South Carolina Legal Ethics
1.11 Rule 1.11 Successive Government and Private Employment
1.11:100 Comparative Analysis of SC Rule
• Primary SC References: SC
Rule 1.11
• Background References: ABA
Model Rule 1.11, Other Jurisdictions
• Commentary:
1.11:101 Model Rule Comparison
South Carolina Rule 1.11 and its comments are identical to Model Rule 1.11.
1.11:102 Model Code Comparison
Model Rule 1.11 is based in part on DR 9-101(B) of the Code of Professional Responsibility.
1.11:110 Federal Conflict of Interest Statutes and Regulations
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1.11:120 South Carolina Conflict of Interest Statutes and Regulations
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1.11:130 Definition of "Matter"
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1.11:200 Representation of Another Client by Former Government Lawyer
• Primary SC References: SC
Rule 1.11(a)
• Background References: ABA
Model Rule 1.11(a), Other
Jurisdictions
• Commentary: ABA/BNA § 91:4001, ALI-LGL § 214, Wolfram
§ 8.10
When a lawyer moves from government service as a public official or employee into private practice, the lawyer is prohibited from representing a private client, without the consent of the government, in any matter "in which the lawyer participated personally and substantially" while in government service or employment. Rule 1.11(a). This rule is designed to avoid any use of public employment to benefit a private client, without unduly restricting the ability of a former government lawyer to use in private practice the expertise gained as a public employee. See S.C. Bar Ethics Adv. Op. # 97-12 (former solicitor required to obtain informed consent of former employer before representing criminal defendant who was indicted during former solicitor's term in office, even where matter was primarily handled by assistant solicitor, since prosecution was still handled under solicitor's supervision).
1.11:210 No Imputation to Firm if Former Government Lawyer Is Screened
Although the rules normally impute any disqualification of a former government employee under Rule 1.11(a) or (b) to the lawyer's entire firm, a special mechanism is available to avoid disqualification beyond the individual lawyer. If a lawyer is individually disqualified by virtue of former government service, the firm may proceed with the representation if it screens the lawyer from any participation in the matter and does not apportion any part of the fee to that lawyer. The firm also must promptly notify the appropriate government agency of the screening in order that the agency can ascertain compliance. Rule 1.11(a) & (b). The comment indicates that notice should be given as soon as practicable, but not until such time as the disclosure would not prejudice the client. Rule 1.11, cmt.
1.11:300 Use of Confidential Government Information
• Primary SC References: SC
Rule 1.11(b)
• Background References: ABA
Model Rule 1.11(b), Other
Jurisdictions
• Commentary: ABA/BNA § 91:4001, ALI-LGL § 214, Wolfram
§ 8.10
1.11:310 Definition of "Confidential Government Information"
A former government employee also is prohibited from representing a private party in a matter in which the lawyer could use confidential government information actually learned about another person during government service to the material disadvantage of that person. Rule 1.11(b). See S.C. Bar Ethics Adv. Op. # 90-15 (applying Rule 1.11 to former assistant solicitor). Confidential government information is information, such as tax return information, obtained under government authority that either may not lawfully be disclosed by the government or is privileged and is not normally available to the public.
1.11:400 Government Lawyer Participation in Matters Related to Prior Representation
• Primary SC References: SC
Rule 1.11(c)
• Background References: ABA
Model Rule 1.11(c), Other
Jurisdictions
• Commentary: ABA/BNA § 91:4001, ALI-LGL § 213, 214,
Wolfram § 8.9.4
When a lawyer moves from private practice into government service rather than the reverse situation, a similar disqualification rule applies. The lawyer as a public employee may not participate in any matter in which the lawyer "participated personally and substantially" prior to the public employment. An exception to that disqualification is provided if the lawyer is the only one authorized by law to act in a matter. Rule 1.11(c)(1). The disqualification of a government lawyer is not imputed to other lawyers in the agency. Rule 1.11, cmt.
A staff attorney for a court or a law clerk to a judge also must comply with South Carolina