Does a defense lawyer's personal relationship with a county sheriff disqualify her from representing defendants charged by that sheriff's office?

Plain-English summary

The inquiring lawyer practices in County Y and has a personal relationship with the Sheriff of County X. She contemplates representing clients charged with crimes in County X. She proposed always asking the Sheriff whether he was involved in any case in which she was contacted, declining representation where the Sheriff had involvement, and, where he had no involvement, always disclosing the relationship to the prospective client and obtaining the client's written confirmation of informed consent. She asked whether her relationship with the Sheriff disqualifies her from representing any client charged by the County X Sheriff's Office.

The committee concluded the lawyer may represent such clients, provided the Sheriff is not expected to testify in those clients' cases, the lawyer discloses her personal relationship with the Sheriff to those clients, and she obtains written confirmation of informed consent. It framed the analysis around the lawyer's duties of loyalty, preservation of client confidences, and independent professional judgment, and identified the risk that her personal relationship could compromise her judgment and loyalty, particularly if she would be expected to cross-examine the Sheriff.

The committee applied Rule 1.7, and specifically Rule 1.7(a)(2), which addresses a conflict between a current client and the lawyer's own personal interest. Here, the lawyer's personal interest, her relationship with the Sheriff, could conflict with the interests of clients in whose cases the Sheriff had been involved. The committee directed the lawyer to consider whether there is a significant risk that the representation would be materially limited by the relationship, and concluded that to avoid a conflict she should refrain from representing clients in cases where the Sheriff is expected to testify. For cases where the Sheriff is not expected to testify, the committee explained that Rule 1.7(b) permits the representation if, among other things, the lawyer reasonably believes she can provide competent and diligent representation; that belief is not reasonable where she would have to cross-examine the Sheriff personally, but may be reasonable in other cases. In those cases the clients must be advised of the relationship and the lawyer must obtain signed, written confirmation of informed consent under Rule 1.7(b)(4). The committee tied the disclosure to Rule 1.0(f), which requires reasonably adequate information and explanation about the material risks of and reasonably available alternatives to the course of conduct, and noted Comment 18 to Rule 1.7 suggests the better practice is to include the risks, advantages, and alternatives within the writing.

In practice

Under this opinion, a defense lawyer's personal relationship with a county sheriff does not categorically disqualify her from representing defendants charged by that sheriff's office. The committee held she must decline cases in which the sheriff is expected to testify (because she could be required to cross-examine him, making a belief in competent, diligent representation unreasonable under Rule 1.7(b)(1)), and that for cases where the sheriff will not testify she may proceed only after disclosing the relationship and obtaining the client's informed consent confirmed in writing under Rule 1.7(b)(4) and Rule 1.0(f). The committee pointed to Comment 18 to Rule 1.7 for the suggestion that the writing include the risks, advantages, and alternatives discussed.

Common questions

Q: Does a personal relationship with a sheriff bar a lawyer from defending people that sheriff's office charges?

A: Not across the board. The committee concluded the lawyer may take such cases where the sheriff is not expected to testify, with disclosure and the client's written informed consent; she must decline cases where the sheriff is expected to testify.

Q: Why does it matter whether the sheriff will testify?

A: The committee reasoned that if the lawyer would have to cross-examine the sheriff personally, her belief that she can provide competent and diligent representation is not reasonable, so Rule 1.7(b) cannot be satisfied.

Q: What does the lawyer have to do before taking a permitted case?

A: Per Rule 1.7(b)(4) and Rule 1.0(f), she must advise the client of her personal relationship with the sheriff and obtain signed, written confirmation of informed consent, giving the client reasonably adequate information about the material risks and available alternatives.

Background and rules framework

The opinion applies South Carolina Rule 1.7 (concurrent conflicts of interest), particularly Rule 1.7(a)(2) (material-limitation conflict arising from the lawyer's personal interest) and the Rule 1.7(b) cure requirements, together with Rule 1.0(f) (informed consent), which correspond to the like-numbered Model Rules. The committee cited Comment 18 to Rule 1.7 on documenting the risks, advantages, and alternatives in the consent writing.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / SC Rule 1.7, 1.7(a), 1.7(a)(2), 1.7(b), 1.7(b)(4) (concurrent conflicts; personal-interest material limitation; informed consent confirmed in writing)
• MR 1.0 / SC Rule 1.0(f) (informed consent; reasonably adequate information about material risks and alternatives)
• SC Rule 1.7, Comment 18 (better practice to include risks, advantages, and alternatives in the writing)

See also

• SC Bar Ethics Op. 07-01: Lawyer as Broker and Agent
• SC Bar Ethics Op. 06-09: Lawyer as Officer and Prosecutor
• SC Bar Ethics Op. 06-10: GAL Blocks Discovery of Assets

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-07-03/

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 07-03

SC Rules of Professional Conduct: 1.0(f), 1.7, 1.7(a), 1.7(a)(2), 1.7(b), 1.7(b)(4)

Facts
Lawyer is in private practice in County Y. Lawyer has a personal relationship with the Sheriff of County X. Lawyer contemplates future representation of clients charged with crimes in County X. Lawyer would always question Sheriff as to his involvement in any case in which Lawyer was contacted and decline representation of anyone in whose case Sheriff had involvement. If Sheriff had no involvement, Lawyer would always disclose to future clients that she is involved in a personal relationship with the Sheriff of County X and would always obtain a written confirmation of informed consent signed by the client.

Question
Does Lawyer's relationship with Sheriff constitute a conflict of interest such that Lawyer must decline to represent any client charged by the Sheriff’s Office in County X?

Summary
Lawyer may represent clients charged by Sheriff’s Office in County X provided that Sheriff is not expected to testify in those clients’ cases, Lawyer discloses her personal relationship with the Sheriff to those clients, and Lawyer obtains a written confirmation of informed consent from those clients, confirmed in writing.

Opinion
Loyalty to clients and preservation of clients’ confidences and secrets are paramount to Lawyer’s representation of clients. Lawyer also must be able to exercise independent professional judgment. Because Lawyer and Sheriff are involved in a personal relationship, there may be a risk that client confidences will be revealed and that Lawyer’s professional judgment and loyalty could be compromised by Lawyer’s “personal relationship,” if lawyer will be expected to cross-examine sheriff.

Rule 1.7 addresses conflicts of interest concerning current clients, and, specifically, Rule 1.7(a)(2) addresses conflicts between a lawyer and a current client, former clients, a third person or the personal interest of thelawyer. Here, the personal interest of Lawyer, that is, her relationship with Sheriff, could conflict with the interest of clients in whose cases Sheriff had been involved. Lawyer should consider whether there is a significant risk that the representation of the client will be “materially limited” by Lawyer’s personal relationship. To avoid a conflict, Lawyer should refrain from representing those clients in whose cases Sheriff is expected to testify.

Lawyer may also represent clients on whose cases Sheriff is not expected to testify directly involved. Rule 1.7(b) allows a lawyer, despite a potential 1.7(a) conflict, to represent a client if, among other things, “the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.” Such a belief is not reasonable where lawyer will be called upon to cross examine Sheriff personally. Such a belief, may be reasonable, in other cases, however, those clients should be advised of Lawyer’s personal relationship with the Sheriff, and Lawyer should obtain signed, written confirmation of informed consent from those clients, as indicated in Rule 1.7(b)(4). Pursuant to Rule 1.0(f), the disclosure to and consultation with the client must provide “reasonably adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Comment 18 to Rule 1.7 suggests “[t]he better practice is to include within any writing the risks, advantages and alternatives discussed as a matter of full disclosure.”