Can a former deputy solicitor who prosecuted a defendant for arson later represent that same person in an insurance claim arising from the same fire, and can his new firm continue the matter?

Plain-English summary

A lawyer who had been a deputy solicitor participated personally and substantially in prosecuting an arson case against a defendant. After leaving the Solicitor's Office and joining a firm, the lawyer was not personally involved in the client's criminal case; the Solicitor's Office did not oppose the firm's continued representation and purported to waive any conflict. The same client also had an insurance claim arising out of the same fire. The firm asked whether the former prosecutor could represent the client in the insurance matter, and if not, whether the firm could continue so long as the lawyer had no involvement.

The committee concluded the lawyer himself could not. Although Rule 1.11 allows a former public officer to represent a private client in a matter the lawyer participated in personally and substantially as a public officer if the government agency consents after consultation, the rule's purpose is to prevent a lawyer from exploiting public office for a private client's advantage, which is what representation here would do. In pursuing the civil claim the lawyer would be working from the same core facts and would have gained the trust, confidence, and investigative work of police arson investigators through privileged discussions while prosecuting; using that information and evidence in the civil action would be inconsistent with Rule 1.11. The committee also noted that the solicitor's consent would have to extend to release of confidential information (Rule 1.6), that Rule 3.3 could conflict with the lawyer's duties if he learned incriminating evidence as a prosecutor, that client consent under Rule 1.7(b) would be needed, and that a comment to Rule 1.9 specifically warns a lawyer who prosecuted an accused cannot represent that person in a later civil proceeding against the government on the same transaction. It found the solicitor's simple "no objection" did not cure the dilemma, referenced Rule 1.11(c)(2) and S.C. Code Ann. § 17-1-20, and noted the appropriate consenting agency might be the Attorney General rather than the local solicitor.

On the firm, the committee found no problem with the firm continuing to represent the client in either the criminal or civil matter as long as the former prosecutor was screened from any participation in the matter and apportioned no part of the fee from it.

In practice

The opinion holds that, under the South Carolina rules as they stood at the time, a former deputy solicitor who personally and substantially prosecuted a defendant may not personally take that client's civil case arising from the same facts, because it would exploit his former office under Rule 1.11 and put his access to confidential government information to private advantage; the solicitor's bare "no objection" does not amount to the consent the rule requires, and Rules 1.6, 1.9, 3.3, and 1.7(b) all bear on the problem. The firm may continue the representation only if the former prosecutor is screened from all participation and receives no portion of the fee. South Carolina revised its Rules of Professional Conduct effective 2005; verify the current text of Rule 1.11 (and its screening provisions) before relying on the specific subsections here.

Common questions

Q: Can the former prosecutor represent the person he prosecuted in a related civil claim?

A: The committee concluded no: it would exploit his former public office under Rule 1.11, using investigative trust and confidential information gained as a prosecutor for a private client's advantage.

Q: Does the Solicitor's Office saying it has "no objection" fix the problem?

A: The committee concluded no: a simple "no objection" does not cure the ethical dilemma, the consent would also have to cover release of confidential information (Rule 1.6), and the proper consenting agency might be the Attorney General rather than the local solicitor.

Q: Can the firm keep representing the client if the former prosecutor stays out of it?

A: The committee concluded yes: the firm may continue in either the criminal or civil matter so long as the former prosecutor is screened from any participation and shares no part of the fee.

Background and rules framework

The opinion interpreted South Carolina RPC 1.11 (successive government and private employment; preventing exploitation of public office; screening under 1.11(c)(2)), 1.9 (duties to former clients, including the comment on prosecuting then civilly representing the same person), 1.6 (confidentiality), 3.3 (candor to the tribunal), and 1.7(b) (client consent), corresponding to the like-numbered Model Rules, together with S.C. Code Ann. § 17-1-20. The committee relied on its Opinion 90-15.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.11 / Model Rule 1.11: successive government employment; no exploitation of public office; screening.
• South Carolina RPC 1.9 / Model Rule 1.9: duties to former clients; prosecuting then civilly representing the same person.
• South Carolina RPC 1.6, 3.3, 1.7(b) / Model Rules 1.6, 3.3, 1.7: confidentiality, candor, and client consent.

Statutes:

• S.C. Code Ann. § 17-1-20.

Other opinions cited:

• S.C. Bar Ethics Advisory Op. 90-15 (no representation that exploits prior public office).

