Can a former assistant solicitor defend criminal cases in the county where he served, and does it matter that his spouse is still a solicitor there?

Plain-English summary

Two spouses, Attorney A and Attorney B, were both assistant solicitors in County X. Attorney A left to join a private firm while Attorney B remained an assistant solicitor. The inquiry asked whether a former assistant solicitor may defend criminal cases in the county where he served, and whether an attorney whose spouse is an assistant solicitor may defend criminal cases in the same jurisdiction.

On the first question, the committee concluded that the former assistant solicitor could defend in the county where he served, except that under Rule 1.11(a) he could not represent a private client in a matter in which he participated personally and substantially as a public employee unless the solicitor's office consented after consultation. For such a matter, his firm could proceed only if he was screened from any participation, apportioned no part of the fee, and prompt written notice was given to the agency. The committee also noted Rule 1.11(b): if he possessed confidential government information about a person acquired as a public employee, he could not represent a client whose interests were adverse to that person where the information could be used to that person's material disadvantage, again with screening required for his firm. The rule's purpose, per its comment, is to prevent exploitation of public office for a private client's advantage. On the second question, the committee said the situation was harder and required a judgment call about whether independent, aggressive representation and client confidentiality could be maintained by married lawyers on adverse sides. Rule 1.8(i) provides that a lawyer related as a spouse to another lawyer shall not personally represent a client directly adverse to a person the lawyer knows is represented by the other spouse except with the client's consent after consultation about the relationship; this duty applied to both spouses, and the assistant-solicitor spouse should consult the solicitor and obtain permission for her involvement in any case where her spouse appeared. Citing ABA Formal Opinion 340 (1975), the committee cautioned that even with consents, the spouses had to remain sensitive to confidentiality and avoid compromising representation, declining employment where a marital partner's interest reasonably might affect undivided loyalty; disqualification was not mandatory but should be undertaken with extreme caution after full consultation. The committee noted Rule 1.8(i)'s disqualification is personal and not imputed to the spouses' firms.

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a former assistant solicitor defend cases in the county where he served?

A: The committee said yes, except in a matter he participated in personally and substantially as a public employee, which requires the solicitor's office's consent after consultation and, for his firm, screening and written notice under Rule 1.11.

Q: What if he has confidential government information about someone?

A: Under Rule 1.11(b), the committee said he could not represent a client adverse to that person where the information could be used to the person's material disadvantage, and his firm would need to screen him.

Q: Does his spouse still being a solicitor matter?

A: Yes. Under Rule 1.8(i), the committee said both spouses must disclose the relationship and obtain client consent before personally opposing each other, and the solicitor spouse should get the solicitor's permission for her involvement.

Q: Is the spousal conflict imputed to the firms?

A: The committee said no. Rule 1.8(i)'s disqualification is personal and is not imputed to the firms with which the spouses are associated.

Background and rules framework

The opinion applied Rule 1.11 (successive government and private employment, including screening under 1.11(a) and confidential government information under 1.11(b)) and Rule 1.8(i) (the South Carolina version inserting "personally") on family relationships between lawyers, with a reference to Rule 1.7(b), corresponding to Model Rules 1.11, 1.8, and 1.7.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.11(a), (b) / Model Rule 1.11: a former government lawyer may not represent a private client in a matter he handled personally and substantially absent agency consent; screening and notice for the firm.
• South Carolina RPC 1.8(i) / Model Rule 1.8: a lawyer shall not personally represent a client adverse to a person represented by the lawyer's spouse absent the client's consent; the disqualification is personal, not imputed.
• South Carolina RPC 1.7(b) / Model Rule 1.7: personal-interest conflicts.

Other opinions cited:

• ABA Formal Opinion 340 (Sept. 23, 1975): married lawyers representing opposing parties.

See also

• SC Bar Ethics Op. 90-26: Government Board Member Representing a Juvenile
• SC Bar Ethics Op. 90-04: Solicitor Before Spouse's Judge

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-15/

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 90-15

Attorney A is the spouse of Attorney B. Attorney A and Attorney B are both employed as assistant solicitors in County X. Attorney A leaves the Solicitor's Office and becomes a partner in a private firm, while Attorney B remains employed as an assistant solicitor for County X. May Attorney A defend criminal cases in the Court of General Sessions for County X?

