Can a former public defender, now in private practice, take a court appointment in a PCR matter for a defendant the PD office represented while the lawyer worked there?

Plain-English summary

A lawyer now in private practice was appointed to represent a criminal defendant in a post-conviction relief (PCR) matter. The defendant had been represented by the county public defender's office while the lawyer worked there (from initial arrest to disposition), but the lawyer himself was never the appointed attorney for that defendant. The question was whether a conflict required appointing a different attorney.

The committee treated a public defender's office as a law firm for imputing disqualification under Rule 1.10. It noted prior opinions: a single PD office cannot represent co-defendants in the same matter, with disqualification imputed across the office (Op. 92-21), but where a PD maintains a separate office with separate employees and a separate caseload, imputed disqualification under Rule 1.10 does not exist (Op. 93-01). In Op. 93-01, the committee found that as long as no shared information materially adverse to the client existed, a PD was not barred from representing a former office client in a PCR hearing.

The committee, noting it does not decide questions of law, listed factors courts consider: whether PD-office attorneys are like private attorneys in one firm, whether separation of facilities and personnel protects confidential information, and whether access to confidential information would impair effective representation. It noted that under Rule 1.11 a former government attorney is disqualified where personally and substantially involved or where he holds confidential information usable against the adverse party, but observed that here the adverse party was the state as prosecutor, not the PD office. The committee concluded that with sufficient separation of duties, caseload, and employees, automatic per se disqualification would not apply.

Currency note

This opinion was issued in 1996, 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 Treat this page as historical context, not current guidance.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 a former public defender automatically disqualified from a PCR case for a past office client?

A: The committee concluded no, not automatically. If duties, caseload, and employees were sufficiently separated between the former PD and the office's representation, per se disqualification does not apply.

Q: How is a public defender's office treated for conflicts?

A: The committee treats a PD office as a law firm for imputing disqualification under Rule 1.10, while recognizing that a separate office with separate staff and caseload can avoid imputation.

Q: Who is the adverse party in the PCR matter?

A: The committee observed that the adverse party is the state as prosecutor, not the PD office, which bears on the Rule 1.11 analysis of a former government attorney.

Background and rules framework

The opinion applied Rule 1.10 (imputation of conflicts within a firm, applied to a public defender's office) and Rule 1.11 (successive government and private employment), each corresponding to the like-numbered Model Rule, drawing on the committee's prior PD-office opinions and out-of-state case law.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.10 / Model Rule 1.10: imputation of conflicts within a firm.
• South Carolina RPC 1.11 / Model Rule 1.11: special conflicts for former government officers and employees.

Cases:

• Graves v. State, 619 A.2d 123 (Md. Ct. Spec. App. 1993).
• State v. Bell, 447 A.2d 525 (N.J. 1982).
• People v. Wilkins, 268 N.E.2d 756 (N.Y. 1971).

Other opinions cited:

• S.C. Bar Ethics Adv. Op. 92-21: a PD office cannot represent co-defendants.
• S.C. Bar Ethics Adv. Op. 93-01: separate PD office avoids imputed disqualification.

See also

• SC Bar Ethics Op. 97-12: Former Solicitor Conflict
• SC Bar Ethics Op. 96-21: Conservator as the Ward's Lawyer

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-96-22/

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 96-22

An attorney is appointed to represent a criminal defendant in a post-conviction relief (PCR) matter. The defendant was represented by the county public defender's (PD) office during the time the attorney was employed with the same office. The attorney was employed at the PD's office from the time of the defendant's initial arrest to the disposition of the case on the merits. He currently in private practice. During the time he was with the PD's office, he was not the attorney appointed to represent the defendant.

Question:
Does a conflict exist such that a different attorney should be appointed to represent the criminal defendant in this PCR matter?

Summary:
If there is sufficient separation of duties, case load, and employees between the former PD and the PD office's representation of the defendant that is the subject of the PCR proceeding, then automatic per se disqualification would not apply.

Opinion:
In 1992, this committee issued Advisory Opinion (AO) 92-21 stating that a PD's Office is treated as a law firm for purposes of imputing disqualification under SCACR 407, para. 1.10 (hereafter "Rule".) In the case of co-defendants in the same criminal matter, the Committee viewed a single PD's office could not represent more than one defendant and disqualification would be imputed to other members of the same office. In March, 1993, the Committee in AO 93-01 indicated that when a PD maintains a separate office with separate employees and a separate case load, imputed disqualification under Rule 1.10 would not exist.

In AO 93-01, the question was not one involving a new client but rather a former client of the PD's office being represented in a PCR hearing by another attorney in the office. The Committee felt that as long as there was no shared information among PDs that would be materially adverse to the client, the PD should not be barred by conflict of interest in representing the former client in a PCR hearing. This committee has concluded that a PD's office may be equated to a law firm.

Although this committee does not issue opinions on questions of law, the reasoning of various courts on issues involved in this inquiry may be instructive. Factors to be considered would include:

1) Whether attorneys employed by the same PD's office can be considered the same as private attorneys associated in the same law firm;

2) Whether the protection of confidential information can be effected by the separation of office facilities and personnel; and

3) Whether as a consequence of having access to confidential information, a PD will refrain from effectively representing a defendant.

Graves v. State (Maryland), 619 A. 2d 123, 9 Lawyer's Manual Prof. Conduct 5 (Md. Ct. Spec. App. 1993); State (New Jersey) v. Bell, 447 A. 2d 525 (N. J. Sup. Ct. 1982); People (New York) v. Wilkins, 268 N. E. 2d 756 (N. Y. Ct. App. 1971).

Under Rule 1.11, a former government attorney is disqualified from representing a private party concerning a matter in which he or she as a government employee was personally and substantially involved. The attorney would also be disqualified from participating in a matter about which he or she has confidential information that can be used to the disadvantage of the adverse party. However, in this case, it would appear the adverse party is not the PD's office but rather the state as prosecutor.

Therefore, if there is sufficient separation of duties, case load, and employees between the former PD and the PD office's representation of the defendant that is the subject of the PCR proceeding, then automatic per se disqualification would not apply.