Can a child-support agency lawyer pursue a defendant he once represented or whose confidential government information he holds, and can the agency be on both sides in unrelated cases?

Plain-English summary

The Office of Child Support Enforcement (OCSE) often employs attorneys who previously practiced privately or in other public service, sometimes having represented defendants in OCSE-initiated child-support actions. Because OCSE must pursue all child-support actions on a proper assignment of rights, it may end up pursuing support on behalf of a mother who is also a defendant in a different support matter. The committee was asked three questions about conflicts.

On the first, applying Rule 1.11(c)(1), the committee said a lawyer who personally and substantially represented a defendant in a private-practice child-support action initiated by OCSE may not then pursue that defendant for OCSE, but under the comment to Rule 1.11 other OCSE lawyers are not disqualified. On the second, applying Rule 1.11(b), the committee said a lawyer who acquired confidential government information about a person while a public officer may not pursue an action against that person where the information could be used to the material disadvantage of the previous employer (or, given the meaning of "confidential," of the individual), but other OCSE lawyers may proceed if the disqualified lawyer is screened and apportioned no fee; it noted the comment's treatment of one government agency as a private client when the lawyer later serves another government agency, and that agencies of the same government can have adverse interests (such as a solicitor's office and a public defender's office). On the third, the committee found no proscription against OCSE pursuing an action on behalf of a parent while also pursuing an unrelated action against that parent where proper assignments were made by both parties: a proper assignment conveys the party's rights to the agency, which then has complete discretion over the matter, removing the assigning party from the traditional definition of a protected "client," and the public interest supports access to the agency, which is presumably the only public body authorized to pursue these matters.

Currency note

This opinion was issued in 1991, 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: Can an OCSE lawyer pursue a defendant he previously represented in an OCSE support case?

A: The committee said no, under Rule 1.11(c)(1), because he participated personally and substantially while in private practice; but other agency lawyers are not disqualified.

Q: What if the lawyer holds confidential government information about the person?

A: The committee said under Rule 1.11(b) he may not pursue an action where the information could be used to that person's (or the prior employer's) material disadvantage, though other agency lawyers may proceed if he is screened.

Q: Can OCSE pursue a parent in one case while representing that parent in an unrelated case?

A: The committee said yes, where proper assignments were made by both parties; the assignment conveys the party's rights to the agency and removes the party from the traditional definition of a protected client.

Background and rules framework

The opinion interprets Rule 1.11 (successive government and private employment), corresponding to Model Rule 1.11, including the confidential-government-information bar in 1.11(b), the personal-and-substantial-participation bar in 1.11(c), and the definition of "matter" in 1.11(d). The committee treated screening as the cure for an individual lawyer's disqualification within the agency.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.11(b) / Model Rule 1.11: a lawyer holding confidential government information may not represent a client adverse to that person where the information could be used to their material disadvantage; screening cures it for others.
• South Carolina RPC 1.11(c) / Model Rule 1.11: a public lawyer shall not participate in a matter in which he participated personally and substantially while in private practice.

See also

• SC Bar Ethics Op. 91-05: Conflicts for a Firm Whose Members Are the County and Town Attorneys
• SC Bar Ethics Op. 91-19: Public Defender Representing Defendants in Other Counties

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-91-13/

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 91-13

The OCSE (Office of Child Support Enforcement) often employs attorneys who previously practiced law in the private sector or in other public service areas. These attorneys may have been represented defendants in child support actions initiated by OCSE.

The OCSE is required by federal law to pursue all child support actions when a proper assignment of right is made pursuant to the applicable federal and state statutes. This may result in the OCSE having cases in which child support is pursued on behalf of the mother of the child yet the mother of the child may be named defendant in a different child support matter if she has another child in an individual's custody who has also filed a proper assignment with this agency.

