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 91-17
A lawyer currently employed as counsel for the South Carolina Children's Foster Care Review Board System formerly was employed as an Assistant Solicitor handling abuse/neglect actions.
Questions:
1. What, if any, potential conflicts of interest may arise in the lawyer's representation of the South Carolina Children's Foster Care Review Board System as a result of the lawyer's former position as an Assistant Solicitor handling abuse/neglect actions?
2. In those actions in which the lawyer has had prior involvement as a Assistant Solicitor, to what extent may the lawyer participate on behalf of the Board without committing an ethical violation?
3. Should conflict(s) arise, what would be the appropriate action(s) for the lawyer to take to avoid committing an ethical violation?
Summary:
1. Concerns regarding potential conflicts under these circumstances are addressed in Rule 1.11 of the Rules of Professional Conduct in the Comment thereto.
2. The lawyer may not participate in any matter in which he/she participated personally and substantially as an Assistant Solicitor unless under applicable law no one is, or by lawful delegation may be, authorized to act in his/her stead in the matter.
3. In the event a conflict should arise, the lawyer should delegate the particular matter to another lawyer either within or without the agency as may be permitted by law.
Opinion:
1. It is not within the purview of the Ethics Advisory Committee to attempt to speculate or enumerate all potential conflicts which may arise under these facts. However, reference is made to Rule 1.11 (c) (1) which provides:
Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not: Participate in a matter in which the lawyer participated personally and substantially while in private practice or non-governmental employment, unless under applicable law no one is, or by lawful designation may be, authorized to act in the lawyer's stead in the matter. When the Rule is read in conjunction with the Comment thereafter, it is readily apparent that the concerns which are addressed by the Rule involve the prohibition against representing adverse interests and the protections afforded former clients.
Particularly applicable to this case in the Comment is the statement that:
(w)hen the client is an agency of one government, that agency should be treated as a private client for the purposes of this Rule if the lawyer thereafter represents an agency of another government.
2. Rule 1.11(c) (1) as set forth hereinabove sets forth the matters in which the lawyer may participate under these circumstances. Further reference is made to Rule 1.11(d)(1) which provides:
As used in this Rule, the term "matter" includes: Any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties.
3. If a conflict arises the lawyer should delegate or assign the matter to another lawyer in the agency and take appropriate action to ensure that the disqualified lawyer is screened from any participation in the matter. If there are no other lawyers in the agency, the lawyer should take appropriate action to arrange for outside counsel to handle the particular matter as may be permitted by law.