South Carolina Bar Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the South Carolina Bar, with full citations and source links on every page.
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When a lawyer works for a state enforcement agency, can the same office both prosecute a complaint and advise the agency panel that decides it, and who decides whether to appeal?
An agency lawyer who was substantively involved in investigating a complaint should not later serve as advice counsel to the panel adjudicating it. The decision whether to seek reconsideration or appe…
Can a lawyer serve as a contract prosecutor for a municipality whose policy forbids any dismissals or plea negotiations, eliminating prosecutorial discretion?
No. A municipal policy of no dismissals and no negotiations is inconsistent with Rule 3.8(a), which requires a prosecutor to refrain from prosecuting charges not supported by probable cause; prosecuto…
Can a lawyer represent clients against the agency where the lawyer's spouse used to work as agency counsel, when the spouse has left and they practice in different firms?
Yes. A lawyer may represent or serve as guardian for clients adverse to the Department of Social Services even though the lawyer's spouse formerly litigated those cases for DSS; Rule 1.8(k) does not a…
Can a furloughed government lawyer defend her own agency against other employees' furlough complaints, and may she do so if she is also pursuing her own furlough complaint?
She may defend the agency from furlough complaints if she reasonably believes she can provide competent and diligent representation under Rule 1.7(b)(1), even though her own furlough creates a waivabl…
May a lawyer who works as a federal investigator contact a represented target of an investigation directly, even though the target is represented by counsel?
Yes. Rule 4.2 bars contact with a represented person only by a lawyer who is 'representing a client.' A federal investigator who happens to be a lawyer is not representing a client in that role, so Ru…
May a part-time county attorney represent criminal defendants in the same county, where the sheriff's office officers investigate those cases?
Only if he gives the County Sheriff's Office no legal advice on criminal matters. If the county attorney provides any criminal-law advice to the sheriff's office, representing criminal defendants in t…
May a lawyer keep practicing in city court when his firm's senior partner is the mayor who sits on the council that appoints the city court judges?
Yes. The Rules of Professional Conduct do not prohibit the lawyer from practicing in city court; ordinary advocacy is not barred and the conflict rules (1.7 through 1.11) do not apply on these facts. …
Can a lawyer be a certified police officer with arrest powers and also serve as the city prosecutor for cases made by that department?
The opinion finds no per se ethical prohibition, but the lawyer must adhere to Rules 3.7, 3.8, 5.2(a), and 5.4(c), and the prosecution of all cases must remain in the lawyer's full discretion. Problem…
Can a prosecutor offer to dismiss criminal charges in exchange for the defendant releasing civil claims against the police?
No. The opinion concludes a solicitor cannot use the criminal process to obtain a favorable result for a third party in a civil action; conditioning a dismissal on the defendant's release of civil cla…
Can a former prosecutor work on a civil case against an institution they investigated as a public official, and can the new firm still take the case?
No, not without the government agency's consent: a former deputy solicitor who personally and substantially investigated a boys' home while prosecuting an abuse case is barred by Rule 1.11(a) from wor…
What must a public defender do when assigned a caseload far larger than national standards recommend?
A public defender may not carry a caseload that forces violations of the duties of competence, diligence, and communication; national caseload numbers are a factor but not determinative, and a lawyer …
Must a prosecutor disclose to criminal defendants that a police-officer witness lied to superiors during an internal investigation?
Yes. Under Rule 3.8(d), a prosecutor who knows an officer failed to disclose the truth during an official department investigation must reveal that information, because it bears on the officer's credi…
Can a military prosecutor try a defendant for whom the prosecutor once prepared a will and estate-planning documents in an unrelated matter?
The committee concluded yes: under Rule 1.9 the prior estate-planning work is not substantially related to the later criminal charges and the prosecutor learned no confidential information bearing on …
Can a former deputy solicitor who prosecuted a defendant for arson later represent that same person in an insurance claim arising from the same fire, and can his new firm continue the matter?
The committee concluded the former prosecutor may not represent the client in the civil insurance matter arising from the same facts he prosecuted, because doing so would exploit his former public off…
If one partner becomes a part-time juvenile solicitor, is his law partner barred from defending criminal clients in General Sessions Court?
The committee concluded the part-time juvenile solicitor has no Rule 1.7 conflict, because his separate office, distinct juvenile caseload, and different court make the juvenile solicitor's office a s…
Can a prosecutor use evidence a colleague obtained through a criminal subpoena issued before any arrest warrant or indictment?
The committee concluded that if procedural law does not allow a criminal subpoena duces tecum before an arrest warrant or true-billed indictment, the prosecutor who obtained it would violate Rule 8.4(…
When a former prosecutor now works for a prosecutor-training nonprofit and takes criminal-defense appointments, does he have to disclose that history or check old employers for conflicts?
The committee concluded the lawyer's current training-organization job and his bare status as a former prosecutor did not, by themselves, require disclosure to defense clients; a conflict arises under…
Can a city prosecutor forbid police or public safety officers from talking to defense lawyers about pending cases?
