Can a lawyer who sits on a state youth-services board represent a juvenile in a delinquency case that the agency makes recommendations in?

Plain-English summary

A sole practitioner sat, without salary or fee, on the board of the Department of Youth Services (DYS), an agency that supports juvenile delinquency proceedings by providing detention and intake recommendations to the solicitor and disposition recommendations to the court, recommendations that are followed in a high percentage of cases. The inquiry asked whether she could represent a juvenile in a criminal Family Court (delinquency) action while serving as a DYS board member.

The committee reconsidered its earlier Advisory Opinion 89-20, which had concluded under the prior Code that the attorney could not serve both roles. Under the Rules of Professional Conduct, the committee concluded there was no blanket prohibition against a DYS board member representing a juvenile in a delinquency action, though specific circumstances could still produce a violation. It applied Rule 1.11, which bars a lawyer from representing a private client in a matter in which the lawyer participated personally and substantially as a public officer or employee, and quoted the comment's concerns that public power not be used for a private client's benefit and that no unfair advantage accrue from access to confidential government information about the client's adversary. On the facts, the board member's responsibilities were limited to setting DYS policy (including budget and hiring or firing the agency head), and a separate board, the Juvenile Parole Board, adjudicated individual cases. The committee found it unlikely the board member would have participated substantially in an individual case or had access to DYS information about a potential client, so if that was so and she reasonably believed her DYS position would not be used to benefit her client and that her representation would not be adversely affected by her DYS responsibilities (citing Rule 1.7(b)), she was free to undertake the representation.

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a DYS board member represent a juvenile in a delinquency case?

A: The committee said there was no blanket prohibition under the Rules, reversing its earlier contrary opinion (89-20) decided under the prior Code, but said specific circumstances could still create a conflict.

Q: Why didn't Rule 1.11 disqualify her outright?

A: Because Rule 1.11 bars representation only in a matter in which the lawyer participated personally and substantially as a public officer. The board only set agency policy, while a separate board adjudicated individual cases, so she had not participated substantially in any case.

Q: What did she have to confirm before taking a case?

A: That she had no case-specific access to confidential DYS information about the juvenile's adversary and, under Rule 1.7(b), that her DYS role would not be used to benefit the client or materially limit the representation.

Background and rules framework

The opinion applied Rule 1.11 (successive government and private employment) and Rule 1.7(b) (a representation materially limited by responsibilities to a third person), corresponding to Model Rules 1.11 and 1.7. The committee read Rule 1.11's "personally and substantially" trigger against the board member's policy-only role.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.11 / Model Rule 1.11: a lawyer shall not represent a private client in a matter in which the lawyer participated personally and substantially as a public officer or employee.
• South Carolina RPC 1.7(b) / Model Rule 1.7: a lawyer shall not represent a client where the representation is materially limited by responsibilities to a third person.

Statutes:

• S.C. Code Ann. § 20-7-3170 (1986): general powers of the DYS Board.

Other opinions cited:

• SC Bar Advisory Opinion 89-20: the reconsidered prior opinion decided under the Code.

See also

• SC Bar Ethics Op. 90-20: A City Councilman's Firm and Conflicts
• SC Bar Ethics Op. 90-24: A County Attorney Recruiting a Taxpayer Plaintiff

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-26/

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 90-26

The only information provided was that included within the question stated below. However, this information implies certain facts.

The term "criminal family court action" implies a delinquency action, in which a minor has been charged with being delinquent. The Department of Youth Services (DYS) provides a support service to the courts and to the solicitor relative to such actions. DYS provides information relative to the determination of whether to detain or release a juvenile. DYS provides an intake recommendation to the solicitor, bearing on whether a formal petition should be lodged against the juvenile, or whether the juvenile should be diverted to informal processing. DYS also provides recommendations to the court relative to the disposition of cases, i.e., whether a juvenile's situation warrants evaluation, probation, or no sanction at all.

The request queries whether an attorney engaged in private practice may represent a juvenile in a criminal family court action if the attorney is also a member of the DYS Board. S.C. Code Ann. $ 20-7-3170 (1986) addresses the general powers of the DYS Board. The Board is vested with the exclusive power for setting the policy of DYS to carry out the agency's responsibilities. These policy matters include budgetary matters as well as the hiring and firing of the agency head. There is a separate board, the Juvenile Parole Board, which engages in the adjudication of individual cases.

While DYS is not a party in a criminal family court delinquency action, by providing information and making recommendations, it serves a support role to the court and to the solicitor's office.

As a practical matter, the recommendations of DYS are followed in a high percentage of cases.

Question:
Is there any ethical prohibition against an attorney engaged in private practice as a sole practitioner from representing a juvenile in a criminal Family Court action if said attorney is a member of the Department of Youth Services Board for which she receives no salary or fee?

Summary:
In its original opinion, Advisory Opinion 89-20, the Committee concluded that the attorney is prohibited by the Code of Professional Responsibility from serving both as a member of the Department of Youth Services Board and as the attorney for a juvenile in a criminal family court action. As a result of the recent promulgation of the Rules of Professional Conduct, the Committee has reconsidered its opinion in this matter and, upon reflection, the Committee has concluded that there is no blanket prohibition preventing a board member of the Department of Youth Services from representing a juvenile in a criminal Family Court action. There are, nevertheless, specific instances when such a representation could result in a violation of the Rules of Professional Conduct.

Opinion:
Under the Professional Rules of Conduct, a board member of the Department of Youth Services (DYS) is not prohibited from representing a juvenile in a criminal Family Court matter. However, before undertaking such representation, the attorney should consider whether in the particular circumstances of the case there exists a potential conflict of interest and/or potential breach of client confidentiality.

Rule 1.11 of the Rules of Professional Conduct states that "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." The Comment to Rule 1.11 provides the following additional guidance: "...the risk exists that power or discretion vested in public authority might be used for the benefit of a private client. A lawyer should not be in a position where benefit to a private client might affect performance of the lawyer's professional functions on behalf of public authority. Also, 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." From the facts submitted with this Question it appears that the DYS board member's responsibilities are restricted to setting the policy of DYS to carry out the agency's responsibilities and that there is a separate board which participates in the adjudication of individual cases. In such circumstances it seem unlikely that the board member in question would have participated substantially in an individual case or had access to DYS's information concerning his potential private client. If such is the case and the DYS board member reasonably believes that his position with DYS will not be used for the benefit of his client and that his representation of the client will not be adversely affected by his responsibilities to DYS (see Rule 1.7(b)), then he is free to undertake such representation.