Can a lawyer who works part-time as a special prosecutor represent civil plaintiffs against a tortfeasor the same solicitor's office is prosecuting, and does resigning cure the conflict?

Plain-English summary

A lawyer in private practice who also worked part-time as a special prosecutor in the solicitor's office had been retained by plaintiffs in personal-injury and death cases where the tortfeasor had been arrested or indicted and the criminal cases were being handled by that same office. The lawyer asked whether this created a conflict, even if he stayed removed from the criminal cases, and whether resigning the special-prosecutor role would resolve it.

On the first question, the committee concluded the lawyer should not represent the civil party while serving in the office, applying Rule 1.7 (representation materially limited by responsibilities to another client). Quoting its earlier Opinion 84-19, it reasoned that a part-time prosecutor handling the civil case would find it difficult not to use information in the solicitor's files, and that decisions in the criminal case could materially affect the civil suit's outcome, creating an opportunity for advantage. The committee likened its concern to In re Jolly, 269 S.C. 668, 239 S.E.2d 490 (1977), where the South Carolina Supreme Court held that S.C. Code Ann. 17-1-20, barring prosecuting officers from acting as civil counsel for either party, protects the public interest. It concluded that not actually participating in the prosecution does not cure the conflict, because of the information accessible in the office.

On the second question, the committee turned to Rule 1.11 (successive government and private employment). Rule 1.11(a) bars representing a private client in a matter in which the lawyer participated personally and substantially as a public officer or employee absent the agency's consent after consultation. Citing Opinion 95-05, it noted the restriction reaches beyond direct conflicts, and that the rule's central concern (echoed in Rule 1.11(b)) is unfair access to confidential government information about an adversary obtainable only through government service. The committee concluded a former special prosecutor may represent the victims in the civil suit if he consults the solicitor's office and obtains consent, but if he had access to confidential information that could yield an unfair advantage, he may be prohibited from the representation.

Currency note

This opinion was issued in 1997, 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 part-time special prosecutor handle a civil case against someone the solicitor's office is prosecuting?

A: The committee concluded no, while serving in the office. Under Rule 1.7, access to the office's files and the criminal case's potential effect on the civil suit materially limit the representation, even if the lawyer stays out of the prosecution.

Q: Does resigning the prosecutor position fix the conflict?

A: Not automatically. Under Rule 1.11, the former prosecutor needs the solicitor's office's consent after consultation if he participated personally and substantially, and may still be barred if he holds confidential government information that could disadvantage the defendant.

Q: What was the committee's concern about the solicitor's files?

A: Per the opinion, a lawyer with access to the solicitor's files could not adequately serve the civil clients without using that information, and decisions in the criminal case could materially affect the civil outcome.

Background and rules framework

The opinion applied South Carolina RPC 1.7 (concurrent conflicts; material limitation) and RPC 1.11 (successive government and private employment), corresponding to the like-numbered Model Rules. Rule 1.11(a) requires the government agency's consent for matters in which the lawyer participated personally and substantially; Rule 1.11(b) restricts use of confidential government information against a person to that person's material disadvantage. The committee also referenced S.C. Code Ann. 17-1-20 as construed in In re Jolly.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7 / Model Rule 1.7: concurrent conflicts; material limitation.
• South Carolina RPC 1.11(a), (b) / Model Rule 1.11: successive government and private employment; confidential government information.

Statutes:

• S.C. Code Ann. 17-1-20: prosecuting officers may not act as civil counsel for either party.

Cases:

• In re Jolly, 269 S.C. 668, 239 S.E.2d 490 (S.C. 1977), public-interest basis for barring prosecutors from related civil representation.

Other opinions cited:

• S.C. Bar Ethics Op. 84-19: part-time prosecutor's use of solicitor's office information.
• S.C. Bar Ethics Op. 95-05: Rule 1.11 reaches beyond direct conflicts.

