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 93-03
A public defender moves into the solicitor's office to work as a solicitor.
Question:
May the former public defender discuss any of the cases which he worked on as a public defender with any of the attorneys in the solicitor's office? Should the solicitor's office automatically recuse itself if the former public defender, now solicitor, worked on these cases?
Summary:
The former public defender who has actual knowledge of information may not discuss any of the cases which he worked on as a public defender with any of the attorneys in the solicitor's office, except for generally known information about the client.
Where the former public defender, now solicitor, worked on these cases, he should recuse himself form these cases and allow another solicitor to handle the case.
Opinion:
Rule 1.9, Conflict of Interest, Former Client, addresses this question.
(a) A lawyer who has formally represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interest are materially adverse to the interests of the former client unless the former client consents after consultation.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:
(1) whose interests are materially adverse to the person; and (2) about whom the lawyer has acquired information by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client consents after consultation.
(c) A lawyer who has formerly represented a client in a matter ... shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client ... or (2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.
According to the comments of Rule 1.9, when a lawyer (e.g., a public defender) has been directly involved in a specific transaction, subsequent representation of other clients, with materially adverse interests (e.g., the State) is 91黑料爆料arly prohibited. Further, the underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.
A lawyer has an obligation to decline subsequent representations involving positions adverse to a former client arising in substantially related matters. This obligation requires abstention from adverse representation by the individual lawyer involved, but does not properly entail abstention of other lawyers through imputed disqualification. Thus, if a lawyer left the public defender's office for the solicitor's office, the new affiliation would not preclude each office from continuing to represent clients with adverse interests in the came or related matters, so long as the conditions of paragraphs (b) and (c) of Rule 1.9 concerning confidentiality have been met.
Information acquired by the lawyer (public defender) in the course of representing a client may subsequently not be used or revealed by the lawyer to the disadvantage of the client.
Finally, disqualification from subsequent representation is for the protection of former clients and can be waived by them. A waiver is effective only if there is disclosure of the circumstances, including the lawyer's role in behalf of the new client (e.g., the State).
Therefore, the public defender, who has actual knowledge of information, may not discuss any of the cases which he worked on as a public defender with any of the attorneys in the solicitor's office, except for generally known information about the client. See also State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982) (under the prior Code of Professional Responsibility, a former employee of the public defender was permitted to handle a matter in later employment with the solicitor where confidential information was not disclosed).
Where the former public defender, now solicitor, worked on these cases, he should recuse himself form these cases and allow another solicitor to handle the case.