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 94-33A
Attorney A is employed by a State Agency ("Agency") as a member of its legal staff. The Agency periodically enters into procurement contracts and is therefore sometimes involved in protests concerning the letting of those contracts.
The protest process is a special administrative procedure that begins with a hearing before one of three Chief Procurement Officers, chosen depending upon the subject matter of the protest (State Procurement, State Engineer, Information Technology). These Chief Procurement Officers are all employees of the State Office of General Counsel. Decisions by the Chief Procurement Officers are reviewed by the State Procurement Review Panel ("Panel"), and its decisions are likewise reviewed by the Circuit Court.
Attorney A has been appointed by the Governor to serve as an administrative hearing officer on the Panel, which occasionally hears protest appeals involving Agency contracts. In his capacity as staff counsel, Attorney A would normally represent the Agency in matters before the panel.
Questions:
1. May Attorney A appear before a Chief Procurement Officer on behalf of the Agency, if he intends to recuse himself from the Panel if the matter is thereafter appealed?
2. May Attorney A appear in Circuit Court on behalf of the Agency in an appeal from the Panel, when he has recused himself from the Panel hearing on the matter?
3. May another member of the Agency legal staff appear before the Panel in a matter involving the Agency, when Attorney A has recused himself from serving on the Panel?
4. Does Attorney A's membership on the Panel prevent other members of the Office of General Counsel from appearing on behalf of the Agency before a Chief Procurement Officer, the Panel, or in the Circuit Court on matters involving the Agency, when Attorney A has recused himself from the Panel?
5. May Attorney A participate in Agency procurement matters such as contract negotiation and procurement law interpretation?
Summary:
The committee expresses concern over the mixture of judicial and advocacy functions as it relates to due process issues. The inquirer is again referred to the Code of Judicial Conduct as an additional source of information.
1. Attorney A is not prohibited from representing the Agency before a Chief Procurement Officer if he recuses himself from service on the Panel in any appeal involving that matter.
2. Attorney A is not prohibited from appearing in Circuit Court on behalf of the Agency in an appeal from the Panel, if he has recused himself from the Panel hearing on the matter.
3. The Rules do not prohibit another member of the Agency legal staff appearing before the Panel in a matter involving the Agency, if Attorney A has recused himself from serving on the Panel.
4. If Attorney A has recused himself from the Panel, then under the Rules of Professional Conduct his membership on the Panel would not prevent other members of the Office of General Counsel from appearing on behalf of the Agency before a Chief Procurement Officer, the Panel, or in the Circuit Court on matters involving the Agency.
5. Attorney A is not prohibited from handling Agency procurement matters so long as he does not sit on any Panel which hears appeals involving Agency procurement matters.
Opinion:
The committee expresses concern over the mixture of judicial and advocacy functions as it relates to due process issues. The inquirer is again referred to the Code of Judicial Conduct as an additional source of information.
In this Committee's view, Rule 1.7(b) of the Rules of Professional Conduct and In Re: Friday, 208 S.E.2d 535 (S.C. 1974) would prohibit Attorney A from serving on the Panel if he had maintained any involvement as counsel or advocate in a matter being reviewed by the Panel. However, if Attorney A recuses himself from service on the Panel in such matters, Rule 1.7(b) and In Re: Friday do not apply.
Further, while Rule 1.10(a) would prevent other members of the Agency legal staff from appearing on behalf of the Agency before a Panel on which Attorney A was serving, that prohibition likewise would not apply if Attorney A were to recuse himself from serving on the Panel in such matters.