Can a part-time public defender represent paying criminal defendants in private practice, whether in the same county or another county?

Plain-English summary

The inquiry asked whether a part-time public defender may represent paying criminal defendants, both in a different county and in the same county or judicial circuit where the lawyer serves as a public defender.

The committee answered first under the Rules of Professional Conduct. Citing South Carolina Bar Advisory Opinion 91-19, it said it would not violate the Rules for a part-time public defender in one county to represent criminal defendants in other counties, and that there is no ethical prohibition on a public defender representing criminal defendants in the county and judicial district where the lawyer serves, provided those cases are unrelated to the criminal matters handled as public defender. The committee then noted that, while opining on substantive law is beyond its purview, the Defense of Indigents Act appears to specifically prohibit the contemplated activity: it quoted S.C. Code Ann. Section 17-7-60(e), which provides that public defenders and assistant public defenders "shall not represent persons charged with a criminal offense under the laws of this state in their private practice of law."

Currency note

This opinion was issued in 1992, 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 Treat this page as historical context, not current guidance.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: Do the ethics rules prohibit a part-time public defender from private criminal defense work?

A: The committee said no. Citing Opinion 91-19, it found no rules violation in representing paying criminal defendants in other counties, or in the same county and district if the cases are unrelated to the public-defender work.

Q: So can a part-time public defender take private criminal cases?

A: The committee flagged a separate barrier: the Defense of Indigents Act, which it read to specifically prohibit public defenders and assistant public defenders from representing persons charged with a state criminal offense in their private practice.

Q: Does the private case have to be unrelated to the public-defender caseload?

A: Yes, on the ethics side. The committee conditioned the absence of a rules violation in the same county and district on the private cases being unrelated to the criminal matters handled as public defender.

Background and rules framework

The opinion built on South Carolina Bar Advisory Opinion 91-19 (part-time public defender representing defendants in other counties) and turned chiefly on a statute rather than a numbered Rule of Professional Conduct. The committee quoted S.C. Code Ann. Section 17-7-60(e) of the Defense of Indigents Act while noting that substantive-law questions are beyond its authority.

Citations and references

Statutes:

• S.C. Code Ann. Section 17-7-60(e) (Defense of Indigents Act): public defenders and assistant public defenders shall not represent persons charged with a state criminal offense in their private practice of law.

Other opinions cited:

• SC Bar Advisory Opinion 91-19: a part-time public defender in one county may represent criminal defendants in other counties.

See also

• SC Bar Ethics Op. 09-02: Public Defenders Representing Co-Defendants
• SC Bar Ethics Op. 92-16: County and Municipal Attorney Conflicts

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-18/

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 92-18

1. Is it proper for a part-time public defender in one county to represent paying criminal defendants in a different county?
2. Is it proper for a part-time public defender to represent paying criminal defendants in the same county or in the same judicial circuit in which he/she practices as a public defender?

Summary:
The Rules of Professional Conduct do not prohibit a part-time public defender from representing paying criminal defendants in any county. However, such representation would appear to be in violation of the Defense of Indigents Act in South Carolina.

Opinion:
South Carolina Bar Advisory Opinion 91-19 stated that it would not be a violation of the Rules of Professional Conduct for a part-time public defender in one county to represent criminal defendants in other counties. Furthermore, there is no ethical prohibition against a public defender representing criminal defendants in the county and judicial district in which he/she practices as a public defender, provided that such cases are unrelated to the criminal matters handled as public defender.

While it is beyond the purview of this Committee to render opinions on substantive matters of law, it should be pointed out that the Defense of Indigents Act in South Carolina appears to specifically prohibit the activities contemplated in this question. S.C. Code Ann. S 17-7-60(e) states in pertinent part: "...public defenders and assistant public defenders shall not represent persons charged with a criminal offense under the laws of this state in their private practice of law."