The committee concluded a city solicitor cannot prohibit criminal defense attorneys from contacting and discussing cases with public safety officers, or vice versa, because in criminal matters the sol…
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?
The committee concluded the lawyer is disqualified: an assistant solicitor cannot personally handle a civil case arising from a crime his office is prosecuting (risk of access to confidential files an…
Can a lawyer under contract to a sheriff testify as a witness at preliminary hearings from the sheriff's files?
The committee concluded the lawyer may act solely as a witness at preliminary hearings, which the Rules do not prohibit, but if the lawyer acts as both witness and the sheriff's advocate at a hearing …
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?
The committee concluded the lawyer may represent the mother, because his prior government participation (locating the father and giving a description for a bench warrant) was personal but not substant…
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?
The committee concluded that, while serving, the part-time special prosecutor should not represent a civil party against a defendant the solicitor's office is prosecuting, because access to the office…
Must a former South Carolina solicitor get the State's consent before representing a criminal defendant who was indicted during the solicitor's term, even if the solicitor's role in that case was minimal?
The committee concluded that because all indictments during the former solicitor's term were approved under his supervision, a Rule 1.11 conflict arises even where his involvement was minimal, but the…
Can a chief public defender also serve as counsel to a school district, and represent juveniles facing both school discipline and Family Court?
The committee concluded there is no per se bar to serving as both chief public defender and school district counsel, with conflicts handled case by case; but when the public defender is disqualified, …
Can a municipal attorney who advised staff on a zoning decision also advise the zoning board hearing the appeal of that decision?
The committee concluded no Rule prohibits a municipal attorney from advising the municipality at different stages of one zoning matter, because under Rule 1.13 the client is the municipality; other la…
Can a former prosecutor now in private practice represent crime victims in civil suits against defendants he was prosecuting in office?
The committee concluded that under Rule 1.11 the former solicitor may not represent a private client in connection with a matter in which he participated personally and substantially as a prosecutor u…
Can a former government lawyer put the state seal or the scales of justice on a private-practice business card?
The committee concluded that using the scales of justice on a card is appropriate because it accurately signals a legal professional, but using the state seal would be misleading under Rule 7.1 by sug…
Can a state agency staff lawyer also sit as a hearing officer on the panel that reviews protest matters involving his own agency?
The committee concluded a staff lawyer may not serve as a panel hearing officer while continuing to represent the agency, because the duty of impartiality conflicts unwaivably with zealous advocacy un…
Can a law firm whose lawyers volunteer to prosecute in a solicitor's office also defend clients being prosecuted by that same office?
The committee concluded the firm may not, even where no firm member would prosecute that client, even with screening, and even with both the solicitor's and client's consent, because the firm's ongoin…
Can a lawyer take court-appointed indigent criminal defense in one circuit when a firm member is a part-time solicitor in a different circuit?
The committee concluded it is not a violation for a firm's lawyers to be court-appointed to defend indigent criminal defendants in a different circuit from where a firm member serves as a part-time so…
Can a lawyer who contracts to represent one state agency sue a different, unrelated state agency on behalf of a town?
The committee concluded the lawyer is not prohibited from representing the town against the Department of Corrections, because that agency and the Social Services agency the lawyer contracts with are …
Can a lawyer reveal confidential client communications to defend himself in a Social Security Administration investigation of his own conduct?
The committee concluded that under Rule 1.6(b)(2) the lawyer may reveal confidential information as necessary to respond to allegations about his representation in the SSA proceeding, limited to what …
When a government agency lawyer learns from opposing agency counsel that a cleared employee was actually guilty, what may the agency lawyer do with that information?
The committee concluded the agency lawyer, as counsel for the organization under Rule 1.13(b), may proceed as reasonably necessary in the organization's best interest, and should also weigh whether th…
If a lawyer contracts to represent a state agency in one county, can the lawyer's firm be appointed against that agency in another county?
The committee concluded that because the statewide agency is the client, neither the contract attorney nor any member of the firm should represent a defendant or guardian ad litem in the agency's case…
Can a lawyer privately review and comment on a case a judge has under advisement when the lawyer represents no party in it?
The committee concluded the rules do not prohibit a lawyer from complying with a judge's request to review a pending matter, and the lawyer has no obligation to notify the parties' counsel because not…
Can a law firm hire a sitting probate judge to practice law part-time outside of court hours?
The committee concluded a law firm may not hire a sitting probate judge as a part-time lawyer, because current law and Canon 4(F) of the Code of Judicial Conduct treat the probate judgeship as full-ti…
Can a part-time city judge, or a member of the judge's firm, also serve as part-time city attorney if that attorney does not prosecute in city court?
The committee concluded a part-time city judge may not also serve as part-time city attorney, because the appearance of impropriety and overlapping duties bar it, and that imputed disqualification und…
Can a partner of a municipality's attorney represent both the attorney and the municipality as co-defendants in the same lawsuit?
