When a public defender becomes a prosecutor, can he discuss or prosecute the cases he handled as a defender?

Plain-English summary

A public defender moved into the solicitor's office to work as a solicitor. The questions were whether he could discuss with other attorneys in the solicitor's office any of the cases he had worked on as a public defender, and whether the office had to recuse itself automatically from cases he had worked on.

The committee analyzed the move under Rule 1.9 (conflict of interest, former client). It explained that when a lawyer has been directly involved in a specific matter, later representation of others with materially adverse interests (here, the State) is clearly prohibited; the test is whether the lawyer was so involved that the new representation amounts to changing sides. That obligation requires the individual lawyer to abstain from adverse representation in substantially related matters, but does not entail imputed disqualification of other lawyers, so the move from the public defender's office to the solicitor's office did not preclude each office from continuing to represent clients with adverse interests, as long as the confidentiality conditions of Rule 1.9(b) and (c) were met. Information acquired as a public defender could not later be used or revealed to the former client's disadvantage. The committee concluded that the former public defender who has actual knowledge of information may not discuss the cases he worked on with anyone in the solicitor's office, except for generally known information about the client, and where he worked on a case as a public defender he should recuse himself and let another solicitor handle it (citing State v. Smart). Disqualification protects former clients and can be waived only on disclosure of the lawyer's role for the new client.

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 Treat this page as historical context, not current guidance.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 former public defender prosecute the cases he defended?

A: No. The committee concluded that where he worked on a case as a public defender he should recuse himself and allow another solicitor to handle it, under Rule 1.9.

Q: Can he discuss those old cases with the solicitor's office?

A: Only as to generally known information about the client. The committee said he may not otherwise discuss cases he worked on as a public defender, and may not use or reveal information acquired then to the former client's disadvantage.

Q: Does his arrival disqualify the whole solicitor's office?

A: No. The committee said the obligation is individual abstention, not imputed disqualification, so the office may continue handling adverse matters if the confidentiality conditions of Rule 1.9(b) and (c) are met.

Background and rules framework

The opinion applied Rule 1.9 (duties to former clients) and Rule 1.6 (confidentiality), which correspond to like-numbered Model Rules. Rule 1.9 bars adverse representation in the same or a substantially related matter and bars using or revealing the former client's information, while declining to impute the individual's disqualification to the whole office.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9 / Model Rule 1.9: a lawyer who formerly represented a client may not represent another adverse to that client in the same or a substantially related matter, and may not use or reveal the former client's information.
• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality of information.

Cases:

• State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982), former public defender permitted to handle a matter in later employment with the solicitor where confidential information was not disclosed.

See also

• SC Bar Ethics Op. 93-01: PCR Against a Fellow Public Defender
• SC Bar Ethics Op. 02-03: Ex-Solicitor's Civil Case
• 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-93-03/

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 93-03

A public defender moves into the solicitor's office to work as a solicitor.

Question:
May the former public defender discuss any of the cases which he worked on as a public defender with any of the attorneys in the solicitor's office? Should the solicitor's office automatically recuse itself if the former public defender, now solicitor, worked on these cases?

Summary:
The former public defender who has actual knowledge of information may not discuss any of the cases which he worked on as a public defender with any of the attorneys in the solicitor's office, except for generally known information about the client.

Where the former public defender, now solicitor, worked on these cases, he should recuse himself form these cases and allow another solicitor to handle the case.

Opinion:
Rule 1.9, Conflict of Interest, Former Client, addresses this question.

(a) A lawyer who has formally represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interest are materially adverse to the interests of the former client unless the former client consents after consultation.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:
(1) whose interests are materially adverse to the person; and (2) about whom the lawyer has acquired information by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client consents after consultation.
(c) A lawyer who has formerly represented a client in a matter ... shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client ... or (2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.

According to the comments of Rule 1.9, when a lawyer (e.g., a public defender) has been directly involved in a specific transaction, subsequent representation of other clients, with materially adverse interests (e.g., the State) is clearly prohibited. Further, the underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.

A lawyer has an obligation to decline subsequent representations involving positions adverse to a former client arising in substantially related matters. This obligation requires abstention from adverse representation by the individual lawyer involved, but does not properly entail abstention of other lawyers through imputed disqualification. Thus, if a lawyer left the public defender's office for the solicitor's office, the new affiliation would not preclude each office from continuing to represent clients with adverse interests in the came or related matters, so long as the conditions of paragraphs (b) and (c) of Rule 1.9 concerning confidentiality have been met.

Information acquired by the lawyer (public defender) in the course of representing a client may subsequently not be used or revealed by the lawyer to the disadvantage of the client.

Finally, disqualification from subsequent representation is for the protection of former clients and can be waived by them. A waiver is effective only if there is disclosure of the circumstances, including the lawyer's role in behalf of the new client (e.g., the State).

Therefore, the public defender, who has actual knowledge of information, may not discuss any of the cases which he worked on as a public defender with any of the attorneys in the solicitor's office, except for generally known information about the client. See also State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982) (under the prior Code of Professional Responsibility, a former employee of the public defender was permitted to handle a matter in later employment with the solicitor where confidential information was not disclosed).

Where the former public defender, now solicitor, worked on these cases, he should recuse himself form these cases and allow another solicitor to handle the case.