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 92-10
A member of a law firm serves on the Board of Directors of the County Department of Social Services, which gives supervisory direction and receives summaries and reports on various files being handled by the department. The Board is responsible for insuring that daily management of the department is properly handled by the director and his staff.
Question:
May another member of the firm represent defendants in child neglect and abuse proceedings brought by the agency?
Summary:
Members of the lawyer's firm may represent defendants in child neglect and abuse proceedings brought by the agency if both the agency and the defendants are fully advised of the firm's roles and agree to the representation.
Opinion:
The agency is not a client of the firm by virtue of its member's service on the board of the agency. If the agency is viewed as a "legal services organization," Rule 6.3 directly resolves the issue. A lawyer who serves as an officer of such an organization is not in an attorney/client relationship with the organization. Comment to Rule 6.3. The agency is, however, a "third person" to whom the lawyer and his firm have obligations of the kind contemplated by Rule 1.7 (b).
Therefore, if the firm reasonably believes it can handle the appointment without adversely affecting its member's obligation to the agency, both the client and the agency may be advised of the situation and their consent to the appointment requested.
Even where consent is granted, the member of the firm serving on the board should not be present for discussion of specific matters handled by his firm. Nor should the board member receive or have access to DSS reports on such matters.
The agency's consent could be granted for a defined scope of appointments that may be made so that individual consent is not required from the agency each time an appointment is made. In that event, specific consent would be required on a case-by-case basis of each client whose case the firm is appointed to handle.