Can a law firm whose lawyers volunteer to prosecute in a solicitor's office also defend clients being prosecuted by that same office?

Plain-English summary

Members of a law firm assisted, on an unpaid basis, in prosecuting misdemeanor and minor felony cases in a circuit solicitor's office. The firm asked whether it could defend a client being prosecuted by that same office if no firm member would prosecute that client, whether screening the firm's lawyers from the case would help, and whether consent from both the solicitor and the client would cure the problem.

On the first question, the committee concluded no. Because firm members participate on an ongoing basis as prosecutors in the solicitor's office, the situation is governed by Rule 1.7, which bars simultaneous representation of clients with adverse interests; representing the State in that office is directly adverse to defending a person prosecuted by it. That the firm members are unpaid does not affect the conflict. Reframed from the solicitor's-staff perspective, neither the solicitor nor any assistant solicitor could undertake such a defense, and firm members serving in the office may not do what part-time assistant solicitors may not, with imputed disqualification under Rule 1.10 reaching the rest of the firm. The committee read its earlier Opinion 83-29 as consistent with S.C. Code § 1-7-370, because the opinion bars representation only within the judicial circuit where the solicitor serves.

On the second question, screening does not help. The committee explained that Rule 1.11, the less restrictive rule allowing screening and notice for conflicts arising from successive government and private employment, does not apply here, because the firm's lawyers are in an ongoing program of service in the office; Rule 1.7 governs and contains no screening provision. On the third, the firm should not even request consent. Under Rule 1.7's comment, when a disinterested lawyer would conclude the client should not agree to the representation, the lawyer cannot properly ask for consent; the committee read its silence in Opinion 83-29 about waiver in light of the special circumstances of the solicitor's office, which led it to bar every lawyer involved in the prosecutorial process, and those associated with them, from representing criminal defendants anywhere in the circuit.

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: Can a firm that volunteer-prosecutes also defend clients prosecuted by that office?

A: The committee concluded no. Under Rule 1.7 the roles are directly adverse, and Rule 1.10 imputes the disqualification to the whole firm.

Q: Does screening the firm's lawyers solve it?

A: No. The committee said Rule 1.11's screening option does not apply to an ongoing prosecutorial role; Rule 1.7 governs and has no screening provision.

Q: Can the solicitor and client consent to waive the conflict?

A: No. The committee said the firm should not even request consent, because a disinterested lawyer would conclude the client should not agree, given the circumstances of the solicitor's office.

Background and rules framework

The opinion applied Rule 1.7 (concurrent conflicts; directly adverse representation), Rule 1.10 (imputed disqualification within a firm), and Rule 1.11 (successive government and private employment, with its screening option held inapplicable here), each corresponding to the like-numbered Model Rule, against the backdrop of S.C. Code § 1-7-370 and the committee's Opinion 83-29.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7 / Model Rule 1.7: concurrent conflicts of interest.
• South Carolina RPC 1.10 / Model Rule 1.10: imputed disqualification within a firm.
• South Carolina RPC 1.11 / Model Rule 1.11: successive government and private employment.

Statutes:

• S.C. Code § 1-7-370: when solicitors may defend persons in criminal courts.

Other opinions cited:

• SC Bar Adv. Ops. 83-29, 91-38: conflicts arising from service in a solicitor's office.

See also

• SC Bar Ethics Op. 94-31: Solicitor's Firm, Other Circuit
• SC Bar Ethics Op. 95-05: Ex-Solicitor Suing the Defendant

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-32/

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 94-32

1. If members of a law firm from time to time assist in the prosecution of cases in a circuit solicitor's office on an unpaid basis, prosecuting only misdemeanor and minor felony cases, is it ethical for members of the law firm to undertake the criminal defense of a client who is being prosecuted by the same circuit solicitor's office, if there is no possibility that members of the firm will participate in the prosecution of the client?

2. Is it ethical if members of the law firm are screened off from receiving information regarding the prosecution or defense of the client's case?

