When a government agency lawyer learns from opposing agency counsel that a cleared employee was actually guilty, what may the agency lawyer do with that information?

Plain-English summary

A civil-service attorney (Lawyer #2) had defended an agency employee in an investigation that cleared the employee. Lawyer #2 then improvidently told the agency's own lawyer (Lawyer #1), who worked in a separate office under a separate chain of command, that the employee had in fact been guilty and may have broken other laws. If repeated, the conduct could endanger the agency's clients and expose the agency to liability. The committee was asked what Lawyer #1 could or had to do with that information.

The committee, assuming the separate legal divisions are the equivalent of separate law firms, applied Rule 1.13(b): a lawyer for an organization, including a government agency, must proceed in the organization's best interest. Where the lawyer knows an employee is committing or intends an act that violates law, the lawyer may take measures to prevent harm to the organization or its clients, including those in Rule 1.13(b)(1)-(3). The committee stressed that government and military lawyers may also be governed by agency statutes and regulations, which can impose additional duties.

The committee added that Lawyer #1 should consider whether Lawyer #2's own conduct violated Rule 1.6 (confidentiality), Rule 4.1(b) (truthfulness to others), or Rule 4.4 (respect for the rights of third persons), the last being especially relevant where the client's conduct, if repeated, could seriously harm third parties. If so, Lawyer #1 must consider whether Lawyer #2's conduct raises a question of honesty, trustworthiness, or fitness sufficient to require reporting under Rule 8.3.

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 Treat this page as historical context, not current guidance.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: What governs the agency lawyer's response to the information?

A: The committee applied Rule 1.13(b): as counsel for the organization, the lawyer proceeds as reasonably necessary in the organization's best interest, and may take measures to prevent harm to the agency or its clients.

Q: Do other rules or regulations come into play for a government or military lawyer?

A: Yes. The committee noted that statutes and regulations of the specific agency or branch of service may define additional duties beyond the Rules of Professional Conduct.

Q: Did the disclosing lawyer's conduct have to be reported?

A: The committee did not decide that, but directed Lawyer #1 to consider whether Lawyer #2 violated Rules 1.6, 4.1(b), or 4.4, and if so whether it raised a fitness question requiring a report under Rule 8.3.

Background and rules framework

The opinion centered on Rule 1.13 (organization as client), specifically Rule 1.13(b)'s direction to act in the organization's best interest, and brought in Rule 1.6 (confidentiality), Rule 4.1(b) (truthfulness in statements to others), Rule 4.4 (respect for rights of third persons), and Rule 8.3 (reporting professional misconduct) as to the disclosing lawyer's conduct. The South Carolina rule numbers correspond to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.13 / Model Rule 1.13: organization as client (the opinion applied Rule 1.13(b)).
• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality of information.
• South Carolina RPC 4.1 / Model Rule 4.1: truthfulness in statements to others (Rule 4.1(b)).
• South Carolina RPC 4.4 / Model Rule 4.4: respect for rights of third persons.
• South Carolina RPC 8.3 / Model Rule 8.3: reporting professional misconduct.

See also

• SC Bar Ethics Op. 94-17: Agency Contract Lawyer and Firm Conflict
• SC Bar Ethics Op. 94-28: Agency Contract Lawyer Opposing a Different Agency
• SC Bar Ethics Op. 94-23: Self-Defense Disclosure Before an Agency

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-18/

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 94-18

One civil service attorney represented an agency employee who is a member of the armed forces in connection with an investigation of the employee's alleged violation of law. The agency's attorney works in the agency's main legal office, is independent of the defense lawyer, and each have a separate chain of command. The investigation cleared the agency employee. Subsequently, the lawyer for the employee improvidently revealed to the agency lawyer that his client had been guilty of the charges and may have violated other laws.

Question:
Where a determination has been made by a government agency that there is insufficient evidence to support adverse action against one of its employees who has been accused of a violation of a law; and where an attorney for that agency, Lawyer #1, is subsequently informed by another of the agency attorneys who represented the accused in that proceeding, Lawyer #2, that the accused committed the offense alleged as well as other possible offenses; and, where the alleged offenses, if repeated, are likely to pose a danger to clients of the agency and expose the agency to possible liability, is Lawyer #1 permitted or required to inform the agency of the information divulged by Lawyer #2? What duty does Lawyer #1 and/or the agency have to take action on the information?

Summary:
A lawyer for a governmental agency who knows that an employee of the organization is engaged in action or intends to commit an act which is a violation of law which might reasonably be imputed to the organization and is likely to result in substantial injury to the organization, shall proceed as is reasonably necessary in the best interest of the organization.

Opinion:
This opinion deals only with the facts presented and the committee assumes that the separate legal divisions are the equivalent of separate law firms.

Rule 1.13(b) requires a lawyer for an organization, including a government agency, to proceed in the best interest of the organization. Where the lawyer knows that an employee of the organization is engaged in action or intends to commit an act which is a violation of law, the lawyer may take necessary measures to prevent harm to the organization or its clients, including the measures set forth in Rule 1.13(b) (1) - (3). In addition to the Rules of Professional Conduct, duties of lawyers employed by the government or lawyers in military service may also be defined by statutes and regulations of the specific agency or branch of service.

The duty of the lawyer to take action on the information in the context of a government agency or military organization is limited to fulfilling the requirements of the above stated rule; but, the military or government agency may have additional regulations which are applicable to this situation.

In this case, Lawyer #1 should also consider whether or not the conduct of Lawyer #2 amounts to a violation of requirements of Rule 1.6 "Confidentiality of Information", Rule 4.1(b) "Truthfulness in Statements to Others", and Rule 4.4 "Respect for Rights of Third Persons". This latter rule is particularly important where the conduct of Lawyer #2's client, if repeated, could pose a serious risk of injury or harm to third parties. If so, Lawyer #1 must consider whether or not the conduct raises questions as to Lawyer #2's honesty, trustworthiness or fitness as a lawyer sufficient to be reported pursuant to Rule 8.3 "Reporting Professional Misconduct".