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 90-35
A county councilman who is also an attorney files suit on behalf of a client against an elected or appointed official of the same county, e.g. the sheriff.
Question:
Can the county councilman/attorney file suit on behalf of a client against an elected or appointed official of the same county, e.g. the sheriff?
Summary:
If the councilman is deemed to have a responsibility to the proposed Defendant, and if such responsibility materially limits his loyalty to his client, then Rule 1.7(b) of the Rules of Professional Conduct would permit a county councilman/attorney to file suit on behalf of the client against an appointed or elected official of the same county only if two (2) conditions are met: (1) the attorney reasonably believes that whatever responsibility he may have to the proposed Defendant will not materially detract from the quality of his representation of his client; and (2) the client consents after full disclosure.
Opinion:
The general rule on conflict of interest in this situation is set out in Rule 1.7 (b) of the S.C. Rules of Professional Conduct. In order for Rule 1.7 (b) to be triggered, two pre-conditions must exist. First, as applied herein, the lawyer-councilman must be found to have a responsibility to the proposed defendant; second, if such responsibility exists, it must be one which would materially limit the loyalty of the attorney to the client in the proposed representation. These two pre-conditions are found in the main body of the Rule 1.7(b), which conditions the proscriptive language with the word "if," followed by the above-mentioned pre-conditions.
In analyzing whether or not a councilman (who happens to be an attorney, but is not the "county attorney") is covered by these pre-conditions, there are not sufficient facts set out in the question in order to derive a blanket yes-or-no rule. Some of the factors which would govern this would include, but are not limited to, the following:
(a) Possession of information which would not be available to members of the public; Rule 1.11(b) (b) A long-term relationship of the mutual trust between the councilman and the proposed defendant; (c) Prior representation by the attorney of the proposed defendant or his department. Unless both of the above pre-conditions in the introductory section of Rule 1.7 (b) exist, then the representation would be proper. If these conditions both exist, then a second analysis is required by sub-sections (1) and (2) of Rule 1.7 (b):
1. Does the lawyer "reasonably believe" the representation will not be "adversely affected" by his responsibility to the proposed defendant? If the responsibility to the defendant would materially and adversely affect the representation, then the representation would be objectively unreasonable, and would thus be forbidden by Rule 1.7 (b) (1). Non-material affects would generally be those matters which would not give the lawyer a disadvantage in the conduct of the proposed litigation. The Comment to Rule 1.7 states in relevant part:
The critical questions are likelihood that a conflict will eventuate and if it does, whether it will materially interfere with the lawyer's professional judgment in considering alternatives, or foreclose courses of action that reasonably should be pursued on behalf of the client.
2. The lawyer must also have the information of his client, under Rule 1.7(b). If the lawyer-councilman fulfills both of these latter conditions as set out in sub-sections (1) and (2) of Rule 1.7 (b), representation would be proper even if he were found to have a material responsibility to the public official under the introductory section of Rule 1.7(b). The lawyer should be mindful, however, that his loyalty to his client may be impaired when an attorney cannot consider, recommend, or carry out an appropriate course of action for a client because of other responsibilities.
Rule 1.7(b) is only concerned with loyalty to an actual client; it is not concerned with loyalty to non-clients. The question of responsibilities to non-client (such as public officials) is only raised by Rule 1.7 (b) in relation to how such responsibilities may impair a duty a loyalty to a client. The lawyer would, of course, generally be prohibited from the proposed representation if he had an attorney-client relationship with the public official, as set out in Rule 1.7(a).
This opinion addresses only the ethical obligation of the lawyer to the client and does not consider whether the proposed relationship would violate any other obligations owed by the council member to the county or defendant.