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 96-22
An attorney is appointed to represent a criminal defendant in a post-conviction relief (PCR) matter. The defendant was represented by the county public defender's (PD) office during the time the attorney was employed with the same office. The attorney was employed at the PD's office from the time of the defendant's initial arrest to the disposition of the case on the merits. He currently in private practice. During the time he was with the PD's office, he was not the attorney appointed to represent the defendant.
Question:
Does a conflict exist such that a different attorney should be appointed to represent the criminal defendant in this PCR matter?
Summary:
If there is sufficient separation of duties, case load, and employees between the former PD and the PD office's representation of the defendant that is the subject of the PCR proceeding, then automatic per se disqualification would not apply.
Opinion:
In 1992, this committee issued Advisory Opinion (AO) 92-21 stating that a PD's Office is treated as a law firm for purposes of imputing disqualification under SCACR 407, para. 1.10 (hereafter "Rule".) In the case of co-defendants in the same criminal matter, the Committee viewed a single PD's office could not represent more than one defendant and disqualification would be imputed to other members of the same office. In March, 1993, the Committee in AO 93-01 indicated that when a PD maintains a separate office with separate employees and a separate case load, imputed disqualification under Rule 1.10 would not exist.
In AO 93-01, the question was not one involving a new client but rather a former client of the PD's office being represented in a PCR hearing by another attorney in the office. The Committee felt that as long as there was no shared information among PDs that would be materially adverse to the client, the PD should not be barred by conflict of interest in representing the former client in a PCR hearing. This committee has concluded that a PD's office may be equated to a law firm.
Although this committee does not issue opinions on questions of law, the reasoning of various courts on issues involved in this inquiry may be instructive. Factors to be considered would include:
1) Whether attorneys employed by the same PD's office can be considered the same as private attorneys associated in the same law firm;
2) Whether the protection of confidential information can be effected by the separation of office facilities and personnel; and
3) Whether as a consequence of having access to confidential information, a PD will refrain from effectively representing a defendant.
Graves v. State (Maryland), 619 A. 2d 123, 9 Lawyer's Manual Prof. Conduct 5 (Md. Ct. Spec. App. 1993); State (New Jersey) v. Bell, 447 A. 2d 525 (N. J. Sup. Ct. 1982); People (New York) v. Wilkins, 268 N. E. 2d 756 (N. Y. Ct. App. 1971).
Under Rule 1.11, a former government attorney is disqualified from representing a private party concerning a matter in which he or she as a government employee was personally and substantially involved. The attorney would also be disqualified from participating in a matter about which he or she has confidential information that can be used to the disadvantage of the adverse party. However, in this case, it would appear the adverse party is not the PD's office but rather the state as prosecutor.
Therefore, if there is sufficient separation of duties, case load, and employees between the former PD and the PD office's representation of the defendant that is the subject of the PCR proceeding, then automatic per se disqualification would not apply.