Must a lawyer-legislator warn clients up front that the lawyer's representation of them before state agencies will be publicly disclosed?

Plain-English summary

Under a recently passed state ethics law, lawyers who are also legislators would be required to publicly disclose which clients they had represented before state agencies. The committee was asked whether the lawyer-legislator must disclose to the client, up front and in writing, that such representation will ultimately be made public.

The committee said no provision of the Rules requires that disclosure. Rule 1.6 provides that a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, but the committee read the rule's implication to be that the lawyer is not to "reveal" information that is not otherwise public. Because representation of the client before a state agency would be a matter of public record (just as it would be for a lawyer who is not a legislator), the mere fact of representation is not confidential; by providing a list of clients represented before state agencies, the lawyer-legislator is compiling what is already public record and is not revealing any confidential information.

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 Treat this page as historical context, not current guidance.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: Must a lawyer-legislator warn clients that representing them before a state agency will become public?

A: The committee said no; no provision of the Rules requires that disclosure to the client.

Q: Why does Rule 1.6 not require it?

A: The committee read Rule 1.6 to bar revealing information that is not otherwise public; representation before a state agency is already a matter of public record, so the fact of representation is not confidential.

Background and rules framework

The opinion interprets Rule 1.6 (confidentiality of information), corresponding to Model Rule 1.6, in the context of a state ethics-disclosure law applying to lawyer-legislators. The committee distinguished confidential information from information already in the public record.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.6 / Model Rule 1.6: a lawyer shall not reveal information relating to the representation of a client unless the client consents after consultation.

See also

• SC Bar Ethics Op. 91-19: Public Defender Representing Defendants in Other Counties
• SC Bar Ethics Op. 92-03: Lawyer as Title Insurance Agent

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-91-28/

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 91-28

Under the recently passed ethics law in this state, lawyers who are also legislators will now be required to publicly disclose which clients they have represented before state agencies.

Question:
Is the lawyer/legislator under a duty to disclose to the client, up front and in writing, the fact that such representation will ultimately be made public?

Summary:
No provision of the Rules of Professional Conduct require the lawyer/legislator to disclose to a client the fact that representation of the client by the lawyer-legislator will ultimately be made public.

Opinion:
Rule 1.6 provides that a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation. The implication of this rule is that the lawyer is not to "reveal" information which is not otherwise public.

It appears from the question presented that representation of the client by the lawyer/legislator before a state agency would be a matter of public record, as would representation of the client by a lawyer not also a legislator. This being public information, the mere fact of representation is not confidential and, by providing a list of clients who have been represented before state agencies, a lawyer/legislator is doing nothing more than compiling what is already a public record and is not "revealing" any information of a confidential nature.