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 90-45
The son of a circuit court judge is employed by the Public Defender's Office.
Question:
Does the employment of a circuit court judge's son within a Public Defender's Office create a conflict of interest barring the entire Public Defender's Office from appearing before the circuit court judge?
Summary:
The Rules of Professional Conduct would not prohibit members of the Public Defender's Office from appearing before the circuit court judge.
Opinion:
Rule of Professional Conduct 1.8 (i) governs conflicts of interest created by the existence of a familial relationship among participants in a legal matter, and states as follows: A lawyer related to another lawyer as a parent, child, sibling or 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.
Nothing in the text of the Rule or its related Comments indicate that either the son or members of the Public Defender's Office could not properly appear before the judge under the facts presented here.
In addition, Rule 1.10, governing imputed disqualifications, does not apply to conflicts arising under Rule 1.8 (i). Thus, even if the son were deemed to be disqualified by Rule 1.8 (1), that disqualification would not be imputed to other members of the Public Defender's Office.
Nonetheless, reference is made to Canon 3 (c) of the Code of Judicial Conduct, which states as follows:
(1) A judge should disqualify himself in a proceeding in which his impartially might reasonably be questioned, including but not limited to instances where: (d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (ii) is acting as a lawyer in the proceedings. Clearly, Canon 3 (c) would prohibit the judge from participating in matters in which his son was acting as a lawyer. Yet, as with Rule of Professional Conduct 1.8 (i) above, there is nothing in Canon 3 (c) which would mandate recusal from any and all cases involving the Public Defender's Office.
Significantly, it would appear that any potential for abuse could be removed by the solicitor's knowledge of and acquiescence in the situation. In this way, the solicitor could move for recusal in any case in which it was deemed appropriate.
In summary, nothing in the Rules of Professional Conduct or the Code of Judicial Conduct would prohibit members of the Public Defender's Office from appearing before the judge.
(Note Rule 8.4 (f) "Misconduct" should also be reviewed).