The committee concluded that co-defendants may be represented together, but only if the lawyer reasonably believes neither client's representation will be adversely affected and both consent after con…
Can a law firm sue a municipality when one of its lawyers sits on that municipality's city council?
The committee concluded that Rules 1.11 and 1.7(b) could preclude the representation; the firm may proceed only if the client consents after notice and the council-member lawyer is screened, with writ…
If a lawyer is retained by a county to prosecute magistrate-court cases, can he still defend criminal clients in the county's municipal courts?
The committee concluded the lawyer could defend clients in the county's municipal courts, because those charges are brought by municipal police rather than the county whose cases he prosecutes, though…
Can a public defender's office employ as chief investigator the spouse of a sheriff's narcotics investigator?
The committee concluded the public defender's office could employ the investigator's spouse so long as she did not assist or have access to information from lawyers adverse to parties her spouse's div…
Can a lawyer who, as an elected official, shares the power to appoint a board's members keep representing that board in litigation?
The committee concluded the Rules of Professional Conduct do not prohibit the lawyer from representing a commission whose members he shares the power to appoint, so he may continue representing it, th…
Can a former judicial law clerk represent a client on appeal in a case the clerk worked on while clerking for the trial judge?
The committee concluded that Rule 1.12(a) bars a former law clerk from representing a client in a matter in which he participated personally and substantially as a clerk unless all parties consent aft…
Must a lawyer-legislator warn clients up front that the lawyer's representation of them before state agencies will be publicly disclosed?
The committee concluded that no provision of the Rules requires a lawyer-legislator to tell a client that representation before a state agency will ultimately be made public, because such representati…
Can a part-time county public defender also represent criminal defendants in other counties?
The committee concluded there is no apparent conflict in a lawyer serving as public defender in one county while representing criminal defendants in other counties, provided the lawyer reasonably beli…
Can a former assistant solicitor, now counsel to the Foster Care Review Board, handle abuse/neglect matters he worked on as a prosecutor?
The committee concluded that under Rule 1.11(c)(1) the lawyer may not participate, on behalf of the Board, in any matter in which he participated personally and substantially as an assistant solicitor…
Can a lawyer who serves on county council, which sets magistrates' facilities and pay, practice before those magistrates, and can the lawyer's partner?
The committee concluded the Rules of Professional Conduct do not expressly prohibit a county council member from representing clients in the local magistrate's court, but State Ethics Commission opini…
Can a child-support agency lawyer pursue a defendant he once represented or whose confidential government information he holds, and can the agency be on both sides in unrelated cases?
The committee concluded that an OCSE lawyer may not pursue a defendant he personally represented in a prior OCSE child-support action (Rule 1.11(c)), nor pursue someone whose confidential government i…
What conflicts arise when one firm's lawyers serve as the county attorney and town attorney while the firm also takes criminal and family-court appointments?
The committee concluded that the firm cannot represent parties adverse to the county or town it advises (such as in abuse-and-neglect cases or defendants arrested by its agencies), and members cannot …
Can a lawyer who serves on county council sue an elected or appointed county official, like the sheriff, on behalf of a private client?
The committee concluded that the suit is barred only if Rule 1.7(b)'s two preconditions are met (the lawyer-councilman has a responsibility to the proposed defendant, and that responsibility would mat…
Can a lawyer who sits on a state youth-services board represent a juvenile in a delinquency case that the agency makes recommendations in?
The committee, reconsidering its earlier opinion under the new Rules, concluded there is no blanket bar: because the board member only sets agency policy and does not adjudicate or have case-specific …
May a county attorney recruit a taxpayer plaintiff, including through the news media, to bring a declaratory-judgment test case?
The committee concluded the county attorney could seek a taxpayer plaintiff if he followed safeguards: Rule 1.8(e) and (j) are not violated absent financial assistance or a proprietary interest, commo…
When a law firm partner sits on city council, can the firm's other lawyers represent clients against the city or appear in city court?
The committee concluded that a councilman partner is barred under Rule 1.7(b) from representing clients adverse to the city, and that bar is imputed to the firm under Rule 1.10(a); but the Rules do no…
Can a former assistant solicitor defend criminal cases in the county where he served, and does it matter that his spouse is still a solicitor there?
The committee concluded that a former assistant solicitor may defend in the county where he served, except in a matter he handled personally and substantially as a public employee (which needs the sol…
Can an assistant solicitor appear before a circuit judge whose law clerk is the solicitor's own spouse?
The committee concluded that an assistant solicitor should be precluded from appearing before the resident judge on any matter while his spouse serves as that judge's law clerk, because a clerk person…
Can a lawyer who represents the guardian ad litem for abused children also contract to represent the state DSS at the review hearings in those cases?
The committee concluded the lawyer could not represent both the guardian ad litem (or child) and S.C. DSS in the same case, because the representation continues through the review hearings and DSS and…
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Legal ethics opinions from the South Carolina Bar interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.