May a county attorney recruit a taxpayer plaintiff, including through the news media, to bring a declaratory-judgment test case?

Plain-English summary

A county wanted to spend public funds on a picnic. The Attorney General opined the expense was improper and, on reconsideration, suggested a declaratory-judgment action to settle the question. No taxpayer had come forward to challenge the council's planned expenditure, so the county attorney wanted to locate a taxpayer plaintiff to bring the test case, including by using the news media to announce the search. The inquiry asked whether the county attorney could locate such a plaintiff and whether he could use the media to do so.

The committee concluded the county attorney could seek a taxpayer plaintiff if he followed certain guidelines and safeguards, while offering no opinion on statutory concerns. It identified four areas. First, the common-law doctrines of champerty and maintenance, reflected in Rule 1.8(e) and (j), prohibit giving the plaintiff financial assistance or the lawyer acquiring a proprietary interest in the cause; because neither would occur, there was no violation. Second, on barratry (stirring up litigation), the committee observed the situation seemed to fit the definition and that barratry could be committed by a public officer (citing State v. Chitty, 17 SCL (1 Bailey) 379 (1830)), but that at common law barratry does not reach promoting public or private actions whose only object is public justice or private rights, requiring "mean" or "selfish" reasons; it expressed no opinion on the cited statutes. Third, under Rule 4.3 (dealing with an unrepresented person), the committee cautioned that the taxpayer might wrongly see the county attorney as "his" lawyer and assume the county would bear costs, a misunderstanding that the wording of any media statement might avoid. Fourth, on use of the media and Rule 7.3(a) and (c), the committee noted that once a taxpayer was found, direct contact was near certain, raising the possibility of overreaching. The committee cited NAACP v. Button, In re Primus, Zauderer v. Office of Disciplinary Counsel, and ABA Formal Op. 148 (1935) as support for the type of action planned.

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 Treat this page as historical context, not current guidance.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 the county attorney recruit a taxpayer to bring the test case?

A: The committee said yes, subject to safeguards, and offered no opinion on statutory concerns such as the barratry statutes.

Q: Did recruiting a plaintiff violate the rules against funding or taking a stake in litigation?

A: The committee said no. Rule 1.8(e) and (j) bar giving the plaintiff financial assistance or acquiring a proprietary interest, and neither would occur here.

Q: Was this barratry?

A: The committee said that at common law barratry does not reach suits whose only object is public justice or private rights; it requires "mean" or "selfish" reasons, and it expressed no opinion on the cited statutes.

Q: What did the county attorney have to make clear to the taxpayer?

A: Under Rule 4.3 the committee cautioned that the taxpayer should not be left thinking the county attorney was his lawyer or that the county would cover his costs, and that media wording and any direct contact must avoid overreaching under Rule 7.3.

Background and rules framework

The opinion applied Rule 1.8(e) and (j) (financial assistance to a client and proprietary interest in litigation), Rule 4.3 (dealing with an unrepresented person), and Rule 7.3(a) and (c) (direct contact with prospective clients), corresponding to Model Rules 1.8, 4.3, and 7.3, alongside the common-law doctrines of champerty, maintenance, and barratry.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.8(e), (j) / Model Rule 1.8: no financial assistance to a client and no proprietary interest in the cause.
• South Carolina RPC 4.3 / Model Rule 4.3: dealing with an unrepresented person.
• South Carolina RPC 7.3(a), (c) / Model Rule 7.3: direct contact with prospective clients.

Cases:

• State v. Chitty, 17 S.C.L. (1 Bailey) 379 (S.C. 1830), on barratry by a public officer.
• NAACP v. Button, 371 U.S. 415 (1963); In re Primus, 436 U.S. 412 (1978); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985).

Other opinions cited:

• ABA Formal Opinion 148 (1935).

See also

• SC Bar Ethics Op. 90-20: A City Councilman's Firm and Conflicts
• SC Bar Ethics Op. 90-26: Government Board Member Representing a Juvenile

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-24/

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 90-24

A South Carolina county proposed to sponsor a picnic wherein food and beverages and the rental of a social site would be funded with public funds. The county attorney for such county requested of the South Carolina Attorney General an opinion as to whether public funds may be expended. The South Carolina Attorney General opined that such an expense was improper.

The county attorney was convinced on the basis of his staff's extensive research that the Attorney General was in error. The Attorney General reconsidered the matter and found that since his opinion was not clear error (the clear error standard being the criterion or standard of review used by the Attorney General to determine if his opinion would be overruled or superseded). In that same opinion, the Attorney General suggested a declaratory judgment action.

In order to determine the law, the county council set the event and indicated its intent to expend public funds. The requisite taxpayer plaintiff, however, has not come forward to enjoin or otherwise challenge the council's action. The county attorney, thus, wishes to locate a taxpayer plaintiff who would bring such a declaratory judgment and, thereby, settle the matter.

Questions:

1. May the county attorney locate a taxpayer plaintiff?
2. May he use the news media to make it known that he is trying to locate the taxpayer plaintiff to bring the declaratory judgment or other action?

Summary:
The county attorney may seek a taxpayer plaintiff to bring a declaratory judgment action if he follows certain guidelines and safeguards, thus avoiding ethical problems. No opinion can be offered as to statutory concerns. Rule of Professional Conduct 1.8(e) and (j) is not violated by the attempt to find or the finding of a plaintiff if that plaintiff is not given financial assistance or gives interest in the action to the county attorney. Rule 4.3 would not be violated if the attorney make the necessary information and disclosures to the plaintiff. State and federal case law and ABA Opinion agree on the type of action.

Opinion:
The two questions (locating a plaintiff) touches on a number of ethical and legal areas:

The first area deals with the Common Law areas of Champerty and Maintenance as they are prohibited in Rule 1.8(e) and (j). In these sections the prohibited conduct requires that the plaintiff be given "financial assistance" or the attorney "acquire a proprietary interest in the cause." As neither of these events are to occur, there is no violation.

The second area is the problem of "stirring up litigation" (barratry). This situation seems to fit squarely within the definition of barratry - "...Bring suits that they would otherwise forsake, thus adding to the public cost of administration of justice, imposing unjust burdens on defendants and enriching lawyers" and risking that the lawyer will have an "interest in settlement." It does appear that the offense of barratry may arise from inciting public prosecutions, and may be committed by one holding public office. (State v. Chitty, 17 SCL (1 Bailey) 379, 1830.) It is clear, however, that barratry does not consist (at common law) in promoting either private or public actions when the only object of such is public justice or private rights (to be prohibited it must be for "mean" or "selfish" reasons. State v. Chitty.) (No opinion is expressed as to the statues -- § 16-17-10, et al, or § 40-5-350, et al, South Carolina Code, 1976, as amended.) The third area of concern is Rule 4.3 "Dealing with Unrepresented Person." In this situation, it would be easy for the unrepresented to see "his" county attorney as "his attorney;" and that the county would be responsible for cost, etc. This might be avoided by the type of statement made in the "media." The fourth area is the use of the media and Rule 7.3(a) and (c). After a taxpayer is found; direct contact is a near certainty and thus the possibility of "overreaching" and misunderstanding.

There is much support for the type of action the county attorney plans:

N.A.A.C.P. v. Button, 371 U.S. 415 (1963); In Re Primus, 436 U.S. 412 (1978); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); and Formal ABA Opinion No. 148 (1935).