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 91-05
(Must be read in conjunction with SC Bar Ethics Advisory Opinion 92-16)
Facts:
One member of a law firm is the attorney for the local county and another member is the attorney for the local town. The duties of the town attorney include advising the municipal judges and police about matters for which they have questions, drafting and rendering advice about criminal ordinances, and advising the town council regarding legal issues including criminal matters. The duties of the county attorney include advising the sheriff's department regarding legal issues including arrests, search warrants and other criminal matters, advising magistrates regarding civil and criminal legal issues, and advising the probate court regarding legal issues in that court and "personal matters" and advising other county departments and their personnel.
One family court has agreed that no member of this firm can be appointed to represent parents or children in neglect and abuse cases. In another county however a family court judge has agreed not to appoint the county attorney but does appoint other members of the firm in such cases.
Questions:
(1) Is it a conflict of interest for a county attorney and/or members of his firm to represent clients in abuse and neglect cases in that county?
(2) Is it a conflict of interest for any members of the firm to represent criminal defendants arrested by any law enforcement agency of the county or town represented by a member of the firm?
(3) Is it ethically permissible for any member of the firm to represent criminal defendants who appear before a magistrate or municipal judge within the town county?
(4) Is it ethically permissible for any member of the firm to represent criminal defendants who appear before a circuit court within the town or county represented?
(5) Is it ethically permissible for any member of the firm to appear in a probate court they represent?
(6) Is it ethically permissible for any member of the firm to appear before any other boards or agencies of the town or county which they represent?
Summary:
(1) It is a conflict of interest for a county attorney or other members of his firm to represent a party whose interests are adverse to those of the town or county represented by a member of that firm in abuse and neglect cases.
(2) It is a conflict of interest for a county or town attorney or other members of his firm to represent criminal defendants arrested by any law enforcement agency of the county or town represented.
(3) It is impermissible for any member of the firm to represent criminal defendants who appear before a magistrate, municipal judge or probate court within the county or town represented.
(4) It is not a conflict of interest for a member of the firm to represent criminal defendants before a circuit court within the county or town represented unless those defendants were arrested by a law enforcement agency of the county or town represented.
(5) It is impermissible for any member of such a firm to appear in a probate court they represent.
(6) It is impermissible for any member of the firm to appear before any boards or agencies of the town or county represented.
Opinion:
South Carolina Rule of Professional Conduct 1.7(a) provides that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client. The county would constitute a client of the firm because it is receiving legal advice from a member of the firm. It would constitute a conflict of interest for a county attorney or members of his firm to represent a party adverse to the county in abuse and neglect cases.
Under S.C. Rule of Prof. Conduct 1.10(a), any disqualification resulting from a conflict of interest on the part of any attorney in a firm will be imputed against other members of the same firm. Therefore, other members of the firm of which the county attorney is a member would also be disqualified from being appointed in such abuse and neglect cases.
The general rule against conflicts of interest articulated in Rule 1.7(a) would also prohibit a county or town attorney or any member of his firm from representing criminal defendants arrested by law enforcement agencies of the county or town represented. The duties of a county or town attorney would create a conflict of interest with any such criminal defendants and Rule 1.10(a) would impute that disqualification to other members of the firm. This finding is consistent with the conclusions of prior A.B.A. Ethics Advisory Opinion No. 38-186. South Carolina Code of Judicial Conduct Canon 3(C)(1) compels a judge, whose impartiality in a proceeding might reasonably be questioned, to disqualify himself. Neither a county attorney, whose duties include advising magistrates and probate court judges, or a town attorney whose duties include advising municipal court judges, could reasonably appear before a judge he is retained to advise without raising the question of impartiality. However, it would not serve the purpose of the rule for such a judge to disqualify himself because any other judge in the same court would suffer the same conflict. The Official Comment to S.C. Rule of Prof. Conduct 3.5 requires lawyers to avoid contributing to a violation of the Code of Judicial Conduct. Under these circum- stances it would fall to the county or town attorney to resolve the question of impartiality by refraining from bringing any cases before a judge he is retained to advise. Failure to do so would constitute a violation of Rule 3.5.
The general rule of imputed disqualifications set forth in Rule 1.10(a) provides that all members of a firm are prohibited from the representation "when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8(c), 1.9 or 2.2." The disqualifying problem in this situation does not stem directly from the rules cited in Rule 1.10; however, the problem is most closely analogous to a conflict of interest situation described in Rule 1.7. The question of impartiality in this context would apply to other members of the firm due to the closeness of the relationship. The disqualifications would therefore be imputed to the other members of the firm.
Nothing in the South Carolina Rules precludes a county attorney or town attorney or a member of his from appearing before a circuit court within the county or town represented unless those defendants were arrested by a law enforcement agency of the county or town represented, as previously discussed. This opinion is based upon the facts presented wherein the attorney is actively giving legal advice to the respective law enforcement agencies.