Can a former judicial law clerk represent a client on appeal in a case the clerk worked on while clerking for the trial judge?

Plain-English summary

A law firm hired Mr. A, a former law clerk to Judge B. Members of the firm had represented defendants indicted by the Statewide Grand Jury in two trials before Judge B while Mr. A was the judge's clerk. Two additional indictments arising from the same circumstances awaited trial. Mr. A had participated in the earlier matters only as an observer and had researched points of law for Judge B during the first two trials. When the Attorney General's office asked that Mr. A be disqualified, Judge B disqualified him to avoid any appearance of impropriety, and the matter was on appeal. The committee was asked whether Mr. A could represent a client on appeal who had been tried before Judge B when Mr. A was a clerk who only observed the trial and researched for the judge.

The committee applied Rule 1.12(a), under which a lawyer shall not represent anyone in a matter in which the lawyer participated personally and substantially as a law clerk to a judge, unless all parties to the proceeding consent after disclosure. The key element is personal and substantial participation. The committee said that given the role of a law clerk, any research in a matter would constitute substantial participation by the clerk in the matter, so a clerk in Mr. A's circumstances must withdraw from representation on the appeal unless all parties consent after disclosure. It noted Rule 1.12(c)'s firm-screening provision: where the disqualified lawyer is in a firm, no lawyer in the firm may undertake the matter unless the disqualified lawyer is screened and apportioned no part of the fee, and written notice is promptly given to the tribunal. The committee concluded that, under the circumstances presented, Mr. A should not participate in the appeals process.

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 Treat this page as historical context, not current guidance.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 former law clerk represent a party in a case he worked on while clerking?

A: The committee said Rule 1.12(a) bars it where the clerk participated personally and substantially, unless all parties to the proceeding consent after disclosure.

Q: Does researching the case for the judge count as substantial participation?

A: The committee said yes; given the role of a law clerk, any research in a matter constitutes substantial participation.

Q: Can the clerk's new firm still handle the matter?

A: The committee said only if the disqualified lawyer is screened from the matter and apportioned no part of the fee, with prompt written notice to the tribunal under Rule 1.12(c).

Background and rules framework

The opinion interprets Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral, and judicial law clerks), corresponding to Model Rule 1.12, including the all-parties-consent exception in 1.12(a) and the firm-screening provision in 1.12(c). The committee read "personal and substantial participation" broadly for law clerks who research a matter.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.12(a) / Model Rule 1.12: a lawyer shall not represent anyone in a matter in which the lawyer participated personally and substantially as a law clerk to a judge, unless all parties consent after disclosure.
• South Carolina RPC 1.12(c) / Model Rule 1.12: firm screening and notice when a disqualified lawyer is in the firm.

See also

• SC Bar Ethics Op. 91-26: Former Guardian ad Litem as Counsel
• SC Bar Ethics Op. 91-23: Married Lawyers Representing Adverse Co-Defendants

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-91-29/

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 91-29

XYZ Law Firm hired Mr. A, former law clerk for Judge B. Members of XYZ represented defendants indicted by the Statewide Grand Jury in two (2) trials before Judge B in Anywhere County. Mr. A was Judge B's law clerk during both trials.

There are presently two (2) additional indictments, arising from the same general circumstances, awaiting trial. A few motions regarding the present indictments were filed, but not heard, during the time Mr. A was scriving as Judge B's clerk. Prior to the first trials, a number of motions involving all the indictments were heard before Judge B.

Mr. A only participated in these matters as an observer. Mr. A also researched points of law for Judge B that arose during the course of the first two (2) trials.

Prior to the start of the trials on the last two (2) indictments, the Chief Deputy Attorney General asked that Mr. A be disqualified from participation in the trial pursuant to the South Carolina Rules of Professional Conduct. At a side bar conference with all of the attorneys, prior to the selection of the jury, Judge B discussed this matter with the attorneys and decided that, even though he saw no problem with Mr. A's participation, he would disqualify Mr. A from the case while it was before him. Judge B stated he was disqualifying Mr. A to avoid any appearance of impropriety. The trial was stayed with matters on appeal before the Supreme Court.

Question:
May an attorney, a former law clerk to a circuit judge, represent a client on appeal who was tried previously before the same judge when the attorney was a clerk and the attorney only observed the trial and researched points of law for the judge?

Summary:
In a case where a lawyer, former law clerk to a circuit court judge, desires to represent a client on appeal who was tried previously before the same judge when the attorney was a clerk, Rule 1.12(a) of the South Carolina Rules of Professional Conduct would prohibit the representation if the lawyer participated personally and substantially in the trial. If the lawyer did participate personally and substantially in the trial, he may only represent the client with the consent of the parties to the proceeding after disclosure.

Opinion:
This issue should be governed primarily by Rule 1.12 (a) of the South Carolina Rules of Professional Conduct, which reads in pertinent part, as follows:

(a)...a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a law clerk to a (judge), unless all parties to the proceeding consent after disclosure.

The key element of Rule 1.12 (a) is the requirement that a lawyer participate personally and substantially in a matter while a law clerk. Mr. A observed the motion hearings and trials and, also researched points of law for Judge B that arose during the proceedings. Accordingly, the issue then becomes whether Mr. A's observation and research amount to personal and substantial participation in the trials and hearings. Given the role of a law clerk, any research in a matter would constitute substantial participation by the law clerk in the matter.

In the event a law clerk does personally and substantially participate in a matter and finds himself in the same circumstances of Mr. A, he must withdraw from representation on the appeal unless "all parties to the proceeding consent after disclosure." See Rule 1.12 (a). Pursuant to Rule 1.12 (c), if the disqualified lawyer works in a firm, no lawyer in the firm with which the disqualified lawyer is associated may knowingly undertake or continue representation in the matter unless:

(1) The disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and, (2) Written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of Rule 1.12.

Under the circumstances presented, Mr. A should not participate in the appeals process.