Can a lawyer who serves on county council, which sets magistrates' facilities and pay, practice before those magistrates, and can the lawyer's partner?

Plain-English summary

An attorney was a member of county council, which determines the facilities, support personnel, full- or part-time status, and compensation available to a magistrate (above the statutory minimum), and which hears cases when a magistrate contests rulings about his classification or compensation. The committee was asked whether the attorney or his partner may practice before magistrates in that county.

The committee said the language of the Rules does not expressly prohibit a county council member from representing clients in the local magistrate's court, and that under Rule 1.10(a) any disqualification of the council member would be imputed to his partner, while if the council member is not disqualified, his firm member is likewise not barred. It pointed to Rule 1.11(a) (a lawyer should not represent a private client in a matter in which he participated personally and substantially as a public officer, absent the agency's consent) and Rule 1.11(b) (a lawyer holding confidential government information may not represent a private client adverse to that person where the information could be used to their material disadvantage), noting the comment's concern that a lawyer not exploit public office for a private client's advantage or gain unfair advantage from confidential government information, balanced against the government's legitimate need to attract qualified lawyers. Finally, the committee said the relevant State Ethics Commission advisory opinions should be reviewed, citing Opinion 83-004 (city council members should not represent clients before city courts or against the city) and suggesting the same logic would probably apply to county council members and the local magistrate's court. The committee said it did not address whether a magistrate should be disqualified under the Code of Judicial Conduct.

Currency note

This opinion was issued in 1991, 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 Treat this page as historical context, not current guidance.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: Can a county council member practice before the county's magistrates?

A: The committee said the Rules do not expressly prohibit it, but State Ethics Commission opinions should be reviewed, including one advising city council members not to appear before city courts.

Q: If the council member is disqualified, can his partner appear?

A: The committee said no; under Rule 1.10(a) the council member's disqualification is imputed to his partner, but where he is not disqualified, his firm member is also not barred.

Q: What Rule 1.11 concerns apply?

A: The committee cited Rule 1.11(a) (no private representation in a matter he handled as a public officer without consent) and Rule 1.11(b) (no representation using confidential government information to a person's material disadvantage).

Background and rules framework

The opinion interprets Rule 1.10 (imputed disqualification) and Rule 1.11 (successive government and private employment), corresponding to Model Rules 1.10 and 1.11, and directs attention to State Ethics Commission opinions for the public-office side of the question. It expressly leaves the magistrate's recusal under the Code of Judicial Conduct unaddressed.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.10(a) / Model Rule 1.10: a council member's disqualification is imputed to his partner.
• South Carolina RPC 1.11(a),(b) / Model Rule 1.11: limits on a public officer's later private representation and on use of confidential government information.

Other opinions cited:

• State Ethics Commission Advisory Opinion 83-004: city council members should not represent clients before city courts or against the city.

See also

• SC Bar Ethics Op. 91-05: Conflicts for a Firm Whose Members Are the County and Town Attorneys
• SC Bar Ethics Op. 91-13: Conflicts for Lawyers at the Office of Child Support Enforcement

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-91-16/

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 91-16

An attorney is a member of county council. The council determines: a) the facilities which the magistrate has available; b) the numbers and compensation of support personnel available to the magistrate; c) whether or not the magistrate is full-time or part-time; and d) the amount of compensation a magistrate receives, if any above the statutory minimum set forth in Section 22-8-40. The county council hears cases when a magistrate contests rulings or actions relating to his classifications, reclassifications or compensation.

Question:
May the attorney or his partner practice before magistrates in that county?

Summary:
The Rules of Professional Conduct do not prohibit the county council member from representing clients in Magistrate Court, but opinions of the State Ethics Commission should be reviewed. In those situations in which the county council member would not be able to practice before the local magistrate, representation by his partner would also not be allowed.

Opinion:
The language of the SC Rules of Professional Conduct does not expressly prohibit a county council member from representing clients in the local Magistrate's Court. If the county council member is disqualified under certain provisions of the SC Rules, the disqualification would be imputed to his partner under Rule 1.10(a). Where the council member is not disqualified under the new rules, a member of his firm would also not be prohibited from appearing in the local Magistrate's Court.

Reference should be made to Rule 1.11(a) which states that a lawyer should 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. Also, Rule 1.11(b) states that a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to material disadvantage of that person. Also, note that the Comment to this rule states that this rule prevents a lawyer from exploiting public office for the advantage of a private client. Further, it states that a lawyer should not be in a position where benefit to a private client might affect performance of the lawyer's professional functions on behalf of public authority. Unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. On the other hand, the Comment does state that the government has a legitimate need to attract qualified lawyers and that the disqualification rule should not impose too severe a deterrent against entering public service.

Finally, the relevant advisory opinions of the State Ethics Commission should also be reviewed. State Ethics Commission Advisory Opinion No. 83-004 advises that city council members should not represent clients before city courts nor represent clients against the city. The logic would probably be the same as far as county members and the local Magistrate's Court.

This opinion does not address whether a magistrate should be disqualified under the Code of Judicial Conduct.