When several public defenders from the same office represent co-defendants with inconsistent defenses, must each get the client's informed consent in writing under Rule 1.7?

Plain-English summary

Attorneys A, B, C, and D are all employed by the Public Defender's Office, and each represents a co-defendant. The clients have inconsistent defenses. The attorneys have been screened in a timely manner as prescribed in Rule 1.10(e)(1) and have the autonomy required by Rule 1.10(e)(2). The committee was asked whether the attorneys must get informed consent confirmed in writing from their clients under Rule 1.7, and whether the answer differs if one or more co-defendants will testify against the others at trial and be cross-examined by another co-defendant's public defender.

The committee concluded that if the requirements of Rule 1.10(e), which are exceptions to Rule 1.10(a), are satisfied, the attorneys need not refer to Rule 1.7. Provided the screening and autonomy requirements are met, the attorneys do not need the written informed consent that Rule 1.7 would otherwise require, and there is no difference under Rule 1.7 if the co-defendants will testify against each other.

The committee added the converse: if the screening and autonomy requirements of Rule 1.10(e) are not met, the public defenders would have to abide by Rule 1.7, and on the facts presented (inconsistent defenses) the conflict would not be consentable under Rule 1.7.

In practice

The opinion holds that, under the South Carolina rules as they stood at the time, the Rule 1.10(e) screening and autonomy exceptions, when satisfied, relieve public defenders in the same office from treating co-defendant representations as a Rule 1.10(a) imputed conflict, so no Rule 1.7 written informed consent is needed, even where a co-defendant testifies against another and is cross-examined by that co-defendant's public defender. The committee made the outcome turn on whether Rule 1.10(e)'s conditions are met: if they are not, Rule 1.7 applies and the conflict on these facts (inconsistent defenses) is not consentable.

Common questions

Q: Must same-office public defenders get written consent to represent co-defendants?

A: Not if the office satisfies the Rule 1.10(e) screening and autonomy exceptions. The committee concluded that when those are met, the attorneys need not refer to Rule 1.7 or obtain its written informed consent.

Q: Does it matter if one co-defendant testifies against another?

A: No, provided the Rule 1.10(e) requirements are met. The committee said there is no difference under Rule 1.7 in that situation when screening and autonomy are satisfied.

Q: What happens if the office does not meet the screening and autonomy requirements?

A: Then Rule 1.7 governs, and the committee concluded that on these facts (inconsistent defenses) the conflict would not be consentable.

Background and rules framework

The opinion interprets South Carolina Rule 1.10 (imputation of conflicts of interest within a firm), including Rule 1.10(a) and the Rule 1.10(e) exception for public defender and similar offices that timely screen the affected lawyers (1.10(e)(1)) and provide them autonomy (1.10(e)(2)), and Rule 1.7 (concurrent conflicts; informed consent confirmed in writing). These correspond to the like-numbered Model Rules, with Rule 1.10(e) reflecting South Carolina's specific treatment of public defender offices. The analysis turns on whether the Rule 1.10(e) conditions are satisfied.

Citations and references

Rules of Professional Conduct:

• MR 1.10 / SC Rule 1.10(a), 1.10(e), 1.10(e)(1), 1.10(e)(2) (imputation; public defender screening and autonomy exception)
• MR 1.7 / SC Rule 1.7 (concurrent conflict; informed consent confirmed in writing; non-consentable conflicts)

See also

• SC Bar Ethics Op. 04-12: Public Defender Caseloads
• SC Bar Ethics Op. 04-10: Imputed Conflict, No Screen
• SC Bar Ethics Op. 08-11: Office-Sharing Opposing Counsel

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-09-02/
• Original PDF: https://www.scbar.org/media/gepldldw/09-02.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.

Ethics Advisory Opinion 09-02

SC Rule of Professional Conduct: 1.7, 1.10

Facts

Attorneys A, B, C, and D are all employed by the Public Defender’s Office. Each attorney represents a client who is a co-defendant. The clients have inconsistent defenses. The attorneys have been screened in a timely manner as prescribed in Rule 1.10(e)(1) and have autonomy required by Rule 1.10(e)(2).

Questions

1. Do the attorneys need to get informed consent confirmed in writing from their clients per Rule 1.7?

2. Is there any difference under Rule 1.7 if one or more of the co-defendants are seeking to testify against the other co-defendants at trial and will be subject to cross examination by the co-defendant’s public defender ?

Opinion

If the requirements of Rule 1.10(e), which are exceptions to Rule 1.10(a), are satisfied, the attorneys need not refer to Rule 1.7.

Provided that the appropriate screening and autonomy requirements are met, the attorneys do not need the consent confirmed in writing required by Rule 1.7. Therefore, there is no difference under Rule 1.7 if the co defendants will testify against each other.

If, however, the screening and autonomy requirements of Rule 1.10(e) are not met, the public defender would have to abide by the dictates of Rule 1.7, and under the facts presented (inconsistent defenses), the conflict would not be consentable under Rule 1.7.