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 94-17
If Lawyer A in private practice is a contract or part-time attorney with the South Carolina Department of Social Services "SCDSS" to represent the agency in Family Court cases in one county, may members of his or her firm be appointed to represent a defendant or a Guardian ad Litem in a SCDSS case in another county?
Summary:
Neither Lawyer A nor members of Lawyer A's firm should represent a defendant or a Guardian ad Litem in SCDSS cases, whether appointed or retained, in other counties.
Opinion:
"While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c) or 2.2." SCACR 407, Rule 1.10(a). If it is determined that Rule 1.7 applies and prohibits Lawyer A from representing a defendant or a Guardian ad Litem, all members of Lawyer A's firm will be similarly prohibited from entering into such a representation. Therefore, it is necessary to consider whether or not Lawyer A is prohibited from representation.
The applicable sections of Rule 1.7 provide "A lawyer shall not represent a client if the representation of that client will be directly adverse to another client..." and " A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client...." Since this question asked specifically about matters involving the SCDSS, this opinion will limit its examination to such matters.
The structure of the SCDSS, its county offices, and the contract with the part-time attorneys will shed some light on this matter. SCDSS is a statewide agency. Each county in South Carolina has an office of the SCDSS, and those offices are commonly referred to by the county name, (e.g. the Richland County Department of Social Services.) Despite the fact that the county offices bear the name of the county in which they located, the state office maintains supervision and some administrative functions over the county offices. While the committee does not make any legal finding of who is Lawyer A's client, it appears that SCDSS is a statewide agency and, although the contract attorney only acts within a specific geographic area, the client is the statewide agency.
Based upon the assumption that the client is SCDSS, Rule 1.7 would prohibit any contract attorney from undertaking or being appointed to any representation of any person whose interests are, or might be, adverse to the SCDSS. Since a defendant's interests are normally adverse to the SCDSS, a contract attorney should not represent any defendant in any matter in Family Court involving the SCDSS, regardless of the county in which the case is brought. The interests of the Guardian ad Litem could be adverse to the interests of the SCDSS. In such a case, a contract attorney should not represent any Guardian ad Litem in Family Court in any case involving the SCDSS. As stated above, pursuant to Rule 1.10, since the contract attorney is barred from such representations, any member of the contract attorney's firm would be similarly barred from representation.
It is necessary to note that Rule 1.7 allows representation when all clients involved consent, in writing, to the representation. If proper waivers were signed, it would be possible for contract attorneys to represent a defendant or a Guardian ad Litem.