3. Is it ethical if both the circuit solicitor and the client consent to the representation after full disclosure?

Summary:
1. No. The fact that no members of the law firm will participate in the prosecution of the criminal defendant is counterbalanced by the fact that members of the law firm participate in an ongoing program of prosecuting cases in the circuit solicitor's office. Representation of the state in the solicitor's office is directly adverse to representation of a person under prosecution by the state in the same solicitor's office.

2. No. Members of the law firm may not represent the client even if the firm's lawyers are all screened off from information in the solicitor's office about the client, because members of the law firm currently serve in the prosecutorial program in the solicitor's office.

3. No. A member of the inquirer's law firm should not request consent of the parties, nor should any member of the firm represent a person under prosecution in the solicitor's office where members of the firm currently serve because of circumstances arising from the nature of the prosecutorial role.

Opinion:
1. Because the inquirer states that the law firm participates in an ongoing basis in which firm members prosecute criminal cases in the solicitor's office, the situation is governed by Rule 1.7, which bars simultaneous representation of clients with adverse interests. The inquirer's question must be addressed from the standpoint of what is proper or improper conduct on the part of a member of the circuit solicitor's staff. See Advisory Opinion 83-29. The fact that members of the law firm receive no pay for assisting the circuit solicitor in the prosecution of cases does not affect the question of whether an impermissible conflict exists. See Advisory Opinion 91-38. To reformulate the facts from the standpoint of the circuit solicitor's staff, it is obvious that neither the solicitor nor any assistant solicitor in the circuit could undertake the criminal defense of a client under prosecution in the solicitor's office. Members of the law firm serving in the solicitor's office may not do what other part-time assistant solicitors may not do. Nor because of imputed disqualification (Rule 1.10) may other members of the firm do what the part-time assistant solicitor may not do.

The inquirer cites SC Code Section 1-7-370 which states "The solicitors may defend any persons brought to trial before any criminal courts of this state when their duty shall not require them to prosecute such persons and their assistance shall not be required against such persons by the Governor or Attorney General." The inquirer further observes that members of the law firm are limited to the prosecution of misdemeanor cases or felony cases that carry a penalty of five years or less, and states that there is no possibility that the firm's lawyers will be called upon to prosecute the prospective client.

While it is not within the purview of the committee to interpret questions of law, the committee sees no conflict between Advisory Opinion 83-29 and the cited section of the SC Code, because the advisory opinion bars representation only within the judicial circuit where the solicitor is employed, i.e., within the courts where the solicitor has the duty to prosecute. Taken together, the statute and the opinion establish what is respectively, acceptable and non-acceptable conduct for lawyers serving in the solicitor's office.

2. Members of the law firm may not represent the client even if the firm's lawyers are screened from information in the solicitor's office about the client. The participation of the law firm in an ongoing program of service in the solicitor's office precludes application of Rule 1.11 which governs conflicts arising from successive government and private employment. This rule is less restrictive than the already mentioned Rule 1.7 in the interest of not unduly limiting the availability of qualified lawyers for public service. The rule provides that "...a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation." The rule further provides that no member of the lawyer's firm may undertake such representation unless the disqualified lawyer is screened from any participation in the matter and the government agency is given notice. This provision for screening and notice does not appear in Rule 1.7, which governs the inquirer's situation. Even in the less restrictive context of Rule 1.11, the comment cautions lawyers representing public agencies and private clients with regard to the risk that the power or discretion vested in public authority might be used for the special benefit of the private client.

3. A member of the inquirer's law firm should not request consent of the parties. Rule 1.7 permits a lawyer to represent a client with interests directly adverse to another client, if "the lawyer reasonably believes the representation will not adversely affect the relationship with the other client" and the client consents. The comment to the rule establishes the critical basis for requesting client consent, when it notes that "when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer cannot properly ask for such agreement or provide representation." This committee's earlier opinion 83-29 was silent about whether the conflict might be waived by full disclosure and mutual consent. The committee's silence is to be interpreted in the light of the special circumstances of the solicitor's office, which led the committee to bar every lawyer involved in the prosecutorial process, and all lawyers associated with them, whether publicly or privately, from representing criminal defendants in any court within the judicial circuit. By extending this prohibition to civil action brought by criminal defendants, the committee underscored the compelling nature of circumstances surrounding service in the solicitor's office.