If a lawyer's firm includes an assistant solicitor, can another lawyer in the firm bring a wrongful-death suit against the person the solicitor's office is prosecuting for the same death?

Plain-English summary

John Doe practiced in a firm that included an Assistant Solicitor. After a person was killed by the wrongful act of another, the Solicitor's office prosecuted the killer, and the deceased's family asked John Doe to bring the wrongful-death case against the alleged perpetrator. The committee was asked whether John Doe was disqualified.

The committee concluded he was. It relied on its Opinion 97-41, which held that a part-time special prosecutor was barred by Rule 1.7(b) from handling a wrongful-death case being prosecuted by the Solicitor's office where the attorney worked, reasoning that the attorney might have access to confidential information in the office's files and might be positioned to influence office decisions affecting the civil case. It also cited In re Jolly, where the Supreme Court held a Solicitor violated S.C. Code Ann. § 17-1-20 by representing a private client in a matter his office (though not he personally) was prosecuting. So the Assistant Solicitor here was personally disqualified.

The difference was that the inquiry involved a lawyer in the Assistant Solicitor's firm rather than the Assistant Solicitor personally. Under Rule 1.10(a), a firm may not represent a client when any one lawyer in it would be prohibited under Rules 1.7, 1.8(c), 1.9, or 2.2, so the Assistant Solicitor's disqualification was imputed to John Doe. Although Rule 1.10(c) allows waiver of imputed disqualification under the conditions of Rule 1.7, the committee applied the comment's test (a lawyer cannot seek consent where a disinterested lawyer would conclude the client should not agree). Even though the risk to confidentiality and loyalty was reduced because the Assistant Solicitor was not personally involved in either case, the risk remained, so the committee concluded a disinterested lawyer would conclude John Doe could not undertake the representation, making the conflict non-waivable. The committee noted that because the Assistant Solicitor was a current, not former, government employee, Rule 1.11 did not apply.

Currency note

This opinion was issued in 1999, 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 partner of an assistant solicitor sue the person the solicitor's office is prosecuting?

A: The committee concluded no: the assistant solicitor is personally disqualified from such a civil case, and under Rule 1.10(a) that disqualification is imputed to the firm, so the partner cannot take the wrongful-death case.

Q: Why is the assistant solicitor personally disqualified?

A: Following its Opinion 97-41, the committee reasoned the assistant solicitor might have access to confidential files and could influence office decisions affecting the civil case, a Rule 1.7(b) conflict, reinforced by In re Jolly and S.C. Code Ann. § 17-1-20.

Q: Could the client waive the conflict?

A: The committee concluded no: although Rule 1.10(c) allows waiver under Rule 1.7's conditions, a disinterested lawyer would conclude the client should not agree, so the conflict is not waivable.

Background and rules framework

The opinion interpreted South Carolina RPC 1.7(b) (a current prosecutor's conflict in a related civil case), 1.10(a) (imputation of that conflict to the firm), and 1.10(c) (waiver only under Rule 1.7's conditions and the disinterested-lawyer test), corresponding to the like-numbered Model Rules, with S.C. Code Ann. § 17-1-20. The committee relied on its Opinion 97-41 and on In re Jolly, and noted Rule 1.11 did not apply to a current government employee.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7(b) / Model Rule 1.7: a prosecutor's conflict in a related private civil matter.
• South Carolina RPC 1.10(a), (c) / Model Rule 1.10: imputed disqualification and waiver under Rule 1.7.

Statutes:

• S.C. Code Ann. § 17-1-20 (prosecuting officer shall not act in a civil case as counsel for either party).

Cases:

• In re Jolly, 269 S.C. 668, 239 S.E.2d 490 (S.C. 1977).

Other opinions cited:

• S.C. Bar Ethics Advisory Op. 97-41 (part-time special prosecutor barred from a related civil case).

See also

• SC Bar Ethics Op. 02-02: Part-Time Juvenile Solicitor
• SC Bar Ethics Op. 02-03: Ex-Solicitor's Civil Case
• SC Bar Ethics Op. 11-02: County Attorney for Defendants

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-99-10/

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 99-10

Facts
John Doe is an attorney practicing in a firm which has as one of its members an Assistant Solicitor. A person is killed by the wrongful act of another. The Solicitor's office is prosecuting the individual who killed the person. The family of the deceased has asked John Doe to take the wrongful death case against the alleged perpetrator of the crime.

Question
Is John Doe disqualified from handling the wrongful death case?

Summary
John Doe is disqualified under the Rules of Professional Conduct from handling the wrongful death case. In Opinion #97-41 the Committee concluded that a part-time special prosecutor could not handle a civil matter when the Solicitor's office was handling a criminal case based on the facts involved in the civil case. Based on the authority of that opinion, the Assistant Solicitor is personally disqualified from handling the wrongful death case. The disqualification of the Assistant Solicitor is imputed to John Doe under S.C. Rule 1.10(a). This disqualification is not waivable because "a disinterested lawyer would conclude that the client should not agree to the representation." Rule 1.7, comment.

Opinion
In Ethics Adv. Op. #97-41, this Committee advised that a part-time special prosecutor with the Solicitor's office was prohibited under S.C. Rule 1.7(b) from handling a wrongful death case that was being prosecuted by the Solicitor's office where the attorney works. The Committee reasoned that the attorney might have access to confidential information in the files of the Solicitor's office and might be in a position to influence decisions by the Solicitor's office that could have an impact on the civil case. The Committee also referred to In re Jolly, 269 S.C. 668, 239 S.E.2d 490 (1977), where the Supreme Court held that a Solicitor violated S.C. Code Ann. §17-1-20 (Prosecuting officer shall not accept fees or rewards, nor act in a civil case as counsel for either party) when the Solicitor represented a private client in a matter that was being prosecuted by his office, but not by him personally.

The fact situation in this opinion differs from the one in Opinion 97-41 because it involves a lawyer in the Assistant Solicitor's firm rather than the Assistant Solicitor personally. Rule 1.10(a), dealing with imputed disqualification, provides as follows:

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.2.

Rule 1.10(c) provides, however, for waiver of the imputation of disqualification under §1.10(a):

(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.

Under Rule 1.7 a conflict of interest is subject to consent by the affected clients if the "lawyer reasonably believes the representation will not be adversely affected." The comment to Rule 1.7 provides a test for when client consent may be obtained: "[W]hen a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent." Although the risk of violation of either the duty of confidentiality or loyalty is reduced if the Assistant Solicitor is not personally involved in either the criminal or the civil case, the risk is still present. Accordingly, the Committee is of the opinion that a disinterested lawyer would conclude that John Doe could not undertake this representation because of his partner's employment by the Solicitor's Office.

1 Since the Assistant Solicitor is currently employed in the Solicitor's office rather than a former government employee, Rule 1.11 does not apply to this situation. See S.C. Ethics Adv. Op. 97-41.