See also

• SC Bar Ethics Op. 02-03: Ex-Solicitor's Civil Case
• SC Bar Ethics Op. 99-10: Assistant Solicitor's Firm

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-41/

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 97-41

An attorney who is in private practice and works part-time as a special prosecutor with the solicitor's office has been retained by plaintiff on some personal injury and death cases where the tortfeasor has been arrested and/or indicted and the cases are being handled by the solicitor's office.

QUESTIONS:
(1) Does this attorney's part-time service as a special prosecutor create a conflict in cases where the tortfeasor is being prosecuted by the Solicitor's office where the attorney works? Even if the attorney stays removed from those cases?
(2) Would the conflict be resolved if the attorney resigned from the job as special prosecutor?

SUMMARY:
Absent resignation, an attorney who works part-time as a special prosecutor should not represent a party in a civil action where the tortfeasor is being prosecuted by the solicitor's office where the attorney works. If the attorney does resign, the former solicitor may not file suit for the private client against the alleged tortfeasor in the county where the attorney served if the attorney participated personally and substantially in a matter concerning the client and the alleged tortfeasor while a prosecutor unless the solicitor's office consents after consultation. Further, the attorney may be barred from this representation because of information to which the attorney had access.

OPINION:
(1) Does this attorney's part-time service as a special prosecutor create a conflict in cases where the tortfeasor is being prosecuted by the Solicitor's office where the attorney works? Even if the attorney stays removed from those cases?.

It is the opinion of this committee that an attorney who works part-time as a special prosecutor for the Solicitor's office should not represent a party in a civil action where the tortfeasor is being prosecuted by the solicitor's office where the attorney works.

Since the inquirer is currently the part-time special prosecutor for the solicitor's office, the situation is governed by Rule 1.7.

Rule 1.7 provides "[a] lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client . . . ." This committee has answered this question in the past by stating "[i]t would be difficult for the [part-time prosecutor] handling the civil case not to utilize any information which was in the Solicitor's office files. If the [part-time prosecutor] handling the civil case had access to information in the Solicitor's office files, he could not adequately perform his duty to his clients if he did not use it." S.C. Bar Ethics Op. No. 84-19.

Decisions which must be made in a solicitor's office concerning the criminal case could have a material effect on the outcome of the civil suit. To the extent a lawyer in the solicitor's office may influence decisions in the criminal case, there is a conflict because advantage may then be gained in the civil matter. The concern of this committee is similar to that of the South Carolina Supreme Court in the case of In re Jolly, 269 S.C. 668, 239 S.E.2d 490 (1977). The court held that SC Code Ann.§17-1-20 which provides that prosecuting officers shall not act in a civil case as counsel for either party, is essential for the protection of the public interest. The fact that the solicitor did not actually participate in the prosecution does not cure the conflict. Therefore, even if the attorney in the present situation stayed removed from the criminal prosecution, his part-time service with the solicitor's office creates a conflict because of the information which could be accessed in that office.

(2) Would the conflict be resolved if the attorney resigned from the job as special prosecutor?

SCRPC 1.11 concerns successive government and private employment. It provides:

(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a 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 government agency to ascertain compliance with the provisions of this Rule.

The restriction in this rule goes beyond direct conflicts of interest. S.C. Bar Ethics Op. No. 95-05. Rule 1.11 prohibits an attorney without consent from representing a private client in connection with "a matter" in which the lawyer participated personally and substantially as a public officer or employee. Rule 1.11(d) defines "matter."

A primary concern of this rule is to prevent a lawyer from exploiting public office for the advantage of a private client. The comment to Rule 1.11 points out that "unfair advantage could accrue to the private client by reason of unfair access to confidential government information about the client's adversary obtainable only through the lawyer's government service." Thus, the lawyer must make sure Rule 1.11(b) does not apply. Rule 1.11(b) states:
Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.
Therefore, a former solicitor may represent the victims in a civil suit against the alleged tortfeasor if the attorney has consulted with the solicitor's office and obtained consent. On the other hand, if the former solicitor had access to confidential information which could lead to an unfair advantage, the attorney may be prohibited from the representation.