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 94-18
One civil service attorney represented an agency employee who is a member of the armed forces in connection with an investigation of the employee's alleged violation of law. The agency's attorney works in the agency's main legal office, is independent of the defense lawyer, and each have a separate chain of command. The investigation cleared the agency employee. Subsequently, the lawyer for the employee improvidently revealed to the agency lawyer that his client had been guilty of the charges and may have violated other laws.
Question:
Where a determination has been made by a government agency that there is insufficient evidence to support adverse action against one of its employees who has been accused of a violation of a law; and where an attorney for that agency, Lawyer #1, is subsequently informed by another of the agency attorneys who represented the accused in that proceeding, Lawyer #2, that the accused committed the offense alleged as well as other possible offenses; and, where the alleged offenses, if repeated, are likely to pose a danger to clients of the agency and expose the agency to possible liability, is Lawyer #1 permitted or required to inform the agency of the information divulged by Lawyer #2? What duty does Lawyer #1 and/or the agency have to take action on the information?
Summary:
A lawyer for a governmental agency who knows that an employee of the organization is engaged in action or intends to commit an act which is a violation of law which might reasonably be imputed to the organization and is likely to result in substantial injury to the organization, shall proceed as is reasonably necessary in the best interest of the organization.
Opinion:
This opinion deals only with the facts presented and the committee assumes that the separate legal divisions are the equivalent of separate law firms.
Rule 1.13(b) requires a lawyer for an organization, including a government agency, to proceed in the best interest of the organization. Where the lawyer knows that an employee of the organization is engaged in action or intends to commit an act which is a violation of law, the lawyer may take necessary measures to prevent harm to the organization or its clients, including the measures set forth in Rule 1.13(b) (1) - (3). In addition to the Rules of Professional Conduct, duties of lawyers employed by the government or lawyers in military service may also be defined by statutes and regulations of the specific agency or branch of service.
The duty of the lawyer to take action on the information in the context of a government agency or military organization is limited to fulfilling the requirements of the above stated rule; but, the military or government agency may have additional regulations which are applicable to this situation.
In this case, Lawyer #1 should also consider whether or not the conduct of Lawyer #2 amounts to a violation of requirements of Rule 1.6 "Confidentiality of Information", Rule 4.1(b) "Truthfulness in Statements to Others", and Rule 4.4 "Respect for Rights of Third Persons". This latter rule is particularly important where the conduct of Lawyer #2's client, if repeated, could pose a serious risk of injury or harm to third parties. If so, Lawyer #1 must consider whether or not the conduct raises questions as to Lawyer #2's honesty, trustworthiness or fitness as a lawyer sufficient to be reported pursuant to Rule 8.3 "Reporting Professional Misconduct".