Can a firm defend abuse and neglect cases brought by a social-services agency when one firm member sits on the agency's board?

Plain-English summary

A member of a law firm served on the Board of Directors of the County Department of Social Services, which gives supervisory direction and receives summaries and reports on the department's files and is responsible for ensuring the director and staff properly manage daily operations. The question was whether another member of the firm could represent defendants in child neglect and abuse proceedings brought by the agency.

The committee said the agency is not a client of the firm by virtue of the member's board service. If the agency is viewed as a "legal services organization," Rule 6.3 directly resolves the issue, because a lawyer who serves as an officer of such an organization is not in an attorney-client relationship with it (Comment to Rule 6.3). The agency is, however, a "third person" to whom the lawyer and firm owe obligations of the kind contemplated by Rule 1.7(b). So if the firm reasonably believes it can handle the appointment without adversely affecting its member's obligation to the agency, both the client and the agency may be advised and asked to consent. Even with consent, the board-member should not be present for discussion of specific matters handled by the firm, nor receive or have access to DSS reports on those matters. The agency's consent could be granted for a defined scope of appointments so individual agency consent is not needed each time, but specific case-by-case consent would still be required from each client whose case the firm is appointed to handle.

Currency note

This opinion was issued in 1992, 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 Treat this page as historical context, not current guidance.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: Does a firm member's board seat make the agency the firm's client?

A: The committee said no. The agency is not a client by virtue of the member's board service; if the agency is a legal services organization, Rule 6.3 confirms an officer is not in an attorney-client relationship with it.

Q: Can another firm member defend cases the agency brings?

A: The committee said yes, if the firm reasonably believes it can do so without adversely affecting the member's obligation to the agency (a Rule 1.7(b) third-person obligation) and both the agency and each client consent.

Q: What safeguards did the committee require?

A: The board-member should not be present for discussion of the firm's specific matters and should not receive or access DSS reports on them.

Q: Does the agency have to consent to each appointment separately?

A: The committee said the agency could consent to a defined scope of appointments in advance, but each individual client must still give specific consent on a case-by-case basis.

Background and rules framework

The opinion applied Rule 6.3 (membership in a legal services organization) and Rule 1.7(b) (material-limitation conflicts from duties to a third person), each corresponding to the like-numbered Model Rule. The analysis turned on the agency being a third person rather than a client and on screening the board-member plus obtaining informed consent.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 6.3 / Model Rule 6.3: a lawyer serving as an officer of a legal services organization is not thereby in an attorney-client relationship with it.
• South Carolina RPC 1.7(b) / Model Rule 1.7: a representation materially limited by duties to a third person may proceed only with reasonable belief of no adverse effect and consent.

See also

• SC Bar Ethics Op. 92-16: County and Municipal Attorney Conflicts
• SC Bar Ethics Op. 02-09: A Church Member Suing the Church

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-10/

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 92-10

A member of a law firm serves on the Board of Directors of the County Department of Social Services, which gives supervisory direction and receives summaries and reports on various files being handled by the department. The Board is responsible for insuring that daily management of the department is properly handled by the director and his staff.

Question:
May another member of the firm represent defendants in child neglect and abuse proceedings brought by the agency?

Summary:
Members of the lawyer's firm may represent defendants in child neglect and abuse proceedings brought by the agency if both the agency and the defendants are fully advised of the firm's roles and agree to the representation.

Opinion:
The agency is not a client of the firm by virtue of its member's service on the board of the agency. If the agency is viewed as a "legal services organization," Rule 6.3 directly resolves the issue. A lawyer who serves as an officer of such an organization is not in an attorney/client relationship with the organization. Comment to Rule 6.3. The agency is, however, a "third person" to whom the lawyer and his firm have obligations of the kind contemplated by Rule 1.7 (b).

Therefore, if the firm reasonably believes it can handle the appointment without adversely affecting its member's obligation to the agency, both the client and the agency may be advised of the situation and their consent to the appointment requested.

Even where consent is granted, the member of the firm serving on the board should not be present for discussion of specific matters handled by his firm. Nor should the board member receive or have access to DSS reports on such matters.

The agency's consent could be granted for a defined scope of appointments that may be made so that individual consent is not required from the agency each time an appointment is made. In that event, specific consent would be required on a case-by-case basis of each client whose case the firm is appointed to handle.