See also

• SC Bar Ethics Op. 05-01: Former Prosecutor's Civil Case
• SC Bar Ethics Op. 03-02: Prosecuting a Former Client
• SC Bar Ethics Op. 00-18: Ex-Prosecutor Conflicts

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-02-03/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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 02-03

Lawyer worked as a deputy solicitor for a Solicitor's Office. While with Solicitor's Office Lawyer participated personally and substantially in Arson case in which Client is the defendant. Lawyer left Solicitor's Office and joined Firm. Lawyer is neither personally nor substantially involved with Client's criminal case and Solicitor's Office is not opposed to Firm continuing to represent Client and waives any conflict Firm might have. Client also has a case against an Insurance Company that arises out of the same fire as the Arson arrest. May Lawyer represent Client in the Insurance matter, and if not, may Firm continue to represent Client as long as Lawyer has no involvement in the case? 1

Question
May Lawyer represent Client in the insurance matter, and if not, may Firm continue to represent Client as long as Lawyer has no involvement in the case?

Summary
Lawyer cannot represent a Client in a civil action against a third party when that civil action involves a matter arising out of the same set of facts as or substantially similar facts to a criminal action prosecuted by the Solicitor's Office against the Client and which included substantial and personal participation by Lawyer when Lawyer was a deputy solicitor. However, there appears to be no problem with Firm continuing to represent Client in either the criminal or civil matter as long as Lawyer is screened from any participation in the matter and apportioned no part of the fee therefrom.

Opinion
Rule 1.11 allows a Lawyer to represent a private client in connection with a matter in which the Lawyer participated personally and substantially as a public officer if the appropriate government agency consents after consultation. However, the comment section to Rule 1.11 of the Rules of Professional Conduct states: "This Rule prevents a Lawyer from exploiting public office for the advantage of a private client." Given the facts here, it appears this may be precisely what Lawyer is doing if he undertakes to represent Client. The Solicitor's Office is not opposed to the Firm "representing" Client, but does this constitute consent after consultation as required by Rule 1.11(a) and does the consent extend to the Lawyer representing the Client in the insurance claim?1

In advancing Client's claim against the insurance company, Lawyer will be dealing with the same core set of facts that existed when Lawyer was with the Solicitor and then prosecuting Client. While those facts are unknown, it is difficult to believe that Lawyer as prosecutor, now Lawyer as claimant's attorney, is not ethically compromised in some fashion. Lawyer has, we presume, interviewed police inspectors and studied their investigative work. The trust and confidence of these investigators was gained by Lawyer as they engaged in what they must have believed were free, frank, and privileged discussions with Lawyer. Substantial evidence has been gained. Can Lawyer now use this information and evidence in the civil action? We think not. To do so we would be inconsistent with Rule 1.11, and allow the Lawyer to have exploited the office of Solicitor to the advantage of a private client.

Even if the solicitor's consent mitigates the ethical issues raised here, one must ask, does the solicitor's consent extend to release of confidential information gained during Lawyer prosecution of Client? The Rules of Professional Conduct clearly require the appropriate government agency to consent not only to the representation, but to the disclosure of confidential information. See Rule 1.6, Rules of Professional Conduct.

Rule 3.3 must also be consulted. If Lawyer gained knowledge of incriminating evidence against Client while a deputy solicitor, Failure to disclose that evidence to the Court conflicts with Rule 3.3(2). Conversely, Lawyer desire to honor Rule 3.3 may put him at odds with Client. For that matter, does Lawyer have Client's consent to represent client in this matter, after appropriate consultation. Rule 1.7(b)?

A comment to Rule 1.9 states: "So also a Lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil proceeding against the government concerning the same transaction." This is perilously close to our given factual situation, and our committee does not believe that the solicitor's simple "no objection" to the representation cures the ethical dilemma. Reference is also prayed to Rule 1.11(c)(2), should it apply to the given factual situation.

South Carolina Code Ann. § 17-1-20 should also be considered. While this statute addresses only a sitting prosecutorial officer, it nevertheless beckons us to the conclusion that it would be inappropriate for Lawyer to represent Client in this case.

Lawyer should be cognizant that Rule 1.11 is expressly designed to prohibit a Lawyer from exploiting public office for the advantage of a private client. Lawyer would not be permitted to represent client against insurance company if, in doing so, Lawyer would be exploiting his prior public office. S.C. Bar Ethics Advisory Opinion 90-15. Unfair advantage may inure to a private client's benefit by reason of access to confidential government information obtained only through the Lawyer's previous service as a solicitor.

1 We find it astonishing that the Solicitor would properly consent to this representation, as it would potentially compromise the Solicitor's relationship with police inspectors. In addition, it would be wise to inquire whether the local solicitor's office, as compared to the Attorney General's office, really is the appropriate state agency to give consent. After working closely with, let us say, the state police arson investigator in preparing for the criminal trial, Lawyer now is blessed with a wealth of information for a hostile cross-examination in the civil trial. This would seem to be contrary to the best interests of the Solicitor's Office, as well as the citizenry of South Carolina.