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 92-18
1. Is it proper for a part-time public defender in one county to represent paying criminal defendants in a different county?
2. Is it proper for a part-time public defender to represent paying criminal defendants in the same county or in the same judicial circuit in which he/she practices as a public defender?
Summary:
The Rules of Professional Conduct do not prohibit a part-time public defender from representing paying criminal defendants in any county. However, such representation would appear to be in violation of the Defense of Indigents Act in South Carolina.
Opinion:
South Carolina Bar Advisory Opinion 91-19 stated that it would not be a violation of the Rules of Professional Conduct for a part-time public defender in one county to represent criminal defendants in other counties. Furthermore, there is no ethical prohibition against a public defender representing criminal defendants in the county and judicial district in which he/she practices as a public defender, provided that such cases are unrelated to the criminal matters handled as public defender.
While it is beyond the purview of this Committee to render opinions on substantive matters of law, it should be pointed out that the Defense of Indigents Act in South Carolina appears to specifically prohibit the activities contemplated in this question. S.C. Code Ann. S 17-7-60(e) states in pertinent part: "...public defenders and assistant public defenders shall not represent persons charged with a criminal offense under the laws of this state in their private practice of law."