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 93-25
Client and municipality were adverse parties to an administrative proceeding before a state agency. The law firm undertook representation of the client after the final agency decision and initiated an action for judicial review on behalf of the client seeking relief adverse to the municipality's interest. The municipality is a party to the judicial review action.
Question:
Should a law firm undertake or continue representation of a client in a matter in which a municipality is an adverse party where a member of that law firm also serves as a member of the city council of that municipality?
Summary:
Rule 1.11 and Rule 1.7(b) preclude such representation if the representation is limited by the lawyer or firm's responsibility to other clients or third parties. The client must consent after notice and the lawyer on council must be screened. If the lawyer on council participated personally and substantially as a public officer or employee, then written notice must be given to the municipality.
Opinion:
Rule 1.11 provides that a lawyer shall not represent a private client in connection with a matter in which the lawyer has participated personally or substantially as a public officer or employee unless the appropriate government agency consents after consultation. The Rule continues that no lawyer in a firm in which that lawyer, the public officer or employee is associated may undertake or continue representation unless the disqualified lawyer (public officer) is screened from any participation, is apportioned no part of the fee, and written notice is promptly given to the appropriate governmental agency. The Rule continues to caution the lawyer against utilization of confidential government information. The lawyer/public officer having confidential information acquired during his public service may not represent a private client whose interests are adverse. Subparagraph B. of Rule 1.11 provides that a firm may undertake or continue representation only if the disqualified lawyer is screened and apportioned no part of the fee.
Rule 1.7(b), the general conflict of interest rule, provides that a lawyer shall not represent a client if the representation is materially limited by the lawyer's responsibility to other clients or other third parties. The lawyer must believe that the representation will not be adversely affected and the client consents after consultation.
The interplay of these rules has been addressed in prior opinions of this Committee. Advisory Opinion 90-35 (1/91) provided that a lawyer who also served as a county council member could represent a client in a suit against a county official only if the lawyer reasonably believed his responsibilities as council member would not adversely affect the representation of the client, and he obtains the client's consent. The opinion cautioned that the lawyer should consider whether he possessed confidential information not available to the general public, whether there was a long- standing relationship with the county official or any prior representations taken for that official or that department.
In Advisory Opinion 91-05 (5/91), a lawyer who served as a county attorney or town attorney and his firm were precluded from representing clients against the town or county, representing criminal defendants arrested by law enforcement officers in the county or town, representing criminal defendants before magistrates or judges in the town or county, and appearing in probate court or before any boards or agencies of the county or town.
In Advisory Opinion 91-16 (8/91), a lawyer who was a county council member was not automatically disqualified from representing clients in local magistrate's court despite the fact county council was responsible for allocating facilities for the magistrate's court and determining the magistrate's compensation; however, the opinion cited the opinions of the State Ethics Commission suggesting that representation should not be undertaken. See also State Ethics Commission Opinion 83-004.
Finally, in Advisory Opinion 92-10 (4/92), a lawyer in a firm with another lawyer who served on the board of a county social services department could represent defendants in child neglect and abuse proceedings brought by the department so long as the department and the defendants consent. See also the Ethics in Government Act.