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 95-05
An attorney who has worked in a solicitor's office has recently left to go into private practice. At issue are two cases in which the arrests were made while he was in office. While in office, the attorney did not enter into any negotiations or agreements which would bind the State of South Carolina. The cases remain pending. The victims of these two offenses now request that this attorney represent them in civil suit against the alleged perpetrators.
Question:
May this attorney who was formerly a solicitor now represent victims in civil suits against the alleged perpetrators whom he had been prosecuting?
Summary:
The former solicitor may not file suit for a private client against an alleged perpetrator in the county where he served if he participated personally and substantially in a matter concerning the client and the alleged perpetrator while a solicitor unless the solicitor's office consents after consultation. Further, he may be barred from this representation because of information to which he had access.
Opinion:
Rule 1.11 of the Rules of Professional Conduct applies to this situation. A primary concern of this rule is to prevent a lawyer from exploiting public office for the advantage of a private client.
Rule 1.11(a) states "Except as law may otherwise expressly permit, a lawyer shall 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." It is noteworthy that the restriction of this rule is beyond direct conflicts of interest. It prohibits the attorney from private representation in connection with "a matter" in which there has been personal participation by the lawyer. Rule 1.11(d) defines "matter".
The comment to the rule is enlightening. It states that where the successive clients are a public agency and a private client, a risk exists that power vested in public authority might be used for the special benefit of the private client. The comment points out that "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." Thus, Rule 1.11(b) may also apply. This rule 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 the material disadvantage of that person." Therefore, the former solicitor may represent the victims in a civil suit against the alleged perpetrators if he has consulted with the solicitor's office and obtained consent. On the other hand, if he had access to confidential information which could lead to an unfair advantage, he may be prohibited from the representation.