If a lawyer contracts to represent a state agency in one county, can the lawyer's firm be appointed against that agency in another county?

Plain-English summary

Lawyer A was a contract or part-time attorney representing the South Carolina Department of Social Services (SCDSS) in Family Court in one county. The committee was asked whether members of Lawyer A's firm could be appointed to represent a defendant or a guardian ad litem in an SCDSS case in another county.

The committee concluded neither Lawyer A nor members of the firm should take such representations in any county. It reasoned that SCDSS is a statewide agency: although each county has an office bearing the county's name, the state office supervises them, so the client is the statewide agency rather than a single county office. On that assumption, Rule 1.7 bars the contract attorney from any representation adverse to SCDSS, and because a defendant's interests are normally adverse to SCDSS, and a guardian ad litem's interests could be adverse, the contract attorney should not represent either in any SCDSS matter regardless of county. Under Rule 1.10, that bar extends to every member of the firm. The committee noted Rule 1.7 permits the representation if all affected clients consent in writing.

Currency note

This opinion was issued in 1994, 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 Treat this page as historical context, not current guidance.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: Could a member of the firm be appointed against the agency in a different county?

A: The committee concluded no. Because the client is the statewide agency, the conflict follows it into every county, so neither the contract attorney nor any firm member should take the case there.

Q: Why did the county where the case arose not matter?

A: The committee treated SCDSS as a single statewide client supervised by the state office, so adversity to SCDSS exists regardless of which county office is involved.

Q: Was there any way to take the representation?

A: Yes. The committee noted Rule 1.7 allows the representation if all affected clients give written consent.

Background and rules framework

The opinion applied Rule 1.7 (concurrent conflicts of interest), under which a lawyer may not represent a client directly adverse to, or materially limited by responsibilities to, another client, and Rule 1.10 (imputed disqualification within a firm). The committee's analysis turned on identifying the statewide agency as the organizational client. The South Carolina rule numbers correspond to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7 / Model Rule 1.7: concurrent conflicts of interest (direct adversity; material limitation; written consent).
• South Carolina RPC 1.10 / Model Rule 1.10: imputed disqualification within a firm.

See also

• SC Bar Ethics Op. 94-28: Agency Contract Lawyer Opposing a Different Agency
• SC Bar Ethics Op. 94-31: Solicitor's Firm Defending in Another Circuit
• SC Bar Ethics Op. 94-32: Volunteer Prosecutor Defending

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-17/

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 94-17

If Lawyer A in private practice is a contract or part-time attorney with the South Carolina Department of Social Services "SCDSS" to represent the agency in Family Court cases in one county, may members of his or her firm be appointed to represent a defendant or a Guardian ad Litem in a SCDSS case in another county?

Summary:
Neither Lawyer A nor members of Lawyer A's firm should represent a defendant or a Guardian ad Litem in SCDSS cases, whether appointed or retained, in other counties.

Opinion:
"While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c) or 2.2." SCACR 407, Rule 1.10(a). If it is determined that Rule 1.7 applies and prohibits Lawyer A from representing a defendant or a Guardian ad Litem, all members of Lawyer A's firm will be similarly prohibited from entering into such a representation. Therefore, it is necessary to consider whether or not Lawyer A is prohibited from representation.

The applicable sections of Rule 1.7 provide "A lawyer shall not represent a client if the representation of that client will be directly adverse to another client..." and " 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...." Since this question asked specifically about matters involving the SCDSS, this opinion will limit its examination to such matters.

The structure of the SCDSS, its county offices, and the contract with the part-time attorneys will shed some light on this matter. SCDSS is a statewide agency. Each county in South Carolina has an office of the SCDSS, and those offices are commonly referred to by the county name, (e.g. the Richland County Department of Social Services.) Despite the fact that the county offices bear the name of the county in which they located, the state office maintains supervision and some administrative functions over the county offices. While the committee does not make any legal finding of who is Lawyer A's client, it appears that SCDSS is a statewide agency and, although the contract attorney only acts within a specific geographic area, the client is the statewide agency.

Based upon the assumption that the client is SCDSS, Rule 1.7 would prohibit any contract attorney from undertaking or being appointed to any representation of any person whose interests are, or might be, adverse to the SCDSS. Since a defendant's interests are normally adverse to the SCDSS, a contract attorney should not represent any defendant in any matter in Family Court involving the SCDSS, regardless of the county in which the case is brought. The interests of the Guardian ad Litem could be adverse to the interests of the SCDSS. In such a case, a contract attorney should not represent any Guardian ad Litem in Family Court in any case involving the SCDSS. As stated above, pursuant to Rule 1.10, since the contract attorney is barred from such representations, any member of the contract attorney's firm would be similarly barred from representation.

It is necessary to note that Rule 1.7 allows representation when all clients involved consent, in writing, to the representation. If proper waivers were signed, it would be possible for contract attorneys to represent a defendant or a Guardian ad Litem.