Can a part-time county public defender also represent criminal defendants in other counties?

Plain-English summary

An attorney who was a partner in a small-town general practice also served as the part-time public defender for County X. He did not handle other criminal defense work in County X but wished to represent criminal defendants in other counties, and believed this was not a conflict.

The committee agreed there was no apparent conflict of interest between the attorney's position as public defender in one county and his representation of criminal defendants in other counties. It distinguished prior Opinion 82-26, which had concluded that an assistant solicitor could not represent criminal defendants in another county. The committee noted that as a result of the adoption of the Rules of Professional Conduct effective September 1, 1990, nothing in the Rules automatically prohibits the conduct addressed in 82-26, provided it is not in the same judicial circuit.

The committee added that specific circumstances could still produce a violation. Rule 1.11 prevents a lawyer from exploiting public office for the advantage of a private client, and Rule 1.7 prevents representing clients with adverse interests. If the attorney reasonably believes his public position will not be used for the benefit of a private client and that his criminal-defense representation will not be adversely affected by his duties, he is free to undertake the representation in other circuits.

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 Treat this page as historical context, not current guidance.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 a part-time public defender represent criminal defendants in other counties?

A: The committee said yes; it found no apparent conflict between serving as public defender in one county and representing criminal defendants in other counties.

Q: Did prior Opinion 82-26 (assistant solicitor) bar this?

A: The committee said 82-26 did not apply, and that after the 1990 adoption of the Rules nothing automatically prohibits such conduct, provided it is not in the same judicial circuit.

Q: What conditions did the committee attach?

A: Under Rule 1.11 the lawyer must not use public office for a private client's advantage, and under Rule 1.7 his defense representation must not be adversely affected by his public duties.

Background and rules framework

The opinion applied Rule 1.7 (conflicts of interest), corresponding to Model Rule 1.7, and Rule 1.11 (lawyers serving in public office), corresponding to Model Rule 1.11. The committee treated the question as turning on whether the lawyer's public role would be used for a private client or would impair his defense work, rather than as a categorical bar.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7 / Model Rule 1.7: a lawyer shall not represent clients with adverse interests absent the rule's conditions.
• South Carolina RPC 1.11 / Model Rule 1.11: a lawyer shall not exploit public office for the advantage of a private client.

Other opinions cited:

• SC Bar Advisory Opinion 82-26: an assistant solicitor could not represent criminal defendants in another county (distinguished).

See also

• SC Bar Ethics Op. 92-18: Part-Time Public Defenders
• SC Bar Ethics Op. 92-21: Public Defenders & Co-Defendants

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-91-19/

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 91-19

An attorney who is a partner in a small town general practice in County X also serves as the part-time public defender for County X. County X has a public defender corporation for which the attorney is the sole employee. County X supplies one-half the budget for the public defender corporation, and the state provides the balance. The attorney is not treated as a county employee nor a state employee, but is paid quarterly a gross amount providing all public defender services. The attorney does not provide the screening to determine who is public defender eligible, that service being provided by the county clerk of court.

The attorney, for various reasons, and out of courtesy to other local bar members, does not handle other criminal defense work in County X. The attorney does, however, wish to be able to represent criminal defendants in counties other than County X. The attorney does not believe this is a conflict.

The attorney specifically believes that SC Bar Advisory Opinion 82-26 does not apply. That opinion concludes that an assistant solicitor cannot represent criminal defendants outside his county. The attorney believes that is based upon law enforcement officers working across county lines, and when the solicitor changes sides he would be in a position of having to cross examine one of his witnesses from a previous case. In the above hypothetical, the attorney continues to represent criminal defendants so there is no going from one side of the courtroom to the other.

Summary:
It is no violation of the Rules of Professional Conduct for a public defender in one county to represent criminal defendants in other counties.

Opinion:
There is no apparent conflict of interest between an attorney's position as public defender in one county and his representation of criminal defendants in other counties.

The question presented also refers to SC Bar Advisory Opinion 82-26 which concluded that an assistant solicitor in one county could not represent criminal defendants in another county. That opinion does not apply to the question presented here; however, the committee takes this opportunity to point out that, as a result of the adoption of the Rules of Professional Conduct effective September 1, 1990, there now is nothing in the Rules which automatically prohibits the conduct addressed in Advisory Opinion 82-26, provided it is not in the same judicial circuit. The attorney should be aware, however, that there are specific circumstances in which such representation could result in a violation of the Rules of Professional Conduct. In Advisory Opinion 82-26, the Committee concluded that the assistant solicitor as a public official might have undue influence over the witnesses for the state-usually police officers-or vice versa. Rule 1.11 clearly prevents a lawyer from exploiting public office for the advantage of a private client and Rule 1.7 prevents a lawyer from representing clients with adverse interests. If the attorney reasonably believes that his position as assistant solicitor will not be used for the benefit of a private client (see Rule 1.11) and that his representation of the criminal defense client will not be adversely affected by his responsibilities as assistant solicitor (see Rule 1.7 (b)) then he is free to undertake such representation in other circuits.