May a lawyer keep practicing in city court when his firm's senior partner is the mayor who sits on the council that appoints the city court judges?

Plain-English summary

The inquiring lawyer is a member of a law firm whose senior partner was recently elected mayor. The mayor sits ex officio on the city council, which appoints the judges of the city court, and the lawyer often practices in city court. The question was whether the lawyer may continue to practice there or whether his employment in the mayor's firm raises a conflict of interest or appearance of impropriety barring him from any city court.

The committee concluded the Rules of Professional Conduct do not prohibit the lawyer from practicing in city court. Rules 3.5(a) and 1.8(l) prohibit attempts to improperly influence a judge, and Rule 8.4(f) prohibits stating or implying an ability to influence a judge, but none of these bars ordinary advocacy on the facts presented. Likewise, the conflict-of-interest rules (Rules 1.7 through 1.11) contain no prohibition in this circumstance. The committee acknowledged that a lawyer's loyalty to a client may be compromised by some interest of a partner or firm member, but said the described scenario, without more, does not suggest any such compromise or risk of compromise.

The committee noted that judges may be required to recuse themselves either if the mayor's partnership with counsel creates an appearance of impropriety (citing Canon 2 of the Code of Judicial Conduct, 501 SCACR) or if the mayor's personal involvement in selecting the judge creates a due-process issue (citing Caperton v. A.T. Massey Coal Co., where a litigant who funded more than half the cost of a judge's election campaign created a probability of bias "too high to be constitutionally tolerable"). Even so, the lawyer is not prohibited from appearing before these city court judges unless the lawyer knows the judge is violating the Code of Judicial Conduct in hearing the case, because Rule 8.4(g) bars a lawyer from knowingly assisting a judge in conduct that violates applicable rules of judicial conduct.

In practice

The opinion holds that, under the South Carolina rules as they stood at the time, nothing in the Rules of Professional Conduct bars a lawyer from practicing in city court merely because his firm's senior partner is the mayor who sits on the council that appoints the judges. Rules 3.5(a), 1.8(l), and 8.4(f) address improperly influencing or claiming to influence a judge but do not reach ordinary advocacy here, and Rules 1.7 through 1.11 do not prohibit the representation on these facts. The committee located the recusal question with the judge (under Canon 2 of the Code of Judicial Conduct or due-process principles from Caperton) and said the lawyer may appear unless he knows the judge is violating the Code of Judicial Conduct, which Rule 8.4(g) forbids the lawyer from knowingly assisting.

Common questions

Q: Can the lawyer keep appearing in city court when his partner is the mayor?

A: Yes. The committee concluded the Rules of Professional Conduct do not prohibit the lawyer from practicing in city court on these facts.

Q: Do the conflict-of-interest rules bar the representation?

A: No. The committee said Rules 1.7 through 1.11 contain no prohibition in this circumstance, and the scenario without more does not suggest a compromise of the lawyer's loyalty to a client.

Q: Does a judge have to recuse?

A: That is the judge's decision. The committee said a judge may be required to recuse if the mayor-partner relationship creates an appearance of impropriety (Canon 2) or if the mayor's role in selecting the judge creates a due-process issue (Caperton).

Q: When must the lawyer stay out of a judge's courtroom?

A: The committee said the lawyer may not appear if he knows the judge is violating the Code of Judicial Conduct in hearing the case, because Rule 8.4(g) bars knowingly assisting a judge in such a violation.

Background and rules framework

The opinion interprets South Carolina Rule 3.5(a) and Rule 1.8(l) (improper attempts to influence a judge), Rule 8.4(f) (implying an ability to influence a judge), and Rule 8.4(g) (knowingly assisting a judge in violating judicial-conduct rules), along with the conflict-of-interest rules, Rules 1.7 through 1.11. These correspond to the like-numbered Model Rules. The recusal analysis draws on Canon 2 of the Code of Judicial Conduct (501 SCACR) and the due-process holding of Caperton v. A.T. Massey Coal Co.

Citations and references

Rules of Professional Conduct:

• MR 3.5 / SC Rule 3.5(a) (improperly influencing a judge)
• MR 1.8 / SC Rule 1.8(l) (improper attempts to influence a judge)
• MR 8.4 / SC Rule 8.4(f) (implying ability to influence a judge)
• MR 8.4 / SC Rule 8.4(g) (knowingly assisting a judge in violating judicial-conduct rules)
• MR 1.7-1.11 / SC Rules 1.7 through 1.11 (conflicts of interest)

Cases:

• Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), due-process disqualification where a litigant funded a large share of a judge's campaign

Other authority:

• Code of Judicial Conduct, Canon 2, 501 SCACR (appearance of impropriety)

See also

• SC Bar Ethics Op. 06-09: Lawyer as Officer and Prosecutor
• SC Bar Ethics Op. 06-14: Donating to a Judge Memorial

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-09-06/
• Original PDF: https://www.scbar.org/media/ebjerf0a/09-06.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 09-06

SC Rules of Professional Conduct: 3.5(a), 8.4(f), 8.4(g)

Facts

Lawyer is a member of a law firm whose senior partner was recently elected mayor. The mayor sits ex officio on the city council. The city council appoints the judges of the city court. Lawyer often practices in city court.

Question

May Lawyer continue to practice in city court, or does his employment in the mayor’s law firm raise a conflict of interest or appearance of impropriety barring Lawyer from practicing in any city court?

Summary

The Rules of Professional Conduct do not prohibit Lawyer from practicing in city court. However, judges may be required to recuse themselves either if the mayor’s partnership with counsel creates an appearance of impropriety or if the mayor’s personal involvement in the selection of the judge creates a due process issue.

Opinion

The Rules of Professional Conduct do not prohibit Lawyer from practicing in city court. Rules 3.5(a) and 1.8(l) prohibit attempts to improperly influence a judge, and Rule 8.4(f) prohibits stating or implying an ability to influence a judge, but none of these rules prohibits ordinary advocacy under the facts presented. Likewise, the conflict-of-interest rules (1.7 through 1.11) contain no prohibition in this circumstance. Any lawyer’s loyalty to a client may be compromised by some interest of a partner or other member of that lawyer’s firm, but the described scenario, without more, does not suggest any such compromise or risk of compromise.

udges may be required to recuse themselves either if the mayor’s partnership with counsel creates an appearance of impropriety (see Canon 2, Code of Judicial Conduct, 501 SCACR) or if the mayor’s personal involvement in the selection of the judge creates a due process issue (see Caperton v. A.T. Massey Coal Co., 2009 WL 1576573 (S. Ct. June 8, 2009)(where a litigant funded more than half the cost of a judge’s election campaign, the probability of judicial bias toward that party was “too high to be constitutionally tolerable”)). Nevertheless, Lawyer is not prohibited from appearing before these city court judges unless the lawyer knows the judge is violating the Code of Judicial Conduct in hearing the case. See Rule 8.4(g)(a lawyer may not “knowingly assist a judge … in conduct that is a violation of applicable rules of judicial conduct.”)