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 97-41
An attorney who is in private practice and works part-time as a special prosecutor with the solicitor's office has been retained by plaintiff on some personal injury and death cases where the tortfeasor has been arrested and/or indicted and the cases are being handled by the solicitor's office.
QUESTIONS:
(1) Does this attorney's part-time service as a special prosecutor create a conflict in cases where the tortfeasor is being prosecuted by the Solicitor's office where the attorney works? Even if the attorney stays removed from those cases?
(2) Would the conflict be resolved if the attorney resigned from the job as special prosecutor?
SUMMARY:
Absent resignation, an attorney who works part-time as a special prosecutor should not represent a party in a civil action where the tortfeasor is being prosecuted by the solicitor's office where the attorney works. If the attorney does resign, the former solicitor may not file suit for the private client against the alleged tortfeasor in the county where the attorney served if the attorney participated personally and substantially in a matter concerning the client and the alleged tortfeasor while a prosecutor unless the solicitor's office consents after consultation. Further, the attorney may be barred from this representation because of information to which the attorney had access.
OPINION:
(1) Does this attorney's part-time service as a special prosecutor create a conflict in cases where the tortfeasor is being prosecuted by the Solicitor's office where the attorney works? Even if the attorney stays removed from those cases?.
It is the opinion of this committee that an attorney who works part-time as a special prosecutor for the Solicitor's office should not represent a party in a civil action where the tortfeasor is being prosecuted by the solicitor's office where the attorney works.
Since the inquirer is currently the part-time special prosecutor for the solicitor's office, the situation is governed by Rule 1.7.
Rule 1.7 provides "[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 . . . ." This committee has answered this question in the past by stating "[i]t would be difficult for the [part-time prosecutor] handling the civil case not to utilize any information which was in the Solicitor's office files. If the [part-time prosecutor] handling the civil case had access to information in the Solicitor's office files, he could not adequately perform his duty to his clients if he did not use it." S.C. Bar Ethics Op. No. 84-19.
Decisions which must be made in a solicitor's office concerning the criminal case could have a material effect on the outcome of the civil suit. To the extent a lawyer in the solicitor's office may influence decisions in the criminal case, there is a conflict because advantage may then be gained in the civil matter. The concern of this committee is similar to that of the South Carolina Supreme Court in the case of In re Jolly, 269 S.C. 668, 239 S.E.2d 490 (1977). The court held that SC Code Ann.§17-1-20 which provides that prosecuting officers shall not act in a civil case as counsel for either party, is essential for the protection of the public interest. The fact that the solicitor did not actually participate in the prosecution does not cure the conflict. Therefore, even if the attorney in the present situation stayed removed from the criminal prosecution, his part-time service with the solicitor's office creates a conflict because of the information which could be accessed in that office.
(2) Would the conflict be resolved if the attorney resigned from the job as special prosecutor?
SCRPC 1.11 concerns successive government and private employment. It provides:
(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) The disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) Written notice is promptly given to the appropriate government agency to ascertain compliance with the provisions of this Rule.
The restriction in this rule goes beyond direct conflicts of interest. S.C. Bar Ethics Op. No. 95-05. Rule 1.11 prohibits an attorney without consent from representing a private client in connection with "a matter" in which the lawyer participated personally and substantially as a public officer or employee. Rule 1.11(d) defines "matter."
A primary concern of this rule is to prevent a lawyer from exploiting public office for the advantage of a private client. The comment to Rule 1.11 points out that "unfair advantage could accrue to the private client by reason of unfair access to confidential government information about the client's adversary obtainable only through the lawyer's government service." Thus, the lawyer must make sure Rule 1.11(b) does not apply. Rule 1.11(b) states:
Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.
Therefore, a former solicitor may represent the victims in a civil suit against the alleged tortfeasor if the attorney has consulted with the solicitor's office and obtained consent. On the other hand, if the former solicitor had access to confidential information which could lead to an unfair advantage, the attorney may be prohibited from the representation.