If a lawyer is retained by a county to prosecute magistrate-court cases, can he still defend criminal clients in the county's municipal courts?

Plain-English summary

A lawyer was retained by a county (not as an employee of the solicitor's office) to prosecute criminal cases in the county's magistrate courts, handling cases made by the Highway Patrol and the county sheriff's department in the unincorporated areas, but not cases made by city police. He asked to what extent he was limited in representing criminal defendants in the county's municipal courts.

The committee concluded he could defend clients in municipal court. Because the attorney was retained by the county, an attorney-client relationship existed with the county, and Rule 1.7(a) made it a conflict to represent criminal defendants arrested by a county law enforcement officer (routinely, the sheriff's department) unless the rule's exceptions were met; charges by the Highway Patrol did not as clearly carry the same conflict, but the committee advised avoiding representation that would violate Rule 1.7. Charges prosecuted in municipal court, however, are brought only by municipal police officers, so the attorney would be allowed to defend clients there. The committee added, under Rule 1.7(b), that situations could still require declining employment: for example, where the lawyer recognized a potential civil case against the county (refer out, decline, or withdraw with the client's consent and without prejudice), or where, because of his county work, he held confidential information that could impeach a deputy or county-employee witness, in which case a potential conflict existed and he had to exercise judgment about whether to represent the 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 Treat this page as historical context, not current guidance.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 county magistrate-court prosecutor defend criminal cases in municipal court?

A: Yes. The committee concluded he could, because municipal-court charges are brought only by municipal police officers, not by the county whose cases he prosecutes.

Q: Could he defend clients charged by the county sheriff's department?

A: Not without satisfying Rule 1.7. The committee said representing defendants arrested by a county officer would be a conflict unless the lawyer met the rule's exceptions, since he had an attorney-client relationship with the county.

Q: What other situations required him to decline a defense?

A: Under Rule 1.7(b), the committee flagged recognizing a potential civil case against the county, and holding confidential information that could impeach a deputy or county-employee witness; in such cases he had to refer out, decline, withdraw, or exercise judgment about continuing.

Background and rules framework

The opinion applied Rule 1.7 (conflict of interest, current clients), which corresponds to like-numbered Model Rule 1.7. Rule 1.7(a) addresses representation directly adverse to another client, and Rule 1.7(b) addresses representation materially limited by responsibilities to another client, a third person, or the lawyer's own interests.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7(a) / Model Rule 1.7(a): a lawyer shall not represent a client directly adverse to another client absent reasonable belief and consent.
• South Carolina RPC 1.7(b) / Model Rule 1.7(b): a lawyer shall not represent a client if the representation may be materially limited by responsibilities to another client or third person, or the lawyer's own interests, absent reasonable belief and consent.

See also

• SC Bar Ethics Op. 93-25: Lawyer on City Council vs. the City
• SC Bar Ethics Op. 02-02: Part-Time Juvenile Solicitor
• SC Bar Ethics Op. 93-18: Investigator Married to a Deputy

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-22/

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 93-22

An attorney is retained by a county to prosecute criminal cases in the magistrate courts of the county. The attorney is not an employee of the solicitor's office. His duties will include prosecuting cases made by the South Carolina Highway Patrol and county sheriff's department. He will only prosecute cases which originate in the unincorporated areas of the county and will not prosecute any cases made by city police officers.

Question:
To what extent, if any, is the attorney limited in representing criminal defendants in the municipal courts located in that county?

Summary:
Charges prosecuted in the municipal court would only be brought by municipal police officers. Therefore, the attorney would be allowed to defend clients in the municipal courts of his county.

Opinion:
South Carolina Rule of Professional Conduct 1.7(a) provides, "A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation." The factual summary states that the attorney is retained by the county. Therefore, an attorney-client relationship exists between the attorney and the county. It would be a conflict of interest for the attorney to represent criminal defendants arrested by a law enforcement officer of the county unless he complies with the exceptions to Rule 1.7. Routinely, this would be employees of the local sheriff's department. Although charges brought by employees of the highway patrol would not as clearly carry the same conflict, a lawyer should avoid representation of a client where there would be a violation of Rule 1.7.

Charges prosecuted in the municipal court would only be brought by municipal police officers. Therefore, the attorney would be allowed to defend clients in the municipal courts of his county.

Rule 1.7(b) provides, "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyers own interests, unless (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents." Situations may arise where the attorney should decline employment. Some potential conflicts would be: (A) during his representation of a defendant, the attorney recognizes a potential civil case against the county. The attorney should refer the client to other counsel, decline employment, or withdraw from the case where the rights of the defendant would not be prejudiced thereby and with the client's consent. (B) While an attorney has a duty to vigorously represent a criminal defendant he may not use confidential information obtained from another client in that effort. Where a deputy sheriff or county employee is a witness and the attorney, because of his employment, has obtained information which would impeach the credibility of the witness, a potential conflict exists and the attorney must exercise his judgment in deciding whether to represent the client.