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 94-28
A lawyer in private practice has been retained by the Town of X to represent the town in a contractual dispute with the Department of Corrections ("SCDC") which will require litigation. The lawyer has a contract with the Department of Social Services ("SCDSS") in an adjoining county to provide legal representation in matters related to adult and child protective services in the Family Courts. May the lawyer accept representation of a municipality to litigate a contractual dispute with a different state agency?
Summary:
The lawyer is not ethically prohibited from representing the municipality in a contractual dispute with the Department of Corrections, despite the fact that the lawyer has a contract with a different state agency to provide legal services.
Opinion:
SCACR 407, Rule 1.7 provides: "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..." SCDSS and the SCDC are two separate and distinct agencies under the State of South Carolina. While they are both statewide agencies, there does not appear to be any relationship between the two agencies from a supervisory, administrative, etc. perspective. They function without any interrelationship or commonality between the two agencies, other than the fact they are agencies of the State of South Carolina.
This opinion can be distinguished from S.C. Bar Advisory Opinion 94-17. In Opinion 94-17 the question addressed by this committee was whether members of a lawyer's firm should represent a defendant or a Guardian ad Litem in SCDSS cases, when the lawyer was a contract or part-time attorney with the SCDSS. The committee concluded neither the lawyer nor members of his or her firm should represent a defendant or Guardian ad Litem in SCDSS cases, even when those cases were in a different county from that in which the lawyer was retained as a contract or part-time SCDSS attorney.
The committee focused on the fact that a defendant's interests are normally adverse to the SCDSS, and the interests of the Guardian ad Litem could be adverse to the interests of the SCDSS. The committee assumed that SCDSS, as a statewide agency, was the client.
While the committee does not make any legal finding as to who is the lawyer's client, it appears that the SCDSS and SCDC are not the same client.1 Accordingly, the lawyer is not ethically prohibited from representing the municipality in a contractual dispute with the Department of Corrections, despite the fact that the lawyer has a contract with a different state agency to provide legal services.
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1 This opinion takes a narrow view and is consistent with prior AO 92-16.