Can a lawyer who, as a non-attorney family-court clerk's employee, once helped get a bench warrant against a delinquent father now represent the mother seeking his child-support arrearage?

Plain-English summary

Before entering private practice, the lawyer had worked (not as an attorney) in the family court division of a county clerk of court's office, primarily enforcing child-support orders. In one case, he assisted the clerk and county sheriff in issuing a bench warrant for a father allegedly delinquent on support; his only contribution was locating the father and giving the sheriff a physical description. Now in private practice, he was asked to represent the mother of that father's child in the pending family-court action to determine the support arrearage. The questions were whether he could represent her given his prior involvement, and whether he could represent other similarly situated clients.

The committee analyzed the matter under Rule 1.11 (successive government and private employment), whose purpose, per its comment, is to prevent a lawyer from exploiting public office for a private client's advantage, including through unfair access to confidential government information about an adversary. Under Rule 1.11(a), disqualification requires that the lawyer's prior participation have been both personal and substantial. The committee found that although the lawyer was personally involved in issuing the bench warrant, his role did not appear "substantial," which the Rules' terminology section defines as "a material matter of clear and weighty importance."

Under Rule 1.11(b), the committee found the only information the lawyer acquired (the father's address and physical description) was not confidential government information within Rule 1.11(e), and even if it were, it would not materially disadvantage the father in this case. Concluding the lawyer had gained no knowledge that could give the mother an unfair advantage, the committee found he may represent her, and may represent other similarly situated clients provided his representation does not violate Rule 1.11.

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 Treat this page as historical context, not current guidance.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: Does prior government work on a matter always disqualify a lawyer from later private representation in it?

A: No. Under Rule 1.11(a), the committee explained disqualification requires participation that was both personal and substantial; it found this lawyer's role (locating the father, giving a description) was not substantial.

Q: Did the lawyer's earlier access to the father's information bar the representation?

A: No. The committee found the father's address and physical description were not confidential government information under Rule 1.11(e), and would not materially disadvantage him even if they were.

Q: Can the lawyer take other similar child-support cases?

A: The committee concluded yes, provided each representation continues to comply with Rule 1.11.

Background and rules framework

The opinion applied South Carolina RPC 1.11 (successive government and private employment), corresponding to Model Rule 1.11. Rule 1.11(a) disqualifies a lawyer who participated personally and substantially in a matter as a public officer or employee absent the agency's consent; Rule 1.11(b) restricts use of confidential government information, defined in Rule 1.11(e), to a person's material disadvantage. The committee applied the Rules' terminology definition of "substantial."

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.11(a), (b), (e) / Model Rule 1.11: successive government and private employment; confidential government information; "substantial" participation.

See also

• SC Bar Ethics Op. 00-18: Ex-Prosecutor Conflicts
• SC Bar Ethics Op. 05-01: Former Prosecutor's Civil Case

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-43/

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 97-43

Attorney formerly worked in the Family Court division of a county clerk of court's office, but not as an attorney. His primary duties with the Family Court included enforcement of outstanding child support orders. In one case, Attorney assisted the clerk of court and the county sheriff with the issuance of a bench warrant for the arrest of Deadbeat Dad, who was allegedly delinquent on his child support payments. The only assistance provided by Attorney in the matter was locating the whereabouts of Deadbeat Dad and providing a physical description to the county sheriff. Attorney is now in private practice. A potential client ("Client") is the mother of the child to whom Deadbeat Dad is obligated to pay child support. Client has requested Attorney to represent her in the matter pending in Family Court to determine Deadbeat Dad's child support arrearage.

QUESTIONS:

1. May Attorney represent Client in the pending action to determine Deadbeat Dad's child support arrearage, in light of his previous participation in the matter?
2. May Attorney represent other similarly situated clients in the Family Court?

SUMMARY:
Attorney may represent Client in the matter involving Deadbeat Dad pending before the Family Court as Attorney's previous participation, although personal in nature, was not substantial under Rule 1.11 (a). Furthermore, Attorney did not obtain any confidential government information which could be used to the material disadvantage of Deadbeat Dad. Accordingly, Attorney may represent Client, and all other similarly situated clients, as long as Attorney's representation continues to comply with Rule 1.11.

OPINION:
The rules on successive employment contained in Rule 1.11 of the Rules of Professional Conduct apply to this situation. Rule 1.11 provides in pertinent part:

(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 enable it to ascertain compliance with the provisions of this Rule.
(b) 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.

The Comment to Rule 1.11 provides that the purpose of the rule is to prevent an attorney from exploiting public office for the advantage of a private client. The Comment further cautions that, when an attorney moves from a public agency to private practice, "the risk exists that power or discretion vested in public authority might be used for the special benefit of a private client. . . (and) unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service."

We see no violation of Rule 1.11 here. First, in regards to Rule 1.11(a), Attorney's participation in the matter, while employed by the Family Court division, must have been personal and substantial. Although Attorney was personally involved in the issuance of the bench warrant by locating the whereabouts and providing a description to the county sheriff of Deadbeat Dad, it does not appear that he was "substantially" involved in the matter. According to the Terminology section of the Rules of Professional Conduct, the term "substantial", when used in reference to degree or extent "denotes a material matter of clear and weighty importance." The conduct of Attorney does not appear to qualify as "substantial" under this definition.

Pursuant to Rule 1.11(b), Attorney is prohibited from representing Client only if he obtained confidential government information about Deadbeat Dad while employed by the family court division and this information, if used, resulted in a material disadvantage to Deadbeat Dad. It appears that the only information Attorney acquired about Deadbeat Dad, during his employment with the Family Court division, was Deadbeat Dad's address and physical description. This information is clearly not confidential government information, within the meaning of that term described at Rule 1.11(e). But, even if it was, such information would not appear to result in a material disadvantage to Deadbeat Dad, in this particular case.

It appears that Attorney A has gained no knowledge or information about Deadbeat Dad that could potentially provide Client with an unfair advantage or other special benefit during the proceedings to determine Deadbeat Dad's child support arrearage. Attorney may represent Client in this matter. In addition, Attorney may represent other similarly situated clients provided Attorney's representation does not violate Rule 1.11.