Can a chief public defender also serve as counsel to a school district, and represent juveniles facing both school discipline and Family Court?

Plain-English summary

An attorney served both as counsel to a county school district and its board and as chief public defender. Juveniles sometimes faced both school discipline and Family Court proceedings under the Children's Code. The committee addressed whether the dual role was proper, whether disqualification of the chief public defender extended to the rest of the office, and whether the chief public defender could represent a juvenile who wanted to plead guilty.

On the first question, the committee noted (without opining on the statutory question under S.C. Code Ann. § 17-3-60(e)) that, assuming the school-district employment complies with law, the Rules contain no per se prohibition on the dual role, and conflicts can be handled case by case. It distinguished Opinion 85-21 (where a part-time public defender would have defended clients prosecuted by his other employer) because school-district proceedings are independent of Family Court matters.

On the second question, the committee concluded that when the chief public defender is disqualified, all attorneys in the office are disqualified, because under Rule 1.10(a) a public defender's office is a "firm" (per Opinion 92-21), so one lawyer's conflict is imputed to all. On the third, the committee applied Rule 1.7(b) and its "disinterested lawyer" comment: a juvenile deciding whether to plead guilty to school-code charges and accept Family Court disposition needs candid advice on the consequences, and a disinterested lawyer would conclude the juvenile should not be represented by a lawyer who also represents the school district, because that lawyer could not give candid advice. The committee concluded it is a conflict for the chief public defender (and, by imputation, the office) to undertake that representation, and the office should ask the Family Court to appoint outside counsel.

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 Treat this page as historical context, not current guidance.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 one lawyer be both chief public defender and school district counsel?

A: The committee found no per se prohibition, assuming the employment complies with law, with conflicts handled case by case.

Q: If the chief public defender is conflicted out, can a colleague in the office take the case?

A: No. The committee concluded that under Rule 1.10(a) the public defender's office is a "firm," so the disqualification is imputed to every attorney in the office.

Q: Can the public defender represent a juvenile who wants to plead guilty?

A: The committee concluded no. Under Rule 1.7(b), the lawyer who also represents the school district cannot give the candid advice the juvenile is entitled to, so the office should seek appointed counsel.

Background and rules framework

The opinion applied Rule 1.7(b) (representation materially limited by responsibilities to another client or third person) and Rule 1.10(a) (imputed disqualification within a firm, including a public defender's office), each corresponding to the like-numbered Model Rule, and noted the statutory backdrop of S.C. Code Ann. § 17-3-60(e).

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7(b) / Model Rule 1.7: representation materially limited by other responsibilities.
• South Carolina RPC 1.10(a) / Model Rule 1.10: imputed disqualification within a firm.

Statutes:

• S.C. Code Ann. § 17-3-60(e) (1985): private practice limits on public defenders.

Other opinions cited:

• SC Bar Adv. Ops. 85-21, 92-21: part-time public defender conflicts; public defender office as a "firm."

See also

• SC Bar Ethics Op. 95-08: Municipal Lawyer in Zoning Appeals
• SC Bar Ethics Op. 96-15: Legal Services Referral Conflicts

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-95-10/

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 95-10

An attorney serves as legal counsel for a local countywide school district and for its board of directors. The attorney also serves as chief public defender in the county.

From time to time cases arise in which a juvenile may be subject to discipline by the school district and also subject to proceedings before the Family Court under the Children's Code. The chief public defender will not personally handle any contested case in which a juvenile is subject both to discipline by the school district and to proceedings in Family Court. The chief public defender proposes to have a staff attorney in the office of the public defender handle such cases. In any case in which other attorneys in the office of public defender are disqualified from representing the juvenile because of a conflict of interest, the office will request the Family Court to appoint outside counsel to represent the juvenile.

In some cases juveniles are willing to admit the charges, and to accept punishment for violation of the school disciplinary code and disposition by the Family Court. In such cases the chief public defender proposes to represent the juvenile on the ground that no conflict of interest exists.

Questions:
(1) Is it ethically proper for an attorney to serve both as chief public defender and as counsel for a school district?
(2) If the chief public defender is disqualified from representing a juvenile in Family Court because the juvenile is subject to discipline by the school district, may another attorney in the office of the public defender represent the juvenile?
(3) Is it ethically proper for the chief public defender to represent a juvenile when the juvenile admits the charges and is willing to plead guilty to violation of the school disciplinary code and to accept such disposition as the Family Court deems appropriate?

