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 99-02
Husband practices probate law in a county in which the probate judge employs Husband's wife as a staff attorney.
Question:
Is Husband prohibited from appearing before the probate judge?
Summary:
A lawyer is not disqualified from appearing before a judge simply because the judge employs the lawyer's spouse as a staff attorney.
Opinion:
The South Carolina Rules of Professional Conduct, S.C. App. Ct. R. 407, do not expressly address whether a lawyer may appear before a judge who employs the lawyer's spouse. Appellate Court Rule 506, Code of Conduct for Staff Attorneys and Law Clerks, however, provides that a "staff attorney or law clerk shall disqualify himself in a matter in which his impartiality might reasonably be questioned, including but not limited to instances where: ... (4) he is related by blood or marriage ... to a lawyer in the proceeding." S.C. App. Ct. R. 506, Canon 2. The inclusion of this standard in the professional rules governing the conduct of law clerks and staff attorneys suggests that the proper action is to disqualify the staff attorney or law clerk, not the lawyer, in order to avoid any appearance of partiality when the lawyer and staff attorney are husband and wife.
If the judge does not believe that the disqualification of the law clerk or staff attorney would be sufficient to avoid an appearance of partiality, the judge may have to consider whether to recuse himself or herself from consideration of a particular matter under the Code of Judicial Conduct, S.C. App. Ct. R. 501. No rule, however, appears to require the disqualification of the lawyer appearing as counsel.
Although the relationship between a lawyer and the judge's legal staff might suggest the possibility of partiality, the rules resolve that concern in an appropriate manner. If the lawyer were automatically disqualified, the lawyer could do little or no probate work in the county, including even uncontested matters, because a county has only one probate judge. Similarly, if the judge were automatically disqualified, court administration would be complicated by the lack of other probate judges in the county. The least disruptive manner in which to remove the essence of the potential taint is the disqualification of the law clerk or staff attorney in those matters in which the spouse is counsel.