Can a former prosecutor work on a civil case against an institution they investigated as a public official, and can the new firm still take the case?

Plain-English summary

While a deputy solicitor, the lawyer prosecuted a child molester for abuse at a residential boys' home, visited the home, became familiar with its residence halls, interviewed the director (a witness), and had documents in the office file about the defendant's hiring. The defendant fled and was convicted in absentia. The lawyer later joined a plaintiff's firm, which was referred an out-of-state civil case involving a different boy and a different perpetrator but abuse at the same boys' home, which might be a defendant.

The committee concluded that, absent appropriate consent, the lawyer may not work on the civil case. Under Rule 1.11(a), a lawyer may not represent a private client in a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation; the rule prevents using public office for a private client's advantage.

The opinion finds the lawyer's prior involvement personal and substantial: visiting the home, the residence halls, and interviewing the director, with the office holding hiring documents on the earlier criminal defendant. It stresses that although the boys' home was not a defendant in the criminal action, "Rule 1.11 is not party specific," and the knowledge the lawyer gained came from the prosecutor's position. The authority granted as a public official may not be used for a private client's benefit.

The committee then applies Rule 1.11(a)'s screening provision: the firm may still handle the matter if the lawyer is screened from participation, receives no part of the fee, and proper notice is given to the solicitor's office, citing Ethics Advisory Opinion 02-03.

In practice

Under this opinion, a former government lawyer who was personally and substantially involved in a matter could not switch to the private side of a related matter without the agency's consent after consultation, and the bar applies even though the institution now targeted was not a named party in the earlier criminal case, because Rule 1.11 is not party-specific. The committee held the firm is not disqualified if it screens the lawyer, ensures the lawyer takes no part of the fee, and notifies the solicitor's office.

Common questions

Q: I prosecuted a case involving an institution. Can I now sue that institution civilly for a different victim?

A: Not without consent. The committee found the prior personal and substantial involvement triggers Rule 1.11(a), barring the lawyer absent the appropriate agency's consent after consultation.

Q: Does it matter that the institution was never a defendant in my criminal case?

A: No. The opinion states Rule 1.11 is not party-specific; what controls is that the lawyer's knowledge came from the prosecutor's position.

Q: Can my new firm still take the case even though I am conflicted?

A: Yes, if the lawyer is screened from participation, receives no part of the fee, and the solicitor's office is given proper notice, per Rule 1.11(a) and Opinion 02-03.

Background and rules framework

The opinion applies South Carolina's version of Model Rule 1.11(a) (successive government and private employment), which bars private representation in a matter where the lawyer participated personally and substantially as a public officer absent the agency's consent, and provides for firm screening with notice. It relies on SC Ethics Advisory Opinion 02-03 for the screening mechanics.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / SC Rule 1.11(a) (successive government and private employment)

Other opinions cited:

• SC Ethics Advisory Opinion 02-03 (screening of a personally disqualified former government lawyer)

See also

• ABA Formal Op. 97-409: Successive government and private employment
• ABA Formal Op. 509: Confidential government information disqualification
• MS Bar Ethics Op. 55: Prosecutor's later private case

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-05-01/

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 05-01

RULE 1.11(a)

Facts
Lawyer is a former deputy solicitor who prosecuted a child molester for sexual abuse of boys in a residential boys’ home. In preparation for the prosecution, Lawyer had gone to the boys’ home, became familiar with the residence halls, interviewed the director who was a witness and had documents in the solicitor’s office file regarding the hiring of the criminal defendant. The defendant fled before trial and was convicted on all counts in absentia. Lawyer later left the solicitor’s office and went to work for a plaintiff’s firm. This firm has expertise in civil child abuse cases and was referred a case from out of state involving a different boy and a different perpetrator for sexual conduct at the same boys’ home.

Question
May Lawyer work on this potential case, as the boys’ home may be a defendant?

Summary
Absent appropriate consent, Lawyer may not work on the civil case. As a deputy solicitor, Lawyer interviewed witnesses, had contact with the same boys’ home and prosecuted the earlier sexual abuse case. Lawyer’s personal and substantial involvement prohibits Lawyer’s participation, unless the appropriate government agency consents after consultation, but the firm may still handle the matter if Lawyer is properly screened.

Opinion
South Carolina Rule of Professional Conduct 1.11(a) (Successive Government and Private Employment) provides that 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. This rule prevents lawyers from using the public office for the advantage of a private client.

The boys’ home where the alleged abuse took place is a possible defendant in the civil matter. While employed as a deputy solicitor, Lawyer visited the home, the residence halls and interviewed the director. The solicitor’s office had documents concerning hiring of the prior criminal defendant. Although the boys’ home was not a defendant in the criminal action, Rule 1.11 is not party specific. Knowledge gained in the prior criminal action was based on Lawyer’s position as a prosecutor. The authority granted Lawyer as a public official may not be used for the benefit of a private client.

Rule 1.11(a) allows the firm to still handle the matter if Lawyer is screened from participation, receives no part of the fee and proper notice is given to the solicitor’s office. See Ethics Advisory Opinion 02-03.