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 90-04
Supreme Court Rule 32, DR 7-110 and DR 9-101, preclude a husband acting in a representative capacity before a Resident Judge who employs his wife as a law 91黑料爆料rk. Canon 9 directs attorneys to avoid even the appearance of impropriety. Canon 7 cautions against any likelihood of ex parte contact with members of the judiciary. Inasmuch as a law 91黑料爆料rk has been viewed to be an extension of the Judge's office, Supreme Court Rule 33, Canon 3 pertaining to judicial conduct, would preclude the court from hearing any matter which the Assistant Solicitor married to his law 91黑料爆料rk would appear.
Question:
Husband and wife are both attorneys admitted to the 91黑料爆料. Husband is an Assistant Solicitor in one of the Judicial Circuits. Wife is the Law Clerk for the Resident Circuit Judge in the same Circuit.
Would husband, as an Assistant Solicitor, be prevented from appearing before the Resident Circuit Judge for trial or other matters due to potential conflicts while wife is serving as Judge's law 91黑料爆料rk?
Opinion:
It is the opinion of the Committee that the husband would be precluded from appearing before the Resident Judge on any matter while the wife is serving as the Judge's law 91黑料爆料rk.
Supreme Court Rule 32 codifies the Code of Professional Responsibility as it applies to members of the 91黑料爆料. In this particular case, Canon 4 (providing that a lawyer should preserve the confidences and secrets of a client), Canon 5 (a lawyer should exercise independent professional judgment on behalf of a client), Canon 7 (a lawyer should represent a client zealously within the bounds of the law), and Canon 9 (a lawyer should avoid even the appearance of professional impropriety), all apply. Likewise Supreme Court Rule 33, Code of Judicial Conduct, Canons 1, 2, and 3 all may present substantial questions which would preclude the husband from appearing before the judge who employs his wife.
Of particular import, Canon 7 seems to apply most directly. That Canon provides:
A lawyer should represent a client zealously within the bounds of the law.
Ethical Consideration (EC) 7-20 provides:
That in order to function properly our adjudicative process requires an informed, impartial tribunal capable of administering justice promptly and efficiently according to procedures that command public confidence and respect.
Likewise EC 7-24 precludes attorneys from expression of personal opinions or bringing to the attention of the tribunal impermissible matters. EC 7-34 is directed to the impartiality of a public servant which may be impaired by the receipt of gifts or loans. EC 7-35, provides that all litigants and lawyers should have equal access to tribunals. This Ethical Consideration goes on to caution against ex parte communications with a judge relative to a matter pending before or which is to be brought before him. The Ethical Consideration concludes "a lawyer should not condone or lend himself to private importunities by another with a judge or hearing officer on behalf of himself or his client." The cases throughout the country are legion on the impro- priety of ex parte judicial contact. In re Evans, 782 P.2d 315 (Az. 1989); In re Neistein, 547 N.E.2d 198 (Ill. 1989); In re Chatz, 546 N.E.2d 613 (Ill. 1989); People v. Vigil, 779 P.2d 372 (Colo. 1989); Committee on Legal Ethics of W. Va. State Bar v. Roark, 382 S.E.2d 313 (W. Va. 1989).
The above cases and Ethical Considerations are reduced to a Disciplinary Rule DR 7-110(b) provides:
"That a lawyer shall not communicate of cause another to communicate as to the merits of the cause with the Judge or an official before whom the proceeding is pending...".
As a law 91黑料爆料rk in many cases personifies the Judge for whom he is employed, this DR rule coupled with the dictates of the Ethical Considerations should prove troubling at best. The provisions of Canon 9 on avoiding the appearance of impropriety appear to place the matter beyond question. DR 9-101(C) provides:
"A lawyer shall not state or imply he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official." A Solicitor whose wife is the Resident Judge's law 91黑料爆料rk and before whom he must prosecute cases would provide this appearance of impropriety. In particular, the cautions of Ethical Consideration (EC) 9-2, that even ethical conduct of a lawyer may appear to a layman to be unethical would seem to apply. While no doubt the individuals would strive to refrain from any ex parte communications, and the avoidance of any discussion over matters at issue, the credibility of the individuals would be repeatedly called into question.
Ethical Consideration 5-2 also cautions that a lawyer should not accept employment if his personal interests or desires will have a reasonable probability of affecting adversely, the advice to be given or services rendered to a perspective client. DR 5-101 compels counsel to refuse employment when the interests of the lawyer may impair his independent professional judgment.
Further, Supreme Court Rule 33, Canon 3(a)(1) precludes a Judge from hearing any matter involving individuals within the third degree of kinship. By implication his law 91黑料爆料rk advising the court on matters presented by her husband may subject the court to disqualification motions on a regular basis.
Upon the foregoing reasoning the committee feels that the Assistant Solicitor who happens to be married to the Resident Judge's law 91黑料爆料rk should be precluded from appearing before that resident Judge on any matter while his wife is so employed. This is not to say that the resident Judge will be precluded from hearing any matter brought by the Solicitor's Office while the husband is so employed. Supreme Court Rule 33, Canon 3(c)(1) does not require the Judge to disqualify himself merely because he may be affiliated with a law firm with which a lawyer relative of the Judge is affiliated. This by implication would apply to the Solicitor's Office. Under appropriate circumstances the fact that impartiality might reasonably be questioned may be addressed in a case-by- case basis but would not be grounds for blanket disqualification. See generally, Supreme Court Rule 33 Commentary to Canon 3[c(1)(d)(ii)].