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 93-01
A part time public defender working in a public defender corporation was appointed to represent a post conviction relief applicant. The post conviction relief alleges error by another public defender employed by the same corporation. They do not have common offices, share employees, or share cases.
Question:
When part time public defenders have separate offices, is it proper for a part time public defender to represent an applicant for post conviction relief alleging error by another public defender who represented the same client at trial? Can the post conviction relief applicant waive the conflict of interest objection upon full disclosure of the facts?
Summary:
Under the facts described, where separate offices are maintained by each public defender, there would not be a single public defender's office for purposes of imputing disqualification under Rule 1.10.
Opinion:
In Advisory Opinion, 92-21 this committee addressed a public defender office being equated to a "legal services organization" and therefore under Rule 1.10 "lawyers employed in the same unit of a legal services organization constitute a law firm." Rule 1.7(a) & (b) would not allow as a general rule a lawyer to represent a client if that representation would be directly adverse to the interests of another client or if the lawyer's responsibility to another client would be affected except if the lawyer believes the representation would not adversely affect the clients and there is consent after consultation.
Rule 1.9(a)(b) & (c) would not allow representation of a client in a matter "in which that person's interests are materially adverse to the interests of a former client unless the former client consents after consultation." Rule 1.10(a)(b) & (c) extends the disqualification to other members of the same firm.
The questions presented do not involve a new client but rather a former client of the public defender's corporation being represented by another attorney in the corporation in a post conviction relief hearing. As long as there is no shared information among the public defenders that would be materially adverse to the client, the public defender should not be barred by a conflict of interest in representing the former client in a post conviction relief hearing.