Summary:
(1) The Committee does not render opinions on questions of law, but the Committee notes the possible application of S.C.

Code Ann. Section 17-3-60(e) (dealing with private practice by part-time public defenders). Assuming that the chief public defender's employment by the school district is in compliance with law, the Committee finds no per se prohibition in the Rules of Professional Conduct of an attorney serving in this dual capacity. Conflicts of interest arising from this dual role can be handled on a case-by-case basis.

(2) If the chief public defender is disqualified from representing a juvenile in a Family Court case because the juvenile is also subject to school discipline, all attorneys in the public defender's office are also disqualified.

(3) It constitutes a conflict of interest for the chief public defender to undertake representation of a juvenile who wishes to plead guilty to all charges because the public defender cannot give the candid legal advice that the juvenile is entitled to receive.

Opinion:
(1) Is it ethically proper for an attorney to serve both as chief public defender and as counsel for a school district?

While the Committee does not render opinions on legal issues, the Committee notes the following provision of South Carolina law:

The public defender and assistant public defenders shall give priority to their duties under the provisions of this chapter, and may engage in private practice of law only if permitted to do so by the board herein named and only to the extent that it will not interfere with, or prevent performance of, their duties as public defenders or assistant public defenders; provided, public defenders and assistant public defenders shall not represent persons charged with a criminal offense under the laws of this State in their private practice. S.C. Code Ann. Section 17-3-60 (e) (1985).

Assuming that the chief public defender's employment by the school district is in compliance with law, the Committee finds no per se prohibition in the Rules of Professional Conduct of an attorney serving in this dual capacity. As discussed below, the simultaneous role of chief public defender and school district counsel may create conflicts of interest that require disqualification of the public defender's office from representing a juvenile. The Committee concludes, however, that such conflicts can be handled on a case-by-case basis rather than by a per se bar on dual employment.

In Advisory Opinion 85-21 the Committee decided that a part- time public defender was precluded from entering into contracts with the solicitor's office to prosecute cases on behalf of DSS. That situation is distinguishable, however, because in that fact situation the public defender would be placed in the position of defending clients who were being prosecuted by his other employer, the solicitor. No such direct conflict exists here since the school district proceedings are independent from Family Court matters.

(2) If the chief public defender is disqualified from representing a juvenile in Family Court because the juvenile is subject to discipline by the school district, may another attorney in the office of the public defender represent the juvenile?

If the chief public defender is disqualified from representing a juvenile in a Family Court case because the juvenile is also subject to school discipline, all attorneys in the public defender's office are also disqualified. S.C. Rule of Professional Conduct 1.10(a) provides as follows: "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), 1.9 or 2.2." The comment to the Rule states: "[T]he term 'firm' includes lawyers in a private firm, and lawyers in the legal department of a corporation or other organization, or in a legal services organization." In Advisory Opinion 92-21 this Committee decided that a public defender is a "firm" within the meaning of Rule 1.10.

Accordingly, when the chief public defender is disqualified from handling a matter, all other attorneys in the office are also disqualified.

(3) Is it ethically proper for the chief public defender to represent a juvenile when the juvenile admits the charges and is willing to plead guilty to violation of the school disciplinary code and to accept such disposition as the Family Court deems appropriate?

Rule 1.7(b) of the South Carolina Rules of Professional Conduct provides as follows: "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 or to a third person, or by the lawyer's own interests, unless: (1) The lawyer reasonably believes the representation will not be adversely affected; and (2) The client consents after consultation." The comment to this rule states: "When a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent." Before deciding whether to plead guilty to charges of violation of a school disciplinary code and to accept disposition by the Family Court, a juvenile should receive candid legal advice regarding the consequences, advantages, and disadvantages of such a decision. The Committee concludes that a "disinterested lawyer" would decide that a juvenile should not agree to be represented by a public defender who also represents the school district in disciplinary matters because the public defender could not provide the candid legal advice that a juvenile, who is facing both school discipline and Family Court proceedings, is entitled to receive. Accordingly, it constitutes a conflict of interest for the chief public defender to undertake representation of a juvenile who expresses the wish to plead guilty to all charges. As noted above, this disqualification also applies to all other lawyers in the public defender's office. When such a situation arises, the public defender should ask the Family Court to appoint counsel to represent the juvenile.