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 99-10
Facts
John Doe is an attorney practicing in a firm which has as one of its members an Assistant Solicitor. A person is killed by the wrongful act of another. The Solicitor's office is prosecuting the individual who killed the person. The family of the deceased has asked John Doe to take the wrongful death case against the alleged perpetrator of the crime.
Question
Is John Doe disqualified from handling the wrongful death case?
Summary
John Doe is disqualified under the Rules of Professional Conduct from handling the wrongful death case. In Opinion #97-41 the Committee concluded that a part-time special prosecutor could not handle a civil matter when the Solicitor's office was handling a criminal case based on the facts involved in the civil case. Based on the authority of that opinion, the Assistant Solicitor is personally disqualified from handling the wrongful death case. The disqualification of the Assistant Solicitor is imputed to John Doe under S.C. Rule 1.10(a). This disqualification is not waivable because "a disinterested lawyer would conclude that the client should not agree to the representation." Rule 1.7, comment.
Opinion
In Ethics Adv. Op. #97-41, this Committee advised that a part-time special prosecutor with the Solicitor's office was prohibited under S.C. Rule 1.7(b) from handling a wrongful death case that was being prosecuted by the Solicitor's office where the attorney works. The Committee reasoned that the attorney might have access to confidential information in the files of the Solicitor's office and might be in a position to influence decisions by the Solicitor's office that could have an impact on the civil case. The Committee also referred to In re Jolly, 269 S.C. 668, 239 S.E.2d 490 (1977), where the Supreme Court held that a Solicitor violated S.C. Code Ann. §17-1-20 (Prosecuting officer shall not accept fees or rewards, nor act in a civil case as counsel for either party) when the Solicitor represented a private client in a matter that was being prosecuted by his office, but not by him personally.
The fact situation in this opinion differs from the one in Opinion 97-41 because it involves a lawyer in the Assistant Solicitor's firm rather than the Assistant Solicitor personally. Rule 1.10(a), dealing with imputed disqualification, provides as follows:
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.2.
Rule 1.10(c) provides, however, for waiver of the imputation of disqualification under §1.10(a):
(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.
Under Rule 1.7 a conflict of interest is subject to consent by the affected clients if the "lawyer reasonably believes the representation will not be adversely affected." The comment to Rule 1.7 provides a test for when client consent may be obtained: "[W]hen a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent." Although the risk of violation of either the duty of confidentiality or loyalty is reduced if the Assistant Solicitor is not personally involved in either the criminal or the civil case, the risk is still present. Accordingly, the Committee is of the opinion that a disinterested lawyer would conclude that John Doe could not undertake this representation because of his partner's employment by the Solicitor's Office.
1 Since the Assistant Solicitor is currently employed in the Solicitor's office rather than a former government employee, Rule 1.11 does not apply to this situation. See S.C. Ethics Adv. Op. 97-41.