Can a military prosecutor try a defendant for whom the prosecutor once prepared a will and estate-planning documents in an unrelated matter?

Plain-English summary

An active-duty Army JAG attorney serving as a senior prosecutor had, about two years earlier, prepared wills, living wills, and durable powers of attorney for an Army officer and his wife while working in Army Legal Services. In that estate-planning meeting the couple disclosed financial information and details about their children, but the attorney did not know them beforehand and had no contact afterward. The officer now faced potential criminal charges (possession of child pornography and indecent acts on a child) unrelated to anything the attorney learned during the estate-planning work. Because neither the Uniform Code of Military Justice nor the JAG Manual gave guidance, the committee was asked whether the attorney could prosecute his former estate-planning client.

The committee applied Rule 1.9(a), which bars a lawyer who formerly represented a client from later representing another person in the same or a substantially related matter where interests are materially adverse, absent the former client's consent after consultation. It concluded the prior estate-planning representation was wholly unrelated to the criminal charges and that the attorney gained no confidential information during it that bore on the prosecution, so no conflict existed and the attorney could serve as prosecutor. The committee cautioned that if any confidential information learned during the estate-planning representation should become necessary for the prosecution, the attorney should withdraw under Rule 1.9(c).

The committee found the result consistent with its Opinion 00-05 (no conflict where a lawyer who had handled a couple's mortgage closing later represented the wife in divorce, the matters being unrelated and no usable confidences existing), and distinguished Opinion 02-01 (a conflict where a former prosecutor's later civil suit was substantially related to the criminal matter and the lawyer had had access to all the confidential information).

In practice

Under the South Carolina rules as they stood at the time of the opinion, the committee held that a former-client conflict under Rule 1.9 turns on whether the prior and current matters are substantially related and whether the lawyer holds confidential information that could be used against the former client; where, as here, the matters are unrelated and no relevant confidences exist, no conflict bars the later adverse representation, and the lawyer should withdraw under Rule 1.9(c) only if such confidential information later becomes necessary. South Carolina revised its Rules of Professional Conduct effective 2005; verify the current text of Rule 1.9 before relying on the specific subsections cited.

Common questions

Q: Can a lawyer take a matter adverse to a former client?

A: The committee concluded yes unless the new matter is the same as, or substantially related to, the former representation and the former client's interests are materially adverse, in which case Rule 1.9(a) requires the former client's consent after consultation.

Q: Does preparing someone's will disqualify the lawyer from later prosecuting them?

A: The committee concluded no on these facts, because estate-planning work is not substantially related to unrelated criminal charges and the lawyer learned no confidential information bearing on the prosecution.

Q: What if the lawyer does hold relevant confidential information from the prior matter?

A: The committee concluded that if confidential information learned during the prior representation becomes necessary for the prosecution, the lawyer should withdraw under Rule 1.9(c).

Background and rules framework

The opinion interprets South Carolina RPC 1.9 (duties to former clients), corresponding to Model Rule 1.9: subsection (a) on substantially related adverse matters and subsection (c) on use of a former client's confidential information. The committee relied on its Opinions 00-05 and 02-01.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9(a) / Model Rule 1.9(a): representation adverse to a former client in a substantially related matter.
• South Carolina RPC 1.9(c) / Model Rule 1.9(c): using or revealing a former client's confidential information.

Other opinions cited:

• S.C. Bar Ethics Advisory Ops. 00-05 (unrelated prior representation; no conflict) and 02-01 (substantially related matter; conflict).

See also

• ABA Formal Op. 467: Prosecutors' managerial and supervisory obligations
• SC Bar Ethics Op. 02-17: A lawyer employed by a nonlawyer nonprofit corporation

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-03-02/
• Original PDF: https://www.scbar.org/media/s4cntl2j/03-02.pdf

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.

Facts:

Attorney is an active duty Army JAG attorney, currently serving as a senior prosecuting attorney.

Approximately two years ago, Attorney worked in Army Legal Services and prepared wills, living wills, and durable powers of attorney for Army Officer and his wife. In this capacity, Attorney met with Army Officer and his wife, and the couple revealed their financial information, including assets, liabilities, and insurance, as well as the names and ages of all of their children. Attorney did not know the couple before they came in for the estate planning and has had no contact with them since that time.

Army Officer is now facing potential criminal charges of (1) possession of child pornography (discovered recently on his home computer), and (2) committing indecent acts on one of his children (allegedly committed 12 years ago). Attorney learned no confidential information concerning these potential charges during the prior representation.

The Committee is informed that neither the Uniform Code of Military Justice nor the JAG Manual provide any guidance to the inquiring attorney.

Question:

Given Attorney’s past representation of Army Officer, may Attorney act as the prosecutor in the Army’s criminal case against Army Officer?

Summary:

Because Attorney’s former representation of Army Officer does not appear to be substantially related to the present criminal charges against Army Officer and Attorney learned no confidential information relating to the present criminal charges, Attorney may act as the prosecuting attorney in the Army’s criminal case against Army Officer.

Opinion:

Rule 1.9(a) of the South Carolina Rules of Professional Conduct provides that “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.” Rule 1.9, S.C. App. Ct. R. 407 (emphasis added). Given the facts of this inquiry, the former estate planning representation appears to be wholly unrelated to Army Officer’s present criminal charges and Attorney did not gain any confidential information during the prior representation. Therefore, no conflict of interest appears to exist and Attorney may as the prosecuting attorney in the Army’s criminal case against Army Officer.

Although no conflict of interest appears to exist in the present case, Attorney should be mindful that, if any confidential information he learned during the estate planning representation should become necessary for the prosecution of Army Officer, Attorney should withdraw as the prosecuting attorney in the criminal case. Rule 1.9(c), S.C. App. Ct. R. 407.

This opinion is consistent with past opinions of the Committee. See Ethics Advisory Opinion 00-05. In Opinion 00-05, the Committee found that no conflict of interest existed, pursuant to Rule 1.9, where an attorney sought to represent a wife during her divorce. The attorney had previously represented both the husband and wife during their residential mortgage closing and later refinancing of their home. Because the matters were not substantially related and the attorney was not privy to any confidential information that could be used in the divorce, no conflict of interest existed. But see Ethics Advisory Opinion 02-01 (stating that attorney, who was involved as a solicitor in an arson case in which client was a criminal defendant, may not represent client in subsequent civil suit against an insurance company because the civil suit was substantially related to the underlying criminal action and the attorney previously had access to all confidential information in the criminal case).

Therefore, under the facts presented to the Committee, there does not appear to be a conflict of interest and Attorney may act as a prosecutor in the Army’s criminal case against Army Officer.

Index:

Conflict of Interest

-- Former client