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 92-16
Must be read in conjunction with S.C. Bar Advisory Opinion 91-05)
Facts:
The Ethics Advisory Committee has received several inquiries requesting modification or clarification of Advisory Opinion 91-05 issued in May 1991. The facts are stated therein.
Summary:
If a county or municipal attorney provides legal services to a particular agency or department of the county or city or to particular employees of officials of the county or city, neither the attorney nor any member of the attorney's law firm should represent parties with interests directly adverse to those clients. However, if the county or municipal attorney does not provide legal services to all parts of the city or county represented, the attorney may be able to represent parties with interests adverse to certain city or county agencies or departments, if each client, including the city or county, consents after consultation. To the extent that this opinion is inconsistent with Advisory Opinion 91-05, the earlier opinion is modified.
Opinion:
In Advisory Opinion 91-05, this Committee determined that neither a county attorney nor members of the attorney's firm could represent a party with interests adverse to the county in an abuse and neglect case. We also indicated that neither a county or city attorney nor any member of the attorney's firm may represent criminal defendants if either (i) the defendants were arrested by a law enforcement agency of the city or county or (ii) the defendants appeared before a magistrate judge, or probate court within the county or city represented. It was our opinion that the prohibition does not extend to defendants appearing in the circuit court unless the defendants was arrested by an agency of the city or county. We further indicated that a city or county attorney should not appear in a probate court that the attorney represented, nor should the attorney appear before any boards or agencies of the city or county represented. Subsequent inquiries have pointed out that the responsibilities of county and municipal attorneys vary across the state, particularly when the position is part-time. Upon further consideration of the issues raised in Advisory Opinion 91-05, we hereby modify that opinion as set forth herein. We assume at the outset that the client of a county or city attorney is the county or city government as a comprehensive entity. If it were shown as a matter of law that the lawyer represented only a portion of city or county government, the advice rendered herein might well differ. When a city or county retains a lawyer for legal services, we believe that a conflict of interest arises under Rule 1.7 whenever the city or county lawyer simultaneously represents any party with interests directly adverse to the position or interests of any part of the city or county government. In the litigation contexts that are the subject of the inquiry in Advisory Opinion 91-05, the interests would be directly adverse. Rule 1.7 provides that when such a conflict exists, the lawyer may proceed with the conflicting representation if (i) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and (ii) each client consents after consultation. When a county or city attorney has provided legal services directly to an employee, official, board, agency, department, or other part of city or county government and that person or entity is directly involved in litigation, we do not believe it would ever be reasonable for the lawyer to represent a person with adverse interests in that litigation. Thus, if a county attorney has directly represented a county DSS office, that attorney should not represent adverse interests in abuse and neglect cases prosecuted by that office. Rule 1.10 would impute the disqualification to other members of the lawyer's firm. However, if litigation involves only parts of city or county government to which the county attorney has not provided direct legal services, we believe that a lawyer reasonably might conclude that adverse representation in a particular matter would not adversely affect his or her relationship with the city or county. In that situation, the lawyer could proceed with the conflicting representation if each client, including the city or county, consented after consultation. Thus, if the lawyer has not provided any legal services to the county DSS office, the lawyer may reasonably conclude that representation of an adverse party in an abuse and neglect case could proceed after full consent is obtained.