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 93-18
Jane Doe is Chief Investigator in County X Public Defender's Office. Her spouse, John Doe, was recently promoted to the position of narcotics investigator in County X Sheriff's Department.
Jane Doe's duties include supervision of two investigators and a paralegal, coordination of investigative activities, and general office management. She performs investigative work for two lawyers who do not represent clients charged by County X Sheriff Department's narcotics division.
County X Public Defender assigns all clients charged by the narcotics division of County X Sheriff Department to a third lawyer, Richard Roe. Richard Roe directly supervises all investigative work performed on these cases. Jane Doe has no access to these files and has no supervisory authority over investigators while they are working on narcotics division cases. Personnel have been instructed not to discuss any narcotics division cases in any fashion with Jane Doe. All narcotics cases in which John Doe is chief investigating officer are conflicted out of the Public Defender's Office.
Questions:
1. Does employment of a sheriff department investigator's spouse in the public defender's office in County X create a conflict of interest?
2. Are County X Public Defender Office procedures concerning assignment and representation of clients prosecuted by County X sheriff department sufficient to avoid violation of ethical responsibility for nonlawyer assistants?
Summary:
1. Jane Doe, the spouse of the sheriff department's narcotics investigator, may serve as chief investigator in the public defender's office so long as Jane Doe does not assist or have access to information from lawyers directly adverse to parties under investigation by her spouse's division.
2. The Public Defender's Office procedures are adequate so long as they segregate clients and information relating to clients under investigation by the sheriff department's narcotics division from Jane Doe.
Opinion:
1. The Public Defender Office in County X may employ as its chief investigator the spouse of a County X sheriff department's narcotics division investigator. A per se conflict of interest arises only when a lawyer personally represents a client in a representation directly adverse to a client represented by the lawyer's spouse. The governing S.C. Rule of Professional Conduct 1.8(i) reads:
A lawyer related to another lawyer as parent, child, sibling or spouse shall not personally represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.
Because the South Carolina rule inserts "personally" in the model rule, the principle of imputed disqualification does not apply to any lawyer in the County X Public Defender office, such as, Richard Roe, with whom Jane Doe does not work as an investigator.
Although Jane Doe's employment is not per se improper, the possibility of conflict nonetheless exists. Potential conflict arises, for example, where a Public Defender client happens to be subject to both narcotics and other charges. In such instances full disclosure of the potential conflict to all concerned is advisable. "In any situation where a client or potential client might question the loyalty of the lawyer representing him, the situation should be fully explained to the client and the question of acceptance or continuance of employment left to the client for decision." ABA Formal Opinion 340.
2. County X Public Defender Office procedures concerning assignment and representation of clients prosecuted by County X sheriff department are sufficient to avoid violation of ethical responsibility for nonlawyer assistants. Lawyers in the Public Defender's Office have a duty to make reasonable efforts to ensure that the office "has in effect measures giving reasonable assurance" that the conduct of nonlawyer assistants such as Jane Doe is compatible with the lawyers' professional obligations. Rule 5.3 (a). Lawyers in the Public Defender's office with immediate supervision over Jane Doe are obliged to make reasonable efforts to ensure that later conduct is compatible with their professional obligations as lawyers. Rule 5.3 (b). The obligations owed all clients involve confidentiality, zealous advocacy and independent professional judgment. In other words, Public Defender office lawyers must see to it by means of office procedures and direct supervision that Jane Doe preserves client confidences and that she is not influenced in her work by her spouse's employment. To carry out these responsibilities, her clients and their files have been segregated from those under investigation by her spouse's office and all office personnel have been instructed to avoid any discussion of narcotics division cases.
However elaborate and effective these procedures may be, lawyers in the Public Defender's Office remain nonetheless responsible for conduct they themselves order or ratify, as well as for failure to avoid or mitigate in timely fashion any consequences of conduct by Jane Doe that threatens client interests. 5.3 (c). In the event that a conflict should arise, any lawyer knowing of the conflict should see to it that an investigator other than, and not supervised by Jane Doe, is given responsibility for the case as well as other reasonable remedial actions.