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 93-22
An attorney is retained by a county to prosecute criminal cases in the magistrate courts of the county. The attorney is not an employee of the solicitor's office. His duties will include prosecuting cases made by the South Carolina Highway Patrol and county sheriff's department. He will only prosecute cases which originate in the unincorporated areas of the county and will not prosecute any cases made by city police officers.
Question:
To what extent, if any, is the attorney limited in representing criminal defendants in the municipal courts located in that county?
Summary:
Charges prosecuted in the municipal court would only be brought by municipal police officers. Therefore, the attorney would be allowed to defend clients in the municipal courts of his county.
Opinion:
South Carolina Rule of Professional Conduct 1.7(a) provides, "A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation." The factual summary states that the attorney is retained by the county. Therefore, an attorney-client relationship exists between the attorney and the county. It would be a conflict of interest for the attorney to represent criminal defendants arrested by a law enforcement officer of the county unless he complies with the exceptions to Rule 1.7. Routinely, this would be employees of the local sheriff's department. Although charges brought by employees of the highway patrol would not as 91黑料爆料arly carry the same conflict, a lawyer should avoid representation of a client where there would be a violation of Rule 1.7.
Charges prosecuted in the municipal court would only be brought by municipal police officers. Therefore, the attorney would be allowed to defend clients in the municipal courts of his county.
Rule 1.7(b) provides, "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyers own interests, unless (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents." Situations may arise where the attorney should decline employment. Some potential conflicts would be: (A) during his representation of a defendant, the attorney recognizes a potential civil case against the county. The attorney should refer the client to other counsel, decline employment, or withdraw from the case where the rights of the defendant would not be prejudiced thereby and with the client's consent. (B) While an attorney has a duty to vigorously represent a criminal defendant he may not use confidential information obtained from another client in that effort. Where a deputy sheriff or county employee is a witness and the attorney, because of his employment, has obtained information which would impeach the credibility of the witness, a potential conflict exists and the attorney must exercise his judgment in deciding whether to represent the client.