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 93-02
An attorney is elected to public office and as a result acquires the power, shared among other public officials, to participate in appointing the five members of a County Fire Commission.
The attorney on occasion represents the County Fire Commission in litigation on an hourly fee basis.
Questions:
1. May the attorney continue to represent the County Fire Commission in future litigation?
2. May the attorney continue to represent the Fire Commission in litigation which was pending at the time the attorney was elected to public office?
Summary:
The Rules of Professional Conduct do not prohibit the attorney from representing a Commission whose members he participates in appointing. Thus, consistent with the Rules, the attorney may continue to represent the Commission in litigation in progress at the time of his election to public office.
This committee expresses no opinion as to whether the facts presented would involve a violation of the rules of the State Ethics Commission or relevant state ethics legislation.
Opinion:
The ethical aspects of this situation arise out of the attorney's official power to participate in appointing Commission members who, presumably, in turn decide who to h ire as litigation counsel for the Commission. The attorney could conceivably condition a vote for appointment to the Commission upon the appointee's agreement to then hire the attorney as the Commission's litigation counsel.
As an initial matter, it should be noted that the attorney does not wield the sole and exclusive appointive power, but rather shares this power with other public officials. This dilution of appointive power serves to check the ability of any one official to advance his or her singular interests through abuse of the appointive power.
In addition, it must be assumed that no one Commissioner wields the exclusive authority to hire or fire litigation counsel for the Commission. Thus, the attorney's ability to control the hiring practices of the Commission through the appointment of one Commissioner is presumably limited. The lawyer may not abuse the power over Commission appointments in order to influence the hiring of litigation counsel.
The Rules of Professional Conduct, to which the advice of this Committee is limited, do not specifically address this situation. For example, the scenario does not involve a conflict between current or former clients (Rules 1.7 and 1.9) or successive government and private employment (Rule 1.11), because there is only one client and one employer involved here, the Commission.
The lawyer should be aware that in the course of representing the Commission the attorney might receive confidential information about conduct by one or more or the individual commissioners, leading the attorney, in his or her capacity as a public official, to seek dismissal or censure of the Commissioner(s), or to oppose a Commissioner's reappointment to the Commission.
Were this situation to arise, the restrictions imposed by Rules 1.6 and 3.3 would not doubt govern the attorney's disclosure of the confidential information.
Finally, in dealing with individual Commissioners, the attorney should be careful to faithfully comply with the requirements of Rule 1.13 (Organization as Client), especially Rule 1.13(d) requiring the attorney to identify the client when dealing with constituent members of the organization.
Again, this committee expresses no opinion as to whether the facts presented would involve a violation of the rules of the State Ethics Commission or relevant state ethics legislation.