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 97-12
Former solicitor has been approached by persons who were indicted for criminal offenses during his tenure as solicitor1. In some cases, the solicitor's actual involvement in reviewing a particular case was minimal, such as where an assistant solicitor who was handling the matter was sufficiently experienced that the solicitor largely deferred to the assistant solicitor. However, each indictment handed down during the solicitor's term was approved by the solicitor, sometimes with the use of a signature stamp, but other times in person. Would the former solicitor be required to obtain the informed consent of his former employer before representing a criminal defendant who was indicted during the former solicitor's term in office?
Summary:
Because all indictments handed down during the former solicitor's term were done under his supervision, a conflict under Rule 1.11 arises. This conflict, however, can be waived by the State.
Discussion:
A solicitor is a government official within the meaning of Rule 1.11, which governs the circumstances under which a former government official can accept private employment which is related to work done in his former public capacity. The rule provides that a conflict arises when the former government official participates "personally and substantially" in the public activities for which private representation is subsequently sought. Rule 1.11(a).
Numerous courts have opined as to whether mere supervision of another's work constitutes "personal and substantial" -participation in a matter which is handled by a public agency. The decisions are not uniform, however. Most decisions conclude that substantive supervisory authority over the work involving the particular client is sufficiently "personal and substantial" -to cause a Rule 1.11 situation to arise. United States v. Smith, 995 F.2d 662 (7th Cir. 1993) (disqualification of drug defendant's lawyer on the ground that he had been substantially involved with government investigation and had received confidential information; lawyer had been immediate supervisor of lawyer in charge of conspiracy investigation intertwined with investigation and prosecution of defendant); State v. Romero, 578 N.E.2d 673 (Ind. 1991)(former deputy prosecutor on criminal defendant's original prosecution precluded from representing him on retrial; consultation on significant evidentiary issues while prosecutor constituted personal and substantial involvement); Security Investor Protection Corp. v. Vigman, 587 F.Supp. 1358 (C.D.Cal. 1984)(where SEC regional administrator signed complaint and trial brief, he assumed, as a matter of law, the "personal and substantial" responsibility of ensuring that there existed good ground to support the SEC's case.). But see, Committee on Professional Ethics of the State Bar of Nassau County, Op.No. 95--2 (1993)(lawyer who served as assistant municipal attorney and who only had "minor, general oversight involvement" with tax matters may accept assignment to such matters in subsequent employment with a law firm if municipality consents).
It would appear that, even where the former solicitor's involvement in a particular case was minor because the matter was primarily handled by an assistant solicitor, the prosecution was still handled under his supervision, because each of the assistant solicitors serve at the pleasure of the solicitor and, inferentially, under his supervision and control. S.C.Code Ann. Sec.1-7-405 and 406. That could be construed to qualify as "personal and substantial" involvement sufficient to cause a conflict to arise under Rule 1.11. He is the constitutional officer under whose authority all prosecutions in the circuit are undertaken. Article V, Section 24, South Carolina Constitution.
Rule 1.11 contains a provision that permits a conflict of this nature to be waived by "the appropriate government agency". The rule does not define the term appropriate government agency. In this case it could be argued that the appropriate government agency would be the current serving solicitor or the South Carolina Attorney General. See Ex Parte McLeod, 272 S.C. 373, 252 S.E.2d 126 (1979)(the Attorney General has the constitutional obligation to supervise the activities of circuit solicitors).
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1It is unclear from the facts presented whether the actual criminal offense which is pending at this time is the same criminal offense that was indicted during the former solicitor's term, i.e. the committee recognizes that the question could relate to a defendant who was indicted under the solicitor's term for a prior offense, and who now seeks the former solicitor's representation on a subsequent charge. For purposes of this opinion, the committee assumes that the criminal charge which is now pending is the same for which the person was indicted during the former solicitor's terms in office.