Can different lawyers in the same public defender office each represent one of several co-defendants in a criminal case?

Plain-English summary

A public defender office had four lawyers and was asked whether, in a case with three co-defendants, each defendant could be represented by a different lawyer from the same office.

The committee first treated the office as a law firm, citing its earlier S.C. Bar Advisory Opinion 78-02 (1/78) that a public defender office is sufficiently like a firm to be barred from representing co-defendants with conflicting interests, and noting nothing in the current Rules changed that. It relied on the Rules' definition of "firm" to include lawyers employed in a legal services organization, and on the Comment to Rule 1.10 stating that lawyers employed in the same unit of a legal services organization constitute a law firm. Turning to multiple-defendant representation, the committee acknowledged the Rules create no express per se prohibition; Rule 1.7(a) and (b) bar a representation directly adverse to another client or materially limited by the lawyer's duties to another, subject to the exception of reasonable belief plus consent after consultation, and Rule 1.8(g) appears to contemplate representing multiple criminal defendants. But it quoted the Comment to Rule 1.7 that the potential for conflict in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant. Because a single lawyer who ought to be disqualified would have that disqualification imputed to the rest of the firm under Rule 1.10(a), and the office is a firm, the committee concluded that, while there may be no per se prohibition, ordinarily lawyers in the public defender office should not represent multiple criminal defendants.

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 Treat this page as historical context, not current guidance.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: Is a public defender office treated as a law firm for conflicts?

A: Yes. The committee said the office falls within the Rules' definition of "firm" (lawyers in a legal services organization) and the Comment to Rule 1.10 that lawyers in the same unit constitute a firm.

Q: Can different lawyers in one public defender office each take a separate co-defendant?

A: The committee said ordinarily no. Because one lawyer should ordinarily decline more than one co-defendant, and that disqualification is imputed under Rule 1.10(a), the office's lawyers ordinarily should not split the co-defendants among themselves.

Q: Is there an absolute, per se rule against representing multiple criminal defendants?

A: No. The committee said the Rules create no express per se prohibition (and Rule 1.8(g) contemplates multiple-defendant representation), but the Comment to Rule 1.7 makes declining ordinarily the expected course given the grave potential for conflict.

Background and rules framework

The opinion applied Rule 1.7 (conflict of interest), Rule 1.8(g) (aggregate settlements / multiple representation), and Rule 1.10 (imputed disqualification), each corresponding to the like-numbered Model Rule. The analysis turned on classifying the public defender office as a "firm" under the Rules' definitions and the Comment to Rule 1.10, then applying the Comment to Rule 1.7 on multiple criminal defendants.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7 / Model Rule 1.7: conflicts of interest; the Comment counsels ordinarily declining more than one co-defendant in a criminal case.
• South Carolina RPC 1.8(g) / Model Rule 1.8(g): representation of multiple clients, including criminal co-defendants.
• South Carolina RPC 1.10 / Model Rule 1.10: imputed disqualification within a firm; the Comment treats a legal services unit as a firm.

Other opinions cited:

• SC Bar Advisory Opinion 78-02 (1/78): a public defender office is sufficiently like a firm to be barred from representing co-defendants with conflicting interests.

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-92-21/

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 92-21

There are four lawyers in the public defender's office. There are three co-defendants in a criminal case.

Question:
May each of the defendants be represented by a different lawyer in the same public defender's office?

Summary:
The public defender's office is treated as a law firm for purposes of imputing disqualification. A single public defender ordinarily should not represent more than one co-defendant, and the disqualification would be imputed to other members of the same office.

Opinion:
This Committee has previously opined that a public defender's office is sufficiently like a law firm in character so as to be prohibited from representing co-defendants with conflicting interests. S.C. Bar Adv. Op. 78-02 (1/78). Nothing in the current Rules of Professional Conduct changes that characterization. The definitional section of the Rules defines a firm to include "lawyers employed in a legal services organization." We think that the term "legal services organization" is sufficiently broad to encompass the public defender. Also, the Comment to Rule 1.10 advises that lawyers "employed in the same unit of a legal services organization constitute a law firm." Having concluded that the public defender's office is to be treated as any law firm for purposes of this inquiry, we next examine the restrictions upon representing co-defendants in a criminal matter. As a general rule, a lawyer may not undertake any representation if the interests of the client will be directly adverse to the interests of another client or if the representation may be materially limited by the lawyer's responsibility to another client. Rule 1.7 (a) & (b). The only exception to this prohibition is if the lawyer reasonably believes the representation will not be adversely affected and each client consents after consultation.

The Rules do not, therefore, create an express per se prohibition against representation of multiple criminal defendants. Indeed, Rule 1.8(g) appears to contemplate representation of multiple criminal defendants. However, the Comment to Rule 1.7 advises that "(t)he potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant." S.C. Bar Advisory Opinion 92-21, p.2 If a single lawyer ought to be disqualified from representing more than one criminal defendant in a matter, that disqualification is imputed to all other members of the firm. Rule 1.10(a). Given our earlier discussion regarding the characterization of the public defender's office as a firm for purposes of Rule 1.10, it is our opinion that, while there may be no per se prohibition, ordinarily lawyers in the public defender's office should not represent multiple criminal defendants.