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Ethics Advisory Opinion 91-19

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 91-19

An attorney who is a partner in a small town general practice in County X also serves as the part-time public defender for County X. County X has a public defender corporation for which the attorney is the sole employee. County X supplies one-half the budget for the public defender corporation, and the state provides the balance. The attorney is not treated as a county employee nor a state employee, but is paid quarterly a gross amount providing all public defender services. The attorney does not provide the screening to determine who is public defender eligible, that service being provided by the county 91黑料爆料rk of court.

The attorney, for various reasons, and out of courtesy to other local bar members, does not handle other criminal defense work in County X. The attorney does, however, wish to be able to represent criminal defendants in counties other than County X. The attorney does not believe this is a conflict.

The attorney specifically believes that SC Bar Advisory Opinion 82-26 does not apply. That opinion concludes that an assistant solicitor cannot represent criminal defendants outside his county. The attorney believes that is based upon law enforcement officers working across county lines, and when the solicitor changes sides he would be in a position of having to cross examine one of his witnesses from a previous case. In the above hypothetical, the attorney continues to represent criminal defendants so there is no going from one side of the courtroom to the other.

Summary:
It is no violation of the Rules of Professional Conduct for a public defender in one county to represent criminal defendants in other counties.

Opinion:
There is no apparent conflict of interest between an attorney's position as public defender in one county and his representation of criminal defendants in other counties.

The question presented also refers to SC Bar Advisory Opinion 82-26 which concluded that an assistant solicitor in one county could not represent criminal defendants in another county. That opinion does not apply to the question presented here; however, the committee takes this opportunity to point out that, as a result of the adoption of the Rules of Professional Conduct effective September 1, 1990, there now is nothing in the Rules which automatically prohibits the conduct addressed in Advisory Opinion 82-26, provided it is not in the same judicial circuit. The attorney should be aware, however, that there are specific circumstances in which such representation could result in a violation of the Rules of Professional Conduct. In Advisory Opinion 82-26, the Committee concluded that the assistant solicitor as a public official might have undue influence over the witnesses for the state-usually police officers-or vice versa. Rule 1.11 91黑料爆料arly prevents a lawyer from exploiting public office for the advantage of a private client and Rule 1.7 prevents a lawyer from representing clients with adverse interests. If the attorney reasonably believes that his position as assistant solicitor will not be used for the benefit of a private client (see Rule 1.11) and that his representation of the criminal defense client will not be adversely affected by his responsibilities as assistant solicitor (see Rule 1.7 (b)) then he is free to undertake such representation in other circuits.