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鈥橲 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 03-02
Rule 1.9(a) of the South Carolina Rules of Professional Conduct provides that 鈥淸a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person鈥檚 interests are materially adverse to the interests of the former client unless the former client consents after consultation.鈥� Rule 1.9, S.C. App. Ct. R. 407 (emphasis added). Given the facts of this inquiry, the former estate planning representation appears to be wholly unrelated to Army Officer鈥檚 present criminal charges and Attorney did not gain any confidential information during the prior representation. Therefore, no conflict of interest appears to exist and Attorney may as the prosecuting attorney in the Army鈥檚 criminal case against Army Officer.
Although no conflict of interest appears to exist in the present case, Attorney should be mindful that, if any confidential information he learned during the estate planning representation should become necessary for the prosecution of Army Officer, Attorney should withdraw as the prosecuting attorney in the criminal case. Rule 1.9(c), S.C. App. Ct. R. 407.
This opinion is consistent with past opinions of the Committee. See Ethics Advisory Opinion 00-05. In Opinion 00-05, the Committee found that no conflict of interest existed, pursuant to Rule 1.9, where an attorney sought to represent a wife during her divorce. The attorney had previously represented both the husband and wife during their residential mortgage closing and later refinancing of their home. Because the matters were not substantially related and the attorney was not privy to any confidential information that could be used in the divorce, no conflict of interest existed. But see Ethics Advisory Opinion 02-01 (stating that attorney, who was involved as a solicitor in an arson case in which client was a criminal defendant, may not represent client in subsequent civil suit against an insurance company because the civil suit was substantially related to the underlying criminal action and the attorney previously had access to all confidential information in the criminal case).
Therefore, under the facts presented to the Committee, there does not appear to be a conflict of interest and Attorney may act as a prosecutor in the Army鈥檚 criminal case against Army Officer.