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 95-08
Attorney A is employed as municipal attorney. Attorney A is consulted by administrative staff prior to staff's decision on a zoning matter. Staff's decision on the zoning matter is appealed to the Zoning Board of Adjustment, a municipal department.
Questions:
Does any provision of the Rules of Professional Conduct (SCACR 407) prohibit Attorney A, in his capacity as municipal attorney, from advising the Zoning Board of Adjustment during its review of the zoning matter? Does S.C.Code Ann. 1-23-360 (1986) prohibit the communication?
Summary:
No provision of the Rules prohibits Attorney A from rendering advice to the municipality at different stages of the zoning process. Other provisions of law may be applicable to this matter, however, and must be considered in this context.
Opinion:
In serving as counsel to a municipality, an attorney is subject to the provisions of Rule 1.13 (Organization as a Client). Thus, the attorney is permitted to communicate with duly authorized constituents of the municipality and to render advice to them in their capacities as agents of the municipality. In communicating with municipal agents in their official capacities, the attorney must insure that the individual agent is aware that the attorney does not represent that agent in his individual capacity. Rule 1.13(d); Comment 4(a).
Whether the communication would violate any provision of statutory, regulatory or common law is beyond the scope of this Committee's role. If, however, the attorney reasonably believes that communication between municipal counsel and members of the decision-making body may violate any provision of law and that such communication is likely to result in substantial injury to the client, the attorney is required to follow the procedure set forth in Rule 1.13(b). If consultation by members of the municipality's decision-making authority is prohibited by 1-23-360 or any other provision of law, and if such communication would prejudice the municipality by invalidating its decision on a municipal matter or otherwise, the attorney is obligated to take "measures . . . designed to minimize disruption of the organization and the risk of revealing information . . . to persons outside the organization." Rule 1.13(b).