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 91-16
An attorney is a member of county council. The council determines: a) the facilities which the magistrate has available; b) the numbers and compensation of support personnel available to the magistrate; c) whether or not the magistrate is full-time or part-time; and d) the amount of compensation a magistrate receives, if any above the statutory minimum set forth in Section 22-8-40. The county council hears cases when a magistrate contests rulings or actions relating to his classifications, reclassifications or compensation.
Question:
May the attorney or his partner practice before magistrates in that county?
Summary:
The Rules of Professional Conduct do not prohibit the county council member from representing clients in Magistrate Court, but opinions of the State Ethics Commission should be reviewed. In those situations in which the county council member would not be able to practice before the local magistrate, representation by his partner would also not be allowed.
Opinion:
The language of the SC Rules of Professional Conduct does not expressly prohibit a county council member from representing clients in the local Magistrate's Court. If the county council member is disqualified under certain provisions of the SC Rules, the disqualification would be imputed to his partner under Rule 1.10(a). Where the council member is not disqualified under the new rules, a member of his firm would also not be prohibited from appearing in the local Magistrate's Court.
Reference should be made to Rule 1.11(a) which states that a lawyer should not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. Also, Rule 1.11(b) states that a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to material disadvantage of that person. Also, note that the Comment to this rule states that this rule prevents a lawyer from exploiting public office for the advantage of a private client. Further, it states that a lawyer should not be in a position where benefit to a private client might affect performance of the lawyer's professional functions on behalf of public authority. Unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. On the other hand, the Comment does state that the government has a legitimate need to attract qualified lawyers and that the disqualification rule should not impose too severe a deterrent against entering public service.
Finally, the relevant advisory opinions of the State Ethics Commission should also be reviewed. State Ethics Commission Advisory Opinion No. 83-004 advises that city council members should not represent clients before city courts nor represent clients against the city. The logic would probably be the same as far as county members and the local Magistrate's Court.
This opinion does not address whether a magistrate should be disqualified under the Code of Judicial Conduct.