Must a former South Carolina solicitor get the State's consent before representing a criminal defendant who was indicted during the solicitor's term, even if the solicitor's role in that case was minimal?

Plain-English summary

A former solicitor was approached by people who had been indicted during his tenure. In some cases his actual involvement was minimal because an experienced assistant solicitor handled the matter, but every indictment handed down during his term had been approved by him, sometimes by signature stamp and sometimes in person. The question was whether he needed the State's informed consent before representing such a defendant.

The committee concluded a conflict arises under Rule 1.11, which governs when a former government official may take private employment related to public work. A conflict exists where the official participated "personally and substantially" in the matter. Reviewing case law, the committee noted decisions are not uniform but most hold that substantive supervisory authority over the work involving the particular client is sufficiently personal and substantial. Because South Carolina assistant solicitors serve at the pleasure of the solicitor and indictments issue under his constitutional authority, the committee concluded even minimal case-specific involvement could qualify as personal and substantial participation creating a Rule 1.11 conflict.

The committee added that Rule 1.11 permits such a conflict to be waived by the "appropriate government agency," a term the rule does not define. It observed that the appropriate agency could be argued to be the currently serving solicitor or the South Carolina Attorney General, citing Ex Parte McLeod for the Attorney General's constitutional duty to supervise circuit solicitors. A footnote clarified that the committee assumed the pending charge was the same one for which the person was indicted during the former solicitor's term.

Currency note

This opinion was issued in 1997, 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 Treat this page as historical context, not current guidance.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: Does a former solicitor have a conflict representing a defendant indicted during his term?

A: The committee concluded yes. Because every indictment during his term was approved under his supervision, a Rule 1.11 conflict arises, even where his involvement in the specific case was minimal.

Q: Why does minimal involvement still create a conflict?

A: The committee reasoned that assistant solicitors serve at the solicitor's pleasure and indictments issue under his constitutional authority, so supervisory responsibility could be construed as "personal and substantial" participation under Rule 1.11.

Q: Can the conflict be waived?

A: Yes. The committee stated Rule 1.11 permits waiver by the "appropriate government agency," which it suggested could be the currently serving solicitor or the South Carolina Attorney General.

Background and rules framework

The opinion applied South Carolina RPC 1.11 (successive government and private employment; conflicts arising from a former government lawyer's personal and substantial participation in a matter, with a waiver provision for the appropriate government agency), corresponding to the like-numbered Model Rule. The committee read it against South Carolina constitutional and statutory provisions establishing the solicitor's supervisory authority over assistant solicitors.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.11 / Model Rule 1.11: special conflicts for former and current government officers and employees.

Statutes:

• S.C. Code Ann. §§ 1-7-405, 1-7-406: assistant solicitors serve at the solicitor's pleasure.
• S.C. Const. art. V, § 24: the solicitor's authority over prosecutions in the circuit.

Cases:

• United States v. Smith, 995 F.2d 662 (7th Cir. 1993): supervisory involvement as personal and substantial participation.
• State v. Romero, 578 N.E.2d 673 (Ind. 1991): former deputy prosecutor barred from representing defendant on retrial.
• Security Investor Protection Corp. v. Vigman, 587 F. Supp. 1358 (C.D. Cal. 1984): signing a complaint as personal and substantial responsibility.
• Ex Parte McLeod, 272 S.C. 373, 252 S.E.2d 126 (1979): the Attorney General's duty to supervise circuit solicitors.

See also

• SC Bar Ethics Op. 97-03: Lawyer as Intermediary
• SC Bar Ethics Op. 07-02: Hiring a Prosecutor's Staffer

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-12/

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 97-12

Former solicitor has been approached by persons who were indicted for criminal offenses during his tenure as solicitor1. In some cases, the solicitor's actual involvement in reviewing a particular case was minimal, such as where an assistant solicitor who was handling the matter was sufficiently experienced that the solicitor largely deferred to the assistant solicitor. However, each indictment handed down during the solicitor's term was approved by the solicitor, sometimes with the use of a signature stamp, but other times in person. Would the former solicitor be required to obtain the informed consent of his former employer before representing a criminal defendant who was indicted during the former solicitor's term in office?

Summary:
Because all indictments handed down during the former solicitor's term were done under his supervision, a conflict under Rule 1.11 arises. This conflict, however, can be waived by the State.

Discussion:
A solicitor is a government official within the meaning of Rule 1.11, which governs the circumstances under which a former government official can accept private employment which is related to work done in his former public capacity. The rule provides that a conflict arises when the former government official participates "personally and substantially" in the public activities for which private representation is subsequently sought. Rule 1.11(a).

Numerous courts have opined as to whether mere supervision of another's work constitutes "personal and substantial" -participation in a matter which is handled by a public agency. The decisions are not uniform, however. Most decisions conclude that substantive supervisory authority over the work involving the particular client is sufficiently "personal and substantial" -to cause a Rule 1.11 situation to arise. United States v. Smith, 995 F.2d 662 (7th Cir. 1993) (disqualification of drug defendant's lawyer on the ground that he had been substantially involved with government investigation and had received confidential information; lawyer had been immediate supervisor of lawyer in charge of conspiracy investigation intertwined with investigation and prosecution of defendant); State v. Romero, 578 N.E.2d 673 (Ind. 1991)(former deputy prosecutor on criminal defendant's original prosecution precluded from representing him on retrial; consultation on significant evidentiary issues while prosecutor constituted personal and substantial involvement); Security Investor Protection Corp. v. Vigman, 587 F.Supp. 1358 (C.D.Cal. 1984)(where SEC regional administrator signed complaint and trial brief, he assumed, as a matter of law, the "personal and substantial" responsibility of ensuring that there existed good ground to support the SEC's case.). But see, Committee on Professional Ethics of the State Bar of Nassau County, Op.No. 95--2 (1993)(lawyer who served as assistant municipal attorney and who only had "minor, general oversight involvement" with tax matters may accept assignment to such matters in subsequent employment with a law firm if municipality consents).

It would appear that, even where the former solicitor's involvement in a particular case was minor because the matter was primarily handled by an assistant solicitor, the prosecution was still handled under his supervision, because each of the assistant solicitors serve at the pleasure of the solicitor and, inferentially, under his supervision and control. S.C.Code Ann. Sec.1-7-405 and 406. That could be construed to qualify as "personal and substantial" involvement sufficient to cause a conflict to arise under Rule 1.11. He is the constitutional officer under whose authority all prosecutions in the circuit are undertaken. Article V, Section 24, South Carolina Constitution.

Rule 1.11 contains a provision that permits a conflict of this nature to be waived by "the appropriate government agency". The rule does not define the term appropriate government agency. In this case it could be argued that the appropriate government agency would be the current serving solicitor or the South Carolina Attorney General. See Ex Parte McLeod, 272 S.C. 373, 252 S.E.2d 126 (1979)(the Attorney General has the constitutional obligation to supervise the activities of circuit solicitors).

1It is unclear from the facts presented whether the actual criminal offense which is pending at this time is the same criminal offense that was indicted during the former solicitor's term, i.e. the committee recognizes that the question could relate to a defendant who was indicted under the solicitor's term for a prior offense, and who now seeks the former solicitor's representation on a subsequent charge. For purposes of this opinion, the committee assumes that the criminal charge which is now pending is the same for which the person was indicted during the former solicitor's terms in office.