Can a public defender's office employ as chief investigator the spouse of a sheriff's narcotics investigator?

Plain-English summary

Jane Doe was chief investigator in a county public defender's office; her spouse John Doe was a narcotics investigator in the same county's sheriff's department. The office assigned all cases charged by the narcotics division to a separate lawyer, Richard Roe, who supervised the investigative work on those cases; Jane Doe had no access to those files or supervisory authority over them, personnel were told not to discuss narcotics cases with her, and cases in which John Doe was chief investigating officer were conflicted out of the office. Two questions were asked: whether her employment created a conflict, and whether the office's procedures adequately discharged its responsibility for a nonlawyer assistant.

On the first, the committee concluded her employment was not a per se conflict. South Carolina Rule 1.8(i) bars a lawyer related to another lawyer by marriage from "personally" representing a client directly adverse to a client the related lawyer represents, except on client consent; because the South Carolina rule adds the word "personally," imputed disqualification did not reach other lawyers in the office, such as Richard Roe, with whom Jane Doe did not work. Even so, the committee noted potential conflicts could arise (for example, where a client faced both narcotics and other charges) and advised full disclosure to all concerned in such situations, citing ABA Formal Opinion 340. On the second, the committee concluded the office procedures were sufficient under Rule 5.3: lawyers had to make reasonable efforts to ensure measures giving reasonable assurance that the nonlawyer's conduct was compatible with their professional obligations, including preserving confidences and not being influenced by the spouse's employment. It stressed that lawyers remain responsible under Rule 5.3(c) for conduct they order or ratify or fail to mitigate, and that if a conflict arose, a lawyer aware of it should see that an investigator other than, and not supervised by, Jane Doe took over the case.

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 Treat this page as historical context, not current guidance.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: Is it a conflict for an investigator to work for the public defender when her spouse is a sheriff's investigator?

A: Not per se. The committee concluded employment was not automatically barred, because Rule 1.8(i) (with South Carolina's added word "personally") prevents imputed disqualification of other office lawyers who do not work with her.

Q: What procedures did the office need for the nonlawyer investigator?

A: Under Rule 5.3, lawyers had to make reasonable efforts to ensure measures giving reasonable assurance her conduct was compatible with their obligations, segregating her spouse's cases and instructing personnel not to discuss them with her.

Q: What if a conflict still arose in a particular case?

A: The committee said a lawyer knowing of the conflict should see that an investigator other than, and not supervised by, Jane Doe took responsibility for the case, along with other reasonable remedial action.

Background and rules framework

The opinion applied Rule 1.8(i) (conflicts involving related lawyers) and Rule 5.3 (responsibilities regarding nonlawyer assistants), which correspond to like-numbered Model Rules. The committee emphasized that South Carolina's Rule 1.8(i) inserts "personally," which narrows imputed disqualification compared with the Model Rule.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.8(i) / Model Rule 1.8(i): a lawyer related to another lawyer shall not personally represent a client directly adverse to a person the lawyer knows is represented by the related lawyer, absent client consent.
• South Carolina RPC 5.3 / Model Rule 5.3: lawyers must make reasonable efforts to ensure a nonlawyer assistant's conduct is compatible with their professional obligations, and are responsible for conduct they order, ratify, or fail to mitigate.

Other opinions cited:

• ABA Formal Opinion 340.

See also

• SC Bar Ethics Op. 13-08: Spouse Was Former Agency Counsel
• SC Bar Ethics Op. 93-29: A Secretary Joining Opposing Counsel
• SC Bar Ethics Op. 93-22: County Prosecutor in Municipal Court

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-18/

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 93-18

Jane Doe is Chief Investigator in County X Public Defender's Office. Her spouse, John Doe, was recently promoted to the position of narcotics investigator in County X Sheriff's Department.

Jane Doe's duties include supervision of two investigators and a paralegal, coordination of investigative activities, and general office management. She performs investigative work for two lawyers who do not represent clients charged by County X Sheriff Department's narcotics division.

County X Public Defender assigns all clients charged by the narcotics division of County X Sheriff Department to a third lawyer, Richard Roe. Richard Roe directly supervises all investigative work performed on these cases. Jane Doe has no access to these files and has no supervisory authority over investigators while they are working on narcotics division cases. Personnel have been instructed not to discuss any narcotics division cases in any fashion with Jane Doe. All narcotics cases in which John Doe is chief investigating officer are conflicted out of the Public Defender's Office.

Questions:

1. Does employment of a sheriff department investigator's spouse in the public defender's office in County X create a conflict of interest?
2. Are County X Public Defender Office procedures concerning assignment and representation of clients prosecuted by County X sheriff department sufficient to avoid violation of ethical responsibility for nonlawyer assistants?

Summary:

1. Jane Doe, the spouse of the sheriff department's narcotics investigator, may serve as chief investigator in the public defender's office so long as Jane Doe does not assist or have access to information from lawyers directly adverse to parties under investigation by her spouse's division.
2. The Public Defender's Office procedures are adequate so long as they segregate clients and information relating to clients under investigation by the sheriff department's narcotics division from Jane Doe.

Opinion:

1. The Public Defender Office in County X may employ as its chief investigator the spouse of a County X sheriff department's narcotics division investigator. A per se conflict of interest arises only when a lawyer personally represents a client in a representation directly adverse to a client represented by the lawyer's spouse. The governing S.C. Rule of Professional Conduct 1.8(i) reads:

A lawyer related to another lawyer as parent, child, sibling or spouse shall not personally represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.

Because the South Carolina rule inserts "personally" in the model rule, the principle of imputed disqualification does not apply to any lawyer in the County X Public Defender office, such as, Richard Roe, with whom Jane Doe does not work as an investigator.

Although Jane Doe's employment is not per se improper, the possibility of conflict nonetheless exists. Potential conflict arises, for example, where a Public Defender client happens to be subject to both narcotics and other charges. In such instances full disclosure of the potential conflict to all concerned is advisable. "In any situation where a client or potential client might question the loyalty of the lawyer representing him, the situation should be fully explained to the client and the question of acceptance or continuance of employment left to the client for decision." ABA Formal Opinion 340.

2. County X Public Defender Office procedures concerning assignment and representation of clients prosecuted by County X sheriff department are sufficient to avoid violation of ethical responsibility for nonlawyer assistants. Lawyers in the Public Defender's Office have a duty to make reasonable efforts to ensure that the office "has in effect measures giving reasonable assurance" that the conduct of nonlawyer assistants such as Jane Doe is compatible with the lawyers' professional obligations. Rule 5.3 (a). Lawyers in the Public Defender's office with immediate supervision over Jane Doe are obliged to make reasonable efforts to ensure that later conduct is compatible with their professional obligations as lawyers. Rule 5.3 (b). The obligations owed all clients involve confidentiality, zealous advocacy and independent professional judgment. In other words, Public Defender office lawyers must see to it by means of office procedures and direct supervision that Jane Doe preserves client confidences and that she is not influenced in her work by her spouse's employment. To carry out these responsibilities, her clients and their files have been segregated from those under investigation by her spouse's office and all office personnel have been instructed to avoid any discussion of narcotics division cases.

However elaborate and effective these procedures may be, lawyers in the Public Defender's Office remain nonetheless responsible for conduct they themselves order or ratify, as well as for failure to avoid or mitigate in timely fashion any consequences of conduct by Jane Doe that threatens client interests. 5.3 (c). In the event that a conflict should arise, any lawyer knowing of the conflict should see to it that an investigator other than, and not supervised by Jane Doe, is given responsibility for the case as well as other reasonable remedial actions.