Can a lawyer who, as an elected official, shares the power to appoint a board's members keep representing that board in litigation?

Plain-English summary

An attorney elected to public office acquired, shared with other officials, the power to participate in appointing the five members of a County Fire Commission. The attorney also represented the Fire Commission in litigation on an hourly basis. The questions were whether he could continue representing the Commission in future litigation and in litigation pending at the time of his election.

The committee concluded the Rules of Professional Conduct do not prohibit the representation, so he could continue representing the Commission, including in litigation in progress when he was elected. It reasoned that the ethical concern arose from the attorney's official power to participate in appointing commissioners who in turn decide who to hire as counsel, but the appointive power was shared with other officials (diluting any one official's influence) and no single commissioner had exclusive authority to hire or fire counsel, so his ability to control the Commission's hiring through one appointment was limited; he could not abuse the appointment power to influence the hiring of counsel. The committee noted the situation does not fit the conflict rules: it is not a current- or former-client conflict (Rules 1.7 and 1.9) or successive government-and-private employment (Rule 1.11), because there is only one client and one employer, the Commission. It cautioned that if the attorney, as a public official, came to seek a commissioner's dismissal, censure, or non-reappointment based on confidential information learned representing the Commission, Rules 1.6 and 3.3 would govern disclosure, and that in dealing with individual commissioners the attorney must comply with Rule 1.13 (organization as client), especially Rule 1.13(d)'s duty to identify the client. The committee twice stated it expressed no opinion on whether the facts would violate State Ethics Commission rules or state ethics legislation.

Currency note

This opinion was issued in 1993, 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 Treat this page as historical context, not current guidance.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 lawyer-official represent a board whose members he helps appoint?

A: The committee concluded the Rules of Professional Conduct do not prohibit it, so he may continue representing the commission, including in litigation pending at his election.

Q: Why didn't the conflict rules bar this?

A: The committee said it is not a current- or former-client conflict (Rules 1.7, 1.9) or successive government-private employment (Rule 1.11), because there is only one client and one employer, the commission; the shared appointment power also limited his influence.

Q: What limits did the committee still flag?

A: The lawyer may not abuse the appointment power to influence hiring of counsel; if confidential information led him to seek a commissioner's removal, Rules 1.6 and 3.3 govern disclosure; and Rule 1.13(d) requires identifying the client when dealing with individual commissioners.

Background and rules framework

The opinion applied Rule 1.7 (current-client conflicts), Rule 1.13 (organization as client), and Rule 1.6 (confidentiality), and discussed Rule 1.11 (government employment) and Rule 3.3 (candor), which correspond to like-numbered Model Rules. The committee found the conflict rules inapplicable because a single client and employer were involved.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7, 1.9, 1.11 / Model Rules 1.7, 1.9, 1.11: the committee found none applied, given one client and one employer.
• South Carolina RPC 1.13 / Model Rule 1.13: organization as client, including Rule 1.13(d)'s duty to identify the client when dealing with constituents.
• South Carolina RPC 1.6 and 3.3 / Model Rules 1.6, 3.3: confidentiality and candor, governing any disclosure of confidential information.

See also

• SC Bar Ethics Op. 93-25: Lawyer on City Council vs. the City
• SC Bar Ethics Op. 93-22: County Prosecutor as Defender
• SC Bar Ethics Op. 93-18: Investigator Married to a Deputy

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-02/

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 93-02

An attorney is elected to public office and as a result acquires the power, shared among other public officials, to participate in appointing the five members of a County Fire Commission.

The attorney on occasion represents the County Fire Commission in litigation on an hourly fee basis.

Questions:

1. May the attorney continue to represent the County Fire Commission in future litigation?
2. May the attorney continue to represent the Fire Commission in litigation which was pending at the time the attorney was elected to public office?

Summary:
The Rules of Professional Conduct do not prohibit the attorney from representing a Commission whose members he participates in appointing. Thus, consistent with the Rules, the attorney may continue to represent the Commission in litigation in progress at the time of his election to public office.

This committee expresses no opinion as to whether the facts presented would involve a violation of the rules of the State Ethics Commission or relevant state ethics legislation.

Opinion:
The ethical aspects of this situation arise out of the attorney's official power to participate in appointing Commission members who, presumably, in turn decide who to h ire as litigation counsel for the Commission. The attorney could conceivably condition a vote for appointment to the Commission upon the appointee's agreement to then hire the attorney as the Commission's litigation counsel.

As an initial matter, it should be noted that the attorney does not wield the sole and exclusive appointive power, but rather shares this power with other public officials. This dilution of appointive power serves to check the ability of any one official to advance his or her singular interests through abuse of the appointive power.

In addition, it must be assumed that no one Commissioner wields the exclusive authority to hire or fire litigation counsel for the Commission. Thus, the attorney's ability to control the hiring practices of the Commission through the appointment of one Commissioner is presumably limited. The lawyer may not abuse the power over Commission appointments in order to influence the hiring of litigation counsel.

The Rules of Professional Conduct, to which the advice of this Committee is limited, do not specifically address this situation. For example, the scenario does not involve a conflict between current or former clients (Rules 1.7 and 1.9) or successive government and private employment (Rule 1.11), because there is only one client and one employer involved here, the Commission.

The lawyer should be aware that in the course of representing the Commission the attorney might receive confidential information about conduct by one or more or the individual commissioners, leading the attorney, in his or her capacity as a public official, to seek dismissal or censure of the Commissioner(s), or to oppose a Commissioner's reappointment to the Commission.

Were this situation to arise, the restrictions imposed by Rules 1.6 and 3.3 would not doubt govern the attorney's disclosure of the confidential information.

Finally, in dealing with individual Commissioners, the attorney should be careful to faithfully comply with the requirements of Rule 1.13 (Organization as Client), especially Rule 1.13(d) requiring the attorney to identify the client when dealing with constituent members of the organization.

Again, this committee expresses no opinion as to whether the facts presented would involve a violation of the rules of the State Ethics Commission or relevant state ethics legislation.