Can a law firm sue a municipality when one of its lawyers sits on that municipality's city council?

Plain-English summary

A client and a municipality had been adverse parties in an administrative proceeding before a state agency. After the final agency decision, a law firm took on the client and filed an action for judicial review seeking relief adverse to the municipality, which was a party to the review action. A member of that same firm also served on the city council of the municipality. The question was whether the firm should undertake or continue the representation.

The committee analyzed the question under Rules 1.11 and 1.7(b). Rule 1.11 bars a lawyer from representing a private client in a matter in which the lawyer participated personally and substantially as a public officer or employee unless the appropriate government agency consents; where that lawyer is disqualified, the firm may continue only if the disqualified lawyer is screened from participation, is apportioned no part of the fee, and prompt written notice is given to the appropriate governmental agency, and the lawyer may not use confidential government information against the client's interests. Rule 1.7(b), the general conflict rule, bars representation materially limited by the lawyer's responsibilities to other clients or third persons unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation. The committee reviewed its prior opinions on lawyers holding local office (90-35, 91-05, 91-16, and 92-10), which turned on whether the lawyer's public responsibilities would adversely affect the representation, on client and government consent, and on whether the lawyer held non-public confidential information, and pointed to the State Ethics Commission opinions and the Ethics in Government Act as further considerations.

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 Treat this page as historical context, not current guidance.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 firm represent a client against a city when one of its lawyers is on the city council?

A: Only conditionally. The committee said Rules 1.11 and 1.7(b) could preclude it, and the firm may proceed only with the client's consent after notice and with the council-member lawyer screened.

Q: When must the firm give the municipality written notice?

A: If the council-member lawyer participated personally and substantially as a public officer in the matter, the committee said written notice must be given to the municipality, and that lawyer must be screened and apportioned no part of the fee.

Q: What did Rule 1.7(b) add to the analysis?

A: It barred representation materially limited by the lawyer's responsibilities to others unless the lawyer reasonably believed it would not be adversely affected and the client consented; prior opinions weighed factors like non-public confidential information and prior dealings with the government body.

Background and rules framework

The opinion applied Rule 1.11 (special conflicts for former and current government officers and employees) and Rule 1.7(b) (current-client conflicts), which correspond to like-numbered Model Rules. It also referenced State Ethics Commission opinions and the Ethics in Government Act.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.11 / Model Rule 1.11: a lawyer who participated personally and substantially as a public officer may not represent a private client in the matter absent consent; the firm may continue only with screening, no fee to the disqualified lawyer, and written notice.
• South Carolina RPC 1.7(b) / Model Rule 1.7(b): a lawyer shall not represent a client if the representation is materially limited by responsibilities to others, absent reasonable belief and client consent.

Other opinions cited:

• SC Bar Advisory Opinions 90-35, 91-05, 91-16, and 92-10; State Ethics Commission Opinion 83-004.

See also

• SC Bar Ethics Op. 93-22: County Prosecutor as Defender
• SC Bar Ethics Op. 13-08: Spouse Was Former Agency Counsel
• SC Bar Ethics Op. 02-02: Part-Time Juvenile Solicitor

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-25/

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 93-25

Client and municipality were adverse parties to an administrative proceeding before a state agency. The law firm undertook representation of the client after the final agency decision and initiated an action for judicial review on behalf of the client seeking relief adverse to the municipality's interest. The municipality is a party to the judicial review action.

Question:
Should a law firm undertake or continue representation of a client in a matter in which a municipality is an adverse party where a member of that law firm also serves as a member of the city council of that municipality?

Summary:
Rule 1.11 and Rule 1.7(b) preclude such representation if the representation is limited by the lawyer or firm's responsibility to other clients or third parties. The client must consent after notice and the lawyer on council must be screened. If the lawyer on council participated personally and substantially as a public officer or employee, then written notice must be given to the municipality.

Opinion:
Rule 1.11 provides that a lawyer shall not represent a private client in connection with a matter in which the lawyer has participated personally or substantially as a public officer or employee unless the appropriate government agency consents after consultation. The Rule continues that no lawyer in a firm in which that lawyer, the public officer or employee is associated may undertake or continue representation unless the disqualified lawyer (public officer) is screened from any participation, is apportioned no part of the fee, and written notice is promptly given to the appropriate governmental agency. The Rule continues to caution the lawyer against utilization of confidential government information. The lawyer/public officer having confidential information acquired during his public service may not represent a private client whose interests are adverse. Subparagraph B. of Rule 1.11 provides that a firm may undertake or continue representation only if the disqualified lawyer is screened and apportioned no part of the fee.

Rule 1.7(b), the general conflict of interest rule, provides that a lawyer shall not represent a client if the representation is materially limited by the lawyer's responsibility to other clients or other third parties. The lawyer must believe that the representation will not be adversely affected and the client consents after consultation.

The interplay of these rules has been addressed in prior opinions of this Committee. Advisory Opinion 90-35 (1/91) provided that a lawyer who also served as a county council member could represent a client in a suit against a county official only if the lawyer reasonably believed his responsibilities as council member would not adversely affect the representation of the client, and he obtains the client's consent. The opinion cautioned that the lawyer should consider whether he possessed confidential information not available to the general public, whether there was a long- standing relationship with the county official or any prior representations taken for that official or that department.

In Advisory Opinion 91-05 (5/91), a lawyer who served as a county attorney or town attorney and his firm were precluded from representing clients against the town or county, representing criminal defendants arrested by law enforcement officers in the county or town, representing criminal defendants before magistrates or judges in the town or county, and appearing in probate court or before any boards or agencies of the county or town.

In Advisory Opinion 91-16 (8/91), a lawyer who was a county council member was not automatically disqualified from representing clients in local magistrate's court despite the fact county council was responsible for allocating facilities for the magistrate's court and determining the magistrate's compensation; however, the opinion cited the opinions of the State Ethics Commission suggesting that representation should not be undertaken. See also State Ethics Commission Opinion 83-004.

Finally, in Advisory Opinion 92-10 (4/92), a lawyer in a firm with another lawyer who served on the board of a county social services department could represent defendants in child neglect and abuse proceedings brought by the department so long as the department and the defendants consent. See also the Ethics in Government Act.