties.
Rule 1.8(i) provides:
"(i) A lawyer related to another lawyer as . . . spouse shall not personally represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship." This duty would apply to both spouses. The assistant solicitor should consult with the solicitor with respect to any case in which her spouse is involved and have the permission of the solicitor for her personal involvement in the matter. Even with the permission of their respective clients the attorney spouses would have to remain sensitive to their ongoing responsibilities to maintain client confidences and insure that the representation of the client is not compromised by consideration for the spouses' interest.
As stated in the ABA Formal Ethics Opinion No. 340 (September 23, 1975):
Even though the representation by husband and wife of opposing parties is not a violation of any disciplinary rule, the possibility of a violation of DR5-101 (now Rule 1.7(b)), in particular, is real and must be carefully considered in each instance. If the interest of one of the marriage partners as attorney for an opposing party creates a financial or a personal interest that reasonably might affect the ability of a lawyer to represent fully his or her client with undivided loyalty and free exercise of professional judgment, the employment must be declined.
While disqualification from cases where a spouse would represent an adverse interest is not mandatory, it should only be undertaken by spouses with extreme caution after full consultation with their respective clients.
(Comment from Rule 1.8: "Family Relationships Between Lawyers": Paragraph (i) applies to related lawyers who are in different firms. Related lawyers in the same firm are governed by Rules 1.7, 1.9, and 1.10. The disqualification stated in paragraph (i) is personal and is not imputed to members of firms with whom the lawyers are associated. The South Carolina version slightly modified the model version by inserting "personally".)