May a part-time county attorney represent criminal defendants in the same county, where the sheriff's office officers investigate those cases?

Plain-English summary

An attorney represents a county as part of his private practice. As county attorney he occasionally interacts with the County Sheriff's Office (CSO) but does not represent it in court; the Solicitor's Office prosecutes criminal cases involving the CSO, the CSO employs its own attorney in the detective division for day-to-day legal advice, and when a member of the CSO is sued, the county's insurer selects defense counsel. Generally the county attorney is not asked to advise the CSO. He also serves as municipal judge for a town in the same county that uses off-duty CSO officers as its police, so he presides over cases those officers investigate and prosecute; he would step down as municipal judge if he began accepting criminal defendants in that county. The question is whether he may represent criminal defendants in General Sessions or Magistrate's Court in the county where he serves as county attorney.

The committee concluded he may not if he provides any legal advice to the CSO concerning criminal matters, but may if he provides none. Rule 1.7 bars a representation directly adverse to another client; if the county attorney gave the CSO any criminal-law advice, representing criminal defendants would run afoul of that prohibition. Under Rule 1.7(b), a lawyer may still proceed despite a concurrent conflict if he reasonably believes he can provide competent and diligent representation to each affected client, the representation is not prohibited by law, it does not involve asserting one client's claim against another client in the same proceeding, and each affected client gives informed consent confirmed in writing. Whether the lawyer can proceed turns on whether he reasonably believes he can give competent and diligent representation to each affected party.

The committee drew on its companion Opinion 92-16, which advised that where a county or city attorney has provided legal services to an employee, official, board, agency, department, or other part of government that is directly involved in litigation, it would never be reasonable to represent a person with adverse interests in that litigation. Applying that to criminal law, the committee said it is similarly difficult to conceive of a circumstance where a lawyer could reasonably advise a litigation party (the CSO) while representing a criminal defendant whose alleged crime may be linked to that advice. It concluded the only circumstance permitting the representation is one in which the attorney gives no legal advice to the CSO, eliminating the concurrent conflict.

In practice

The opinion holds that, under South Carolina Rule 1.7, a county attorney who provides any criminal-law legal advice to the County Sheriff's Office may not represent criminal defendants in that county, because the interests would be directly adverse. The opinion holds that where the county attorney gives the CSO no such advice, no concurrent conflict arises and the representation is permissible. It treats the Rule 1.7(b) cure as practically unavailable here, reasoning (per Opinion 92-16) that a lawyer cannot reasonably believe he can provide competent and diligent representation to both a government client involved in litigation and an adverse party in that litigation.

Common questions

Q: Can a part-time county attorney also defend criminal cases in that county?

A: Only if he gives the sheriff's office no criminal-law advice. The committee concluded that providing any such advice to the CSO would create a Rule 1.7 conflict barring the defense work.

Q: Why would advising the sheriff's office bar defending criminal cases?

A: Because the interests are directly adverse under Rule 1.7. The committee said a lawyer advising the CSO on criminal matters while defending someone whose alleged crime may be linked to that advice would violate the rule.

Q: Can the conflict be cured with client consent under Rule 1.7(b)?

A: In theory, but the committee found it practically unavailable. Relying on Opinion 92-16, it said a lawyer cannot reasonably believe he can competently represent both a government litigation client and an adverse party.

Q: What if the county attorney gives the sheriff's office no legal advice at all?

A: Then the representation is permissible. The committee said the absence of such advice eliminates the concurrent conflict.

Background and rules framework

The opinion interprets South Carolina Rule 1.7 (concurrent conflicts of interest), including the Rule 1.7(b) conditions for proceeding despite a conflict, which corresponds to Model Rule 1.7. The analysis turns on whether the county attorney provides legal advice on criminal matters to the County Sheriff's Office, making the sheriff's office a client whose interests are directly adverse to a criminal defendant. The committee applied its companion Opinion 92-16 on government attorneys representing private clients adverse to government entities.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / SC Rule 1.7, 1.7(b) (concurrent conflicts; conditions for proceeding despite a conflict)

Other opinions cited:

• S.C. Bar Ethics Advisory Opinion 92-16: a county or city attorney who has provided legal services to a government entity in litigation may not represent a person with adverse interests in that litigation

See also

• SC Bar Ethics Op. 09-06: Mayor's Partner in City Court
• SC Bar Ethics Op. 03-11: Disclosing an Officer's Lie

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-11-02/
• Original PDF: https://www.scbar.org/media/4sabp43l/11-02.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS ADVISORY OPINION
11-02

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.

Factual Background:
Attorney represents a County as part of his private practice. As county attorney, Attorney occasionally interacts with members of the County Sheriff’s Office (CSO), although he does not represent the CSO in court. The Solicitor’s Office prosecutes any criminal cases involving the CSO in General Sessions or magistrate's court. In addition, the CSO employs its own attorney in the detective division who provides legal advice and representation on a day-to-day basis. In situations where a cause of action is brought against a member of CSO, the County's insurance underwriter selects an attorney to defend that action on the County's behalf. In general, Attorney is not usually asked to provide legal advice to the CSO in his role as County Attorney.
Attorney also serves as the Municipal Judge for a town in the same county. The Town does not have an independent police force; instead, it employs off-duty CSO officers to provide police protection. As such, Attorney presides over cases investigated and prosecuted by CSO officers, acting in their dual capacity as town police officers. Attorney would step down as municipal judge if he were to begin accepting criminal defendants as clients in that county.

Question Presented:
May Attorney accept cases representing criminal defendants in General Sessions or Magistrate’s Court in the county in which he acts as the County Attorney?

Summary:
An Attorney may not represent criminal defendants in the same county in which he acts as county attorney if he provides any legal advice to the CSO concerning criminal matters. If Attorney does not provide any legal advice to the CSO concerning criminal matters, representation of criminal defendants in that county is permissible.

Opinion:
Rule 1.7 of the South Carolina Rules of Professional Conduct states that an attorney may not undertake representation if “the representation of one client will be directly adverse to another client.” Rule 1.7. In this inquiry, if the Attorney were to give any legal advice concerning criminal law to the County Sherriff’s Office, the Attorney would run afoul of Rule 1.7’s prohibition that clients’ interests cannot be adverse to each other.
However, if, pursuant to Rule 1.7(b), an attorney may still undertake the representation of criminal defendants if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

Thus, the representation may be permissible if the Attorney can satisfy the above elements, even if a concurrent conflict were to exist.
Whether an attorney can undertake representation in the face of a concurrent conflict of interest hinges on whether the attorney reasonably believes that he can provide competent and diligent representation to each affected party.

Previously, in a broader context, this Committee issued companion opinions that addressed the issue of county or city attorneys representing private clients in that county. In Ethics Advisory Committee Opinion 92-16, the Committee opined: “When a county or city attorney has provided legal services directly to an employee, official, board, agency, department, or other part of city or county government and that person or entity is directly involved in litigation, we do not believe it would ever be reasonable for the lawyer to represent a person with adverse interests in that litigation.” Specifically, in the area of criminal law, it is similarly difficult to conceive of any circumstance where an attorney may reasonably provide legal advice to a party involved in litigation, in this case the CSO, while representing a criminal defendant whose alleged crime may be linked to that legal advice.

Therefore, we believe that the only circumstances under which the attorney may represent a criminal defendant would be if the attorney does not give any legal advice to the CSO, thereby eliminating the concurrent conflict.