Questions:
(1) Does a conflict exist if the attorney on behalf of the OCSE initiates a child support action against a defendant the attorney had previously represented in private practice or in other public service areas? (2) Is it ethical for an attorney possessing confidential information about an individual to pursue an action against that individual? (3) May an attorney employed by OCSE initiate a child support action against a defendant/mother of a child and at the same time pursue an action on behalf of said mother for child support in an unrelated case?

Summary:
(1) It is unethical for an attorney on behalf of the OCSE to pursue a child support matter against a defendant the attorney previously represented in action initiated by the OCSE while the attorney was in private practice. However, other lawyers in the agency would not be disqualified from representing the OCSE against the defendant.

(2) Where by reason of the previous employment of an attorney in a public service area the attorney knows confidential government information about an individual, it is unethical for the attorney on behalf of the OCSE to pursue an action against the individual if the knowledge of such confidential information could be used to the material disadvantage of the previous employer or of the individual. However, other lawyers in the agency would not be disqualified from representing the OCSE if the disqualified lawyer is screened from any participation in the matter. (3) It is not unethical for the OCSE to pursue a child support matter on behalf of a mother of a child while at the same time naming the mother as a defendant in an unrelated child support matter where proper assignments have been made by both parties on whose behalf the OCSE is acting.

Opinion:
Rule 1.11 (b) provides:
Except as law may otherwise expressly permit, 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. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom. (Emphasis added).

Rule 1.11 (c)(1) provides:
Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not: Participate in a matter in which the lawyer participated personally and substantially while in private practice or non-governmental employment, unless under applicable law no one is, or by lawful designation may be, authorized to act in the lawyer's stead in the matter....

Rule 1.11 (d) (1) provides:
As used in this Rule, the term "matter" includes: Any judicial or other proceeding, application, request for ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties...
It is readily apparent that if an attorney while in private practice represented a defendant in a child support action initiated by the OCSE that the attorney did participate in a matter, personally and substantially while in private practice or non-governmental employment, with respect to the particular defendant that would preclude pursuit by the attorney in a child support action initiated by OCSE. However, as set forth in the Comment to Rule 1.11, other lawyers in the OCSE are not disqualified from pursuing an action against the particular defendant on behalf of the OCSE.

An attorney is in a similar position when the attorney was employed as a public officer or employee in another public service area prior to being employed by the OCSE, The Comment to Rule 1.11 provides that when the client is an agency of one government, that agency should be treated as a private client for the purposes of the Rule if the lawyer thereafter represents an agency of another government. Presumably agencies of the same government could have adverse interests for the purpose of this Rule (e.g., Solicitors Office and Public Defenders Office). It should be noted, however that the lawyer must have acquired "confidential government information" through his previous employment which "could be used to the material disadvantage of the previous employer in order to be disqualified. By definition of the word "confidential", it would appear that the disqualification would also apply if it could be used to the material disadvantage of the individual involved. As set forth in the text of the Rule, where proper safeguards and screening are undertaken, other attorneys in the OCSE may undertake on behalf of the OCSE to pursue an action behalf of the particular individual.

There does not appear to be any proscription against the OCSE pursuing an action on behalf of a party while pursuing an action against the same party in unrelated child support matters where appropriate assignments have been made by both parties on whose behalf the OCSE is acting. Two factors support this conclusion: (1) Where a proper assignment is executed, a party in exchange for governmental aid or assistance conveys his or her rights in the action against the defendant to the agency. After the assignment is made the agency has complete discretion in handling the matter, including whether or not to even pursue an action against the defendant. While the party seeking assistance of the agency is expected to cooperate with the agency in its efforts by providing certain information, cooperation may be minimal and attendance at hearings is not mandated. Therefore, the assignment removes the party seeking such assistance or aid from the traditional definition of a "client" which the Rules intended to protect; and (2) Presumably, the OCSE is the only public agency authorized to pursue these matters and the "public interest" recognized in the Preamble to the Rules of Professional Conduct dictates that all qualified citizens have access to the services of the agency.