Questions:

1. May an attorney who was formerly an assistant solicitor defend criminal cases in the county where he served?
2. May an attorney whose spouse is an assistant solicitor defend criminal cases in the same jurisdiction?

Summary:

1. The former assistant solicitor cannot defend a private client in the county where he served if he participated personally and substantially in a matter concerning the private client while an assistant solicitor, unless the solicitor's office for which he formerly worked consents after consultation. Otherwise, the former assistant solicitor would not be barred from defense work due to his former employment.
2. The former assistant solicitor must inform the potential client of his spouse's position and, after consultation, obtain permission before undertaking any representation in which the spouse is personally involved.

Opinion:

1. A former assistant solicitor cannot defend a person in the county where he served if he personally and substantially participated in a matter involving the client when he was a public employee. Rule 1.11(a) of the Rules of Professional Conduct outlines when a former assistant solicitor can defend such a client, to wit:

"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." Therefore, before a former assistant solicitor may defend a person in a matter in which he, as a public employee, participated personally and substantially, he must consult with and obtain the consent of the solicitor's office. In addition, no attorney in his firm may "knowingly undertake or continue representation in such a matter" unless the following requirements set forth in Rule 1.11(a) are met:

(1) [t]he disqualified lawyer is screened from any participating in the matter and is apportioned no part of the fee therefrom; and, (2) [w]ritten notice is promptly given to the appropriate governmental agency to enable it to ascertain compliance . . . .

If the former assistant solicitor possesses information that he knows is confidential government information about a person acquired when he was a public employee, he may not represent a potential client if the client's interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. See Rule 1.11(b). Moreover, the firm with which the former assistant solicitor is associated may only undertake or continue representation in the matter if the attorney is disqualified, screened from any participation in the matter, and is apportioned no part of the fee therefrom. See Rule 1.11(b). For further discourse on the terms "matter" and "confidential government information," please see Rule 1.11(d) and (e).

Rule 1.11 is expressly designed to prohibit a lawyer from exploiting public office for the advantage of a private client, as indicated in the comment to Rule 1.11. Unfair advantage(s) may inure to a private client's benefit by reason of access to confidential government information about the client's adversary obtainable only through the former assistant solicitor's government service. See Comment to Rule 1.11.

A former assistant solicitor may defend a person in the county where he served if he did not personally and substantially participate in a matter involving the potential client while he was a public employee.

2. The question of Attorney A's involvement in criminal defense matters while his spouse is still working as an assistant solicitor is more difficult. In the final analysis it will require a judgment call by both attorneys as to whether independent, aggressive representation and client confidentiality can be maintained with partners in a marital relation representing adverse parties.

Rule 1.8(i) provides:
"(i) A lawyer related to another lawyer as . . . spouse shall not personally represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship." This duty would apply to both spouses. The assistant solicitor should consult with the solicitor with respect to any case in which her spouse is involved and have the permission of the solicitor for her personal involvement in the matter. Even with the permission of their respective clients the attorney spouses would have to remain sensitive to their ongoing responsibilities to maintain client confidences and insure that the representation of the client is not compromised by consideration for the spouses' interest.

As stated in the ABA Formal Ethics Opinion No. 340 (September 23, 1975):
Even though the representation by husband and wife of opposing parties is not a violation of any disciplinary rule, the possibility of a violation of DR5-101 (now Rule 1.7(b)), in particular, is real and must be carefully considered in each instance. If the interest of one of the marriage partners as attorney for an opposing party creates a financial or a personal interest that reasonably might affect the ability of a lawyer to represent fully his or her client with undivided loyalty and free exercise of professional judgment, the employment must be declined.

While disqualification from cases where a spouse would represent an adverse interest is not mandatory, it should only be undertaken by spouses with extreme caution after full consultation with their respective clients.

(Comment from Rule 1.8: "Family Relationships Between Lawyers": Paragraph (i) applies to related lawyers who are in different firms. Related lawyers in the same firm are governed by Rules 1.7, 1.9, and 1.10. The disqualification stated in paragraph (i) is personal and is not imputed to members of firms with whom the lawyers are associated. The South Carolina version slightly modified the model version by inserting "personally".)