Can a part-time public defender handle a post-conviction case claiming another public defender in the same corporation erred at trial?

Plain-English summary

A part-time public defender working in a public defender corporation was appointed to represent a post-conviction relief (PCR) applicant whose claim alleged error by another public defender in the same corporation. The two defenders did not have common offices, share employees, or share cases. The questions were whether the appointed defender could represent the PCR applicant against the other defender's trial work, and whether the applicant could waive the conflict on full disclosure.

The committee concluded that, on these facts, there was no single public defender's office for purposes of imputed disqualification under Rule 1.10. It recalled Advisory Opinion 92-21, which equated a public defender office to a legal-services organization so that lawyers in the same unit constitute a law firm, and noted that Rules 1.7 and 1.9 generally bar a lawyer from representation directly adverse to a current or former client (here, the former client of the corporation) absent consent, with Rule 1.10 extending disqualification to others in the same firm. But because the questions involved a former client of the corporation now represented by another corporation attorney in a PCR hearing, and the defenders maintained separate offices, the committee concluded that as long as there was no shared information among the public defenders that would be materially adverse to the client, the part-time public defender was not barred by a conflict from representing the former client in the PCR hearing.

Currency note

This opinion was issued in 1993, 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 Treat this page as historical context, not current guidance.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 public defender bring a PCR claim against another defender in the same corporation?

A: On these facts, yes. The committee concluded that where the defenders keep separate offices and do not share employees or cases, they are not one firm under Rule 1.10, so one may handle the PCR claim absent shared adverse information.

Q: What made the difference for imputed disqualification?

A: The separate offices. The committee distinguished Advisory Opinion 92-21 (lawyers in the same unit of a legal-services organization are a firm) and found no single office here for purposes of imputing disqualification under Rule 1.10.

Q: What is the limiting condition?

A: No shared information materially adverse to the client. The committee said the representation is proper as long as the defenders did not share such information.

Background and rules framework

The opinion applied Rule 1.10 (imputed disqualification), Rule 1.9 (former clients), and Rule 1.7 (current-client conflicts), which correspond to like-numbered Model Rules. The analysis turned on whether the part-time defenders' separate offices made them a single firm for imputation purposes.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.10 / Model Rule 1.10: imputed disqualification among lawyers in the same firm.
• South Carolina RPC 1.9 / Model Rule 1.9: a lawyer may not represent a person adverse to a former client in a substantially related matter absent consent.
• South Carolina RPC 1.7 / Model Rule 1.7: current-client conflicts.

Other opinions cited:

• SC Bar Advisory Opinion 92-21 (public defender office as a legal-services organization / law firm).

See also

• SC Bar Ethics Op. 93-03: Public Defender Turned Prosecutor
• SC Bar Ethics Op. 93-18: Investigator Married to a Deputy
• SC Bar Ethics Op. 03-02: Prosecuting a Former Client

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-01/

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 93-01

A part time public defender working in a public defender corporation was appointed to represent a post conviction relief applicant. The post conviction relief alleges error by another public defender employed by the same corporation. They do not have common offices, share employees, or share cases.

Question:
When part time public defenders have separate offices, is it proper for a part time public defender to represent an applicant for post conviction relief alleging error by another public defender who represented the same client at trial? Can the post conviction relief applicant waive the conflict of interest objection upon full disclosure of the facts?

Summary:
Under the facts described, where separate offices are maintained by each public defender, there would not be a single public defender's office for purposes of imputing disqualification under Rule 1.10.

Opinion:
In Advisory Opinion, 92-21 this committee addressed a public defender office being equated to a "legal services organization" and therefore under Rule 1.10 "lawyers employed in the same unit of a legal services organization constitute a law firm." Rule 1.7(a) & (b) would not allow as a general rule a lawyer to represent a client if that representation would be directly adverse to the interests of another client or if the lawyer's responsibility to another client would be affected except if the lawyer believes the representation would not adversely affect the clients and there is consent after consultation.

Rule 1.9(a)(b) & (c) would not allow representation of a client in a matter "in which that person's interests are materially adverse to the interests of a former client unless the former client consents after consultation." Rule 1.10(a)(b) & (c) extends the disqualification to other members of the same firm.

The questions presented do not involve a new client but rather a former client of the public defender's corporation being represented by another attorney in the corporation in a post conviction relief hearing. As long as there is no shared information among the public defenders that would be materially adverse to the client, the public defender should not be barred by a conflict of interest in representing the former client in a post conviction relief hearing.