Can a former prosecutor now in private practice represent crime victims in civil suits against defendants he was prosecuting in office?

Plain-English summary

An attorney left a solicitor's office for private practice. Two cases, in which arrests had been made while he was in office and which remained pending, involved victims who now asked him to represent them in civil suits against the alleged perpetrators. While in office, he had not entered into any negotiations or agreements binding the State.

The committee applied Rule 1.11, whose primary concern is to prevent a lawyer from exploiting public office for a private client's advantage. Rule 1.11(a) provides that, absent express legal permission, a lawyer may 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, with "matter" defined in Rule 1.11(d). The committee noted the restriction reaches beyond direct conflicts to any "matter" in which the lawyer personally participated.

Citing the Comment's concern that unfair advantage could accrue to a private client through access to confidential government information about an adversary, the committee added that Rule 1.11(b) may also apply: a lawyer with confidential government information about a person, acquired as a public officer, may not represent a private client whose interests are adverse to that person in a matter where the information could be used to that person's material disadvantage. The committee concluded the former solicitor may represent the victims only if he consults the solicitor's office and obtains consent, and may be prohibited regardless if he had access to confidential information creating an unfair advantage.

Currency note

This opinion was issued in 1995, 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 Treat this page as historical context, not current guidance.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 former prosecutor sue a defendant he prosecuted, on behalf of a private client?

A: The committee concluded that under Rule 1.11(a) he may not, in a matter in which he participated personally and substantially as a prosecutor, unless the solicitor's office consents after consultation.

Q: Does consent from the prosecutor's office fully clear the conflict?

A: Not necessarily. The committee said Rule 1.11(b) may still bar the representation if the lawyer holds confidential government information usable to the defendant's material disadvantage.

Q: What does "matter" cover here?

A: The committee noted the restriction reaches any matter in which the lawyer personally and substantially participated, as defined in Rule 1.11(d), not just direct conflicts.

Background and rules framework

The opinion applied Rule 1.11 (successive government and private employment), including subsection (a) (personal and substantial participation), subsection (b) (confidential government information), and subsection (d) (definition of "matter"), corresponding to Model Rule 1.11 as the rule stood in 1995.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.11(a), (b), (d) / Model Rule 1.11: successive government and private employment.

See also

• SC Bar Ethics Op. 95-10: Public Defender and School Counsel
• SC Bar Ethics Op. 95-28: Lateral Hire and Imputed Conflicts

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-95-05/

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 95-05

An attorney who has worked in a solicitor's office has recently left to go into private practice. At issue are two cases in which the arrests were made while he was in office. While in office, the attorney did not enter into any negotiations or agreements which would bind the State of South Carolina. The cases remain pending. The victims of these two offenses now request that this attorney represent them in civil suit against the alleged perpetrators.

Question:
May this attorney who was formerly a solicitor now represent victims in civil suits against the alleged perpetrators whom he had been prosecuting?

Summary:
The former solicitor may not file suit for a private client against an alleged perpetrator in the county where he served if he participated personally and substantially in a matter concerning the client and the alleged perpetrator while a solicitor unless the solicitor's office consents after consultation. Further, he may be barred from this representation because of information to which he had access.

Opinion:
Rule 1.11 of the Rules of Professional Conduct applies to this situation. A primary concern of this rule is to prevent a lawyer from exploiting public office for the advantage of a private client.

Rule 1.11(a) states "Except as law may otherwise expressly permit, 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." It is noteworthy that the restriction of this rule is beyond direct conflicts of interest. It prohibits the attorney from private representation in connection with "a matter" in which there has been personal participation by the lawyer. Rule 1.11(d) defines "matter".

The comment to the rule is enlightening. It states that where the successive clients are a public agency and a private client, a risk exists that power vested in public authority might be used for the special benefit of the private client. The comment points out that "unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service." Thus, Rule 1.11(b) may also apply. This rule states that "a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person." Therefore, the former solicitor may represent the victims in a civil suit against the alleged perpetrators if he has consulted with the solicitor's office and obtained consent. On the other hand, if he had access to confidential information which could lead to an unfair advantage, he may be prohibited from the representation.