If one partner becomes a part-time juvenile solicitor, is his law partner barred from defending criminal clients in General Sessions Court?

Plain-English summary

Attorney A and Attorney B practiced together in a small firm. The County X Solicitor's Office wanted to hire Attorney A part-time to prosecute juvenile cases in Family Court, giving him an office completely separate from the Solicitor's Office. Attorney B did criminal-defense work in the county, but only in General Sessions Court. The firm asked whether Attorney A's new role created a Rule 1.7 conflict that, through Rule 1.10's imputation, would bar Attorney B from defending clients in General Sessions Court.

The committee concluded Attorney A had no conflict under Rule 1.7, which bars simultaneous representation of clients with adverse interests, and that the juvenile solicitor's office and the main Solicitor's Office were separate and distinct entities for Rule 1.10 imputation. Three facts supported that conclusion: Attorney A would have a separate office and support staff, a distinct caseload, and would prosecute in a different court (Family Court) than the Solicitor's Office (General Sessions). The committee tied this to prior opinions: Opinion 93-01 found that two public defenders maintaining separate offices were not one office for imputation, while Opinion 94-32 (a firm trying a criminal case against the very Solicitor's Office some members worked for part-time) was distinguishable.

The committee identified one potential conflict: a waiver hearing in which Attorney A prosecutes a juvenile who is then waived up to General Sessions Court, where Attorney B would be prohibited from representing that juvenile. Absent that situation, it was ethically permissible for Attorney A to prosecute juvenile cases in Family Court while Attorney B represented criminal clients in General Sessions Court.

In practice

The opinion holds that, under the South Carolina rules as they stood at the time, a part-time juvenile solicitor whose office, caseload, and court are separate from the main Solicitor's Office is not, for Rule 1.10 imputation purposes, part of that office, so his law partner may continue to defend criminal clients in General Sessions Court. The committee identified the one carve-out: if the partner's solicitor prosecuted a juvenile who is then waived up to General Sessions Court, the partner could not represent that juvenile there. South Carolina revised its Rules of Professional Conduct effective 2005; verify the current text of Rules 1.7 and 1.10 before relying on the specific analysis here.

Common questions

Q: Does a partner becoming a part-time juvenile solicitor disqualify the whole firm?

A: The committee concluded no: with a separate office, distinct juvenile caseload, and a different court, the juvenile solicitor's office is a separate entity, so Rule 1.10 does not impute any disqualification to the firm.

Q: Can the other partner keep defending criminal clients in General Sessions Court?

A: The committee concluded yes, because the part-time juvenile solicitor has no Rule 1.7 conflict that would be imputed to the partner.

Q: Is there any situation where a conflict arises?

A: The committee concluded yes: if the solicitor partner prosecuted a juvenile who is then waived up to General Sessions Court, the defense partner could not represent that juvenile in General Sessions.

Background and rules framework

The opinion interpreted South Carolina RPC 1.7 (concurrent conflicts) and 1.10 (imputed disqualification within a firm), corresponding to the like-numbered Model Rules, applying them to a part-time public prosecutor whose office is structurally separate from the main Solicitor's Office. The committee relied on its Opinions 93-01 and 94-32.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7 / Model Rule 1.7: concurrent conflicts of interest.
• South Carolina RPC 1.10 / Model Rule 1.10: imputed disqualification within a firm.

Other opinions cited:

• S.C. Bar Ethics Advisory Op. 93-01 (separate public-defender offices not a single office for imputation).
• S.C. Bar Ethics Advisory Op. 94-32 (firm could not try a criminal case against the Solicitor's Office it worked for).

See also

• SC Bar Ethics Op. 02-03: Ex-Solicitor's Civil Case From a Prosecution
• SC Bar Ethics Op. 11-02: County Attorney for Defendants
• SC Bar Ethics Op. 09-06: Mayor's Partner in City Court

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-02-02/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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’S 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 02-02

Upon request by a South Carolina Bar member, the Ethics Advisory Committee has rendered this opinion on the ethical propriety of the inquirer's contemplated conduct. This Committee has no disciplinary authority. Lawyer discipline in South Carolina is administered solely by the Supreme Court through its Commission on Lawyer Conduct.

Facts:
Attorney A and Attorney B practice together in a small firm in County X. The Solicitor's Office in County X wants hire Attorney A on a part-time basis to prosecute juvenile cases in Family Court. Attorney B does some criminal defense work in County X, but only in General Sessions Court. The County X Solicitor's Office will provide Attorney A an office completely separated from the County X Solicitor's Office, out of which Attorney A will prosecute his juvenile cases.

Question:
If Attorney A accepts the job as juvenile solicitor, does Attorney A have a conflict of interest based on Rule 1.7, such that Attorney B would be prohibited from representing clients in General Sessions Court?

Summary:
Attorney A does not have a conflict of interest based on Rule 1.7. The physical separation of the Solicitor's Office from the proposed Juvenile Solicitor's Office in County X, coupled with the distinct case load and different courts, diminishes any potential conflict of interest on Attorney A's part.

Opinion:
Attorney A does not have a conflict of interest under Rule 1.7 of the South Carolina Rules of Professional Conduct. Rule 1.7 bars the simultaneous representation of clients with adverse interests. Additionally, Rule 1.10 works to impute disqualification, forbidding a firm from representing a client when any one member of the firm would be prohibited from such representation. Thus, if Attorney A were considered a member of the County X Solicitor's Office, Attorney B would be prohibited from representing criminal clients in General Sessions Court because Attorney A could not ethically do so.

Under the facts presented here, Attorney A does not have a conflict of interest under the Rules of Professional Conduct. First, Attorney A will have an office, and presumably support staff, separate from the County X Solicitor's Office. Second, Attorney A will have a caseload distinct from that handled by the County X Solicitor's Office. Finally, Attorney A will prosecute his cases in a court different from that in which the County X Solicitor's Office prosecutes its cases. All of these factors support the conclusion that the County X Solicitor's Office and the proposed Juvenile Solicitor's Office are completely separate and distinct entities for purposes of imputing disqualification under Rule 1.10.

This determination is in accord with previous Committee opinions. For example, in Advisory Opinion 93-01, the Committee determined that when separate offices are maintained by two public defenders, there would not be a single public defender's office for purposes of imputing disqualification under Rule 1.10. In contrast, Advisory Opinion 94-32 stated that a law firm could not represent a client in a criminal matter when members of that law firm worked part-time for the Solicitor's Office against whom the law firm would try the criminal case - a situation that is not present in this inquiry.

One potential conflict could occur in the context of a waiver hearing in which Attorney A prosecutes a juvenile, who is subsequently waived up to General Sessions Court. In that case, Attorney B would be prohibited from representing the juvenile in General Sessions Court. Absent a situation such as the one just described, it is ethically permissible for Attorney A to prosecute juvenile cases in Family Court, while his law partner, Attorney B, represents criminal clients in General Sessions Court.