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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


South Carolina Legal Ethics

1.10   Rule 1.10 Imputed Disqualification: General Rule

1.10:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 1.10
Background References: ABA Model Rule 1.10, Other Jurisdictions
Commentary:

1.10:101      Model Rule Comparison

South Carolina Rule 1.10 and its comments are identical to Model Rule 1.10.

1.10:102      Model Code Comparison

The counterpart of Model Rule 1.10 is DR 5-105(D) of the Code of Professional Responsibility.

1.10.103      Definition of "Firm"

The imputation under Rule 1.10 of disqualification extends only to members of the disqualified lawyer's "firm." A question may arise as to the definition of that term for imputation purposes. The terminology glossary for the Rules of Professional Conduct prior to Rule 1.1 defines a law firm as including not only lawyers in a private firm, but also "lawyers employed in the legal department of a corporation or other organization and lawyers employed in a legal services organization." The comment to Rule 1.10 repeats and elaborates upon that definition.

There is no single embodiment of a private law firm. The comment to Rule 1.10 notes that "[a] group of lawyers could be regarded as a firm for purposes of the rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the rule that information acquired by one lawyer is attributed to the other."

The comment to Rule 1.10 concludes that while lawyers "employed in the same unit of a legal services organization constitute a firm," the firm would not necessarily include lawyers in other units. South Carolina advisory opinions have concluded that a public defender's office should be treated as a law firm, meaning that when the interests of multiple criminal defendants conflict, multiple representation by lawyers in the public defender's office may be inappropriate. See S.C. Bar Ethics Adv. Ops. ## 92-21, 78-02.

A disciplinary decision suggests office sharing arrangements can sometimes result in imputation of disqualification. Although a true office sharing arrangement is not included within the definition of a law firm included in the comment to Rule 1.10, the court in In re Craig, 317 S.C. 295, 454 S.E.2d 314 (1995) disciplined a lawyer who represented the wife in a domestic relations matter while sharing office space with another lawyer who previously had represented the husband, but who had withdrawn when the office sharing arrangement began. The disciplined lawyer argued unsuccessfully that he had not agreed to withdraw as counsel and was not required to do so. Relying on the "appearance of impropriety" language of the prior Code of Professional Responsibility, the court found only that the lawyer had acted improperly by not "documenting in writing what his arrangements were regarding former clients, and/or by [not] terminating his representation" of the wife. The court offered no further guidance as to the exact nature of the duty violated by the lack of documentation. See also S.C. Bar Ethics Adv. Op. # 91-37 (discussing imputation of disqualification resulting from office sharing); S.C. Bar Ethics Adv. Op. # 90-10 (quoting comment to Rule 1.10 in connection with imputed disqualification of part-time judge's law firm).

1.10:200   Imputed Disqualification Among Current Affiliated Lawyers

Primary SC References: SC Rule 1.10(a)
Background References: ABA Model Rule 1.10(a), Other Jurisdictions
Commentary: ABA/BNA 51:2001, ALI-LGL 203, Wolfram 7.6

The basic rule governing imputation of disqualification is relatively simple. When a lawyer in a firm is disqualified from handling a matter by virtue of a conflict of interest under Rules 1.7, 1.9 or 2.2 or when a lawyer could not draft an instrument making a gift to the lawyer or a member of the lawyer's family under Rule 1.8(c), no other member of the lawyer's firm may undertake the representa. Rule 1.10(a).

Several South Carolina advisory opinions have suggested that disqualification should be imputed in certain situations beyond only those listed in Rule 1.10. Considering the disqualification of a county or municipal attorney from appearing before a local judge or court to whom the lawyer provides legal advice, the committee opined that the attorney's entire firm should be disqualified. Although basing the need for disqualification upon the Code of Judicial Conduct rather than upon any of the four rules to which Rule 1.10 applies, the committee concluded that the situation would be "most closely analogous to a conflict of interest" under Rule 1.7. "The question of impartiality in this context would apply to other members of the firm due to the closeness of the relationship." S.C. Bar Ethics Adv. Op. # 91-05; see also S.C. Bar Ethics Adv. Op. # 99-10 (attorney practicing in firm which has one of its members also practicing as assistant solicitor is disqualified from representing family of deceased against alleged wrongdoer when wrongdoer is being prosecuted by solicitor's office); S.C. Bar Ethics Adv. Op. # 90-10 (disqualification of part-time judge from practice before same court under Code of Judicial Conduct ought to be imputed to others in judge's firm).

1.10:300   Removing Imputation by Screening

Primary SC References: SC Rule 1.10
Background References: ABA Model Rule 1.10, Other Jurisdictions
Commentary: ABA/BNA 51:2001, ALI-LGL 204, Wolfram 7.6

While the South Carolina rules do not permit screening of disqualified lawyers to avoid imputed disqualification, other than as permitted for government lawyers under Rule 1.11, Rule 1.12, and the comment to Rule 1.8, the erection of a screen may be relevant to obtaining a client's consent to or waiver of a conflict of interest. See S.C. Bar Ethics Adv. Op. # 92-23. The committee has ruled, however, that screening may prevent a firm from being disqualified when it hires a paralegal who worked for an adverse party. S.C. Bar Ethics Adv. Op. # 91-12.

1.10:400   Disqualification of Firm After Disqualified Lawyer Departs

Primary SC References: SC Rule 1.10(b)
Background References: ABA Model Rule 1.10(b), Other Jurisdictions
Commentary: ABA/BNA 51:2008, ALI-LGL 204, Wolfram 7.6.3

While Rule 1.9(b) governs the conduct of a lawyer who moves between firms and thus determines whether the new firm is disqualified by imputation, Rule 1.10(b) governs whether the lawyer's old firm may represent a client with interests materially adverse to a former client who moves with the departing lawyer. When a client represented by the departing lawyer no longer is a client of the old firm, if no lawyer remaining in the firm has protected information about the former client that is material to the matter, the firm may undertake a representation adverse to the former client, even in a matter that is the same or substantially related to the prior representation.

1.10:500   Client Consent

Primary SC References: SC Rule 1.10(c)
Background References: ABA Model Rule 1.10(c), Other Jurisdictions
Commentary: ABA/BNA 51:2001, ALI-LGL 202, Wolfram 7.2, 7.3

In a conflict situation, Rule 1.10(a) protects the client's expectation of loyalty on the part of the entire firm, as well as the client's expectations of confidentiali. A client may waive the imputed disqualification "under the conditions stated in Rule 1.7," meaning that the lawyer must reasonably believe the representation will not affect the client adversely and the client must consent after full consultation regarding the potential risks. Rule 1.10(c).