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 92-21
There are four lawyers in the public defender's office. There are three co-defendants in a criminal case.
Question:
May each of the defendants be represented by a different lawyer in the same public defender's office?
Summary:
The public defender's office is treated as a law firm for purposes of imputing disqualification. A single public defender ordinarily should not represent more than one co-defendant, and the disqualification would be imputed to other members of the same office.
Opinion:
This Committee has previously opined that a public defender's office is sufficiently like a law firm in character so as to be prohibited from representing co-defendants with conflicting interests. S.C. Bar Adv. Op. 78-02 (1/78). Nothing in the current Rules of Professional Conduct changes that characterization. The definitional section of the Rules defines a firm to include "lawyers employed in a legal services organization." We think that the term "legal services organization" is sufficiently broad to encompass the public defender. Also, the Comment to Rule 1.10 advises that lawyers "employed in the same unit of a legal services organization constitute a law firm." Having concluded that the public defender's office is to be treated as any law firm for purposes of this inquiry, we next examine the restrictions upon representing co-defendants in a criminal matter. As a general rule, a lawyer may not undertake any representation if the interests of the client will be directly adverse to the interests of another client or if the representation may be materially limited by the lawyer's responsibility to another client. Rule 1.7 (a) & (b). The only exception to this prohibition is if the lawyer reasonably believes the representation will not be adversely affected and each client consents after consultation.
The Rules do not, therefore, create an express per se prohibition against representation of multiple criminal defendants. Indeed, Rule 1.8(g) appears to contemplate representation of multiple criminal defendants. However, the Comment to Rule 1.7 advises that "(t)he potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant." S.C. Bar Advisory Opinion 92-21, p.2 If a single lawyer ought to be disqualified from representing more than one criminal defendant in a matter, that disqualification is imputed to all other members of the firm. Rule 1.10(a). Given our earlier discussion regarding the characterization of the public defender's office as a firm for purposes of Rule 1.10, it is our opinion that, while there may be no per se prohibition, ordinarily lawyers in the public defender's office should not represent multiple criminal defendants.