Does a public defender's office have to stop appearing before a circuit judge because the judge's son works in that office?

Plain-English summary

The son of a circuit court judge was employed by the public defender's office. The question was whether that employment created a conflict barring the entire office from appearing before the judge.

The committee said Rule 1.8(i) governs conflicts arising from a familial relationship among participants in a matter, providing that a lawyer related to another lawyer as parent, child, sibling, or spouse shall not personally represent a client in a representation directly adverse to a person the lawyer knows is represented by the related lawyer, except with the client's consent after consultation. Nothing in the rule's text or comments indicated that either the son or other members of the office could not appear before the judge on these facts. The committee added that Rule 1.10, governing imputed disqualification, does not apply to conflicts arising under Rule 1.8(i), so even if the son were disqualified under Rule 1.8(i), that disqualification would not be imputed to the rest of the office. It then referenced Canon 3(C) of the Code of Judicial Conduct, which requires a judge to disqualify himself where his impartiality might reasonably be questioned, including where a person within the third degree of relationship is acting as a lawyer in the proceeding; the judge therefore could not participate in matters in which his son acted as a lawyer, but neither Rule 1.8(i) nor Canon 3(C) mandated recusal from all cases involving the office. The committee noted that potential for abuse could be removed by the solicitor's awareness and ability to move for recusal where appropriate, and that Rule 8.4(f) on misconduct should also be reviewed.

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 Treat this page as historical context, not current guidance.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: Must an entire public defender's office stop appearing before a judge whose child works there?

A: The committee said no; the Rules did not prohibit members of the office from appearing before the judge on these facts.

Q: Is a lawyer's family-relationship conflict imputed to the whole office?

A: The committee said no; Rule 1.10 does not apply to conflicts arising under Rule 1.8(i), so a Rule 1.8(i) disqualification of the son would not be imputed to the office.

Q: Does the judge have to recuse from anything?

A: The committee said yes; under Canon 3(C), the judge must recuse from any matter in which his son acts as a lawyer, but not from all cases involving the office.

Background and rules framework

The opinion applies Rule 1.8(i) (related-lawyer conflicts) and Rule 1.10 (imputed disqualification), references Rule 8.4(f), and discusses Canon 3(C) of the Code of Judicial Conduct, each rule corresponding to the like-numbered Model Rule. The committee separated the lawyers' conduct rules from the judge's recusal duty, holding the former does not bar the office while the latter governs the judge case by case.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.8(i) / Model Rule 1.8: a lawyer shall not personally represent a client directly adverse to a person represented by a related lawyer, absent consent.
• South Carolina RPC 1.10 / Model Rule 1.10: imputed disqualification, which the committee read as not reaching Rule 1.8(i) conflicts.
• South Carolina RPC 8.4(f) / Model Rule 8.4: misconduct, noted for review.

Other authorities:

• Canon 3(C), Code of Judicial Conduct: a judge must disqualify himself where his impartiality might reasonably be questioned, including where a relative acts as a lawyer in the proceeding.

See also

• SC Bar Ethics Op. 91-19: Public Defender Outside County
• SC Bar Ethics Op. 09-02: Public Defenders, Co-Defendants
• SC Bar Ethics Op. 90-46: Gifts to Judges

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-45/

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 90-45

The son of a circuit court judge is employed by the Public Defender's Office.

Question:
Does the employment of a circuit court judge's son within a Public Defender's Office create a conflict of interest barring the entire Public Defender's Office from appearing before the circuit court judge?

Summary:
The Rules of Professional Conduct would not prohibit members of the Public Defender's Office from appearing before the circuit court judge.

Opinion:
Rule of Professional Conduct 1.8 (i) governs conflicts of interest created by the existence of a familial relationship among participants in a legal matter, and states as follows: A lawyer related to another lawyer as a parent, child, sibling or 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.

Nothing in the text of the Rule or its related Comments indicate that either the son or members of the Public Defender's Office could not properly appear before the judge under the facts presented here.

In addition, Rule 1.10, governing imputed disqualifications, does not apply to conflicts arising under Rule 1.8 (i). Thus, even if the son were deemed to be disqualified by Rule 1.8 (1), that disqualification would not be imputed to other members of the Public Defender's Office.

Nonetheless, reference is made to Canon 3 (c) of the Code of Judicial Conduct, which states as follows:

(1) A judge should disqualify himself in a proceeding in which his impartially might reasonably be questioned, including but not limited to instances where: (d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (ii) is acting as a lawyer in the proceedings. Clearly, Canon 3 (c) would prohibit the judge from participating in matters in which his son was acting as a lawyer. Yet, as with Rule of Professional Conduct 1.8 (i) above, there is nothing in Canon 3 (c) which would mandate recusal from any and all cases involving the Public Defender's Office.

Significantly, it would appear that any potential for abuse could be removed by the solicitor's knowledge of and acquiescence in the situation. In this way, the solicitor could move for recusal in any case in which it was deemed appropriate.

In summary, nothing in the Rules of Professional Conduct or the Code of Judicial Conduct would prohibit members of the Public Defender's Office from appearing before the judge.

(Note Rule 8.4 (f) "Misconduct" should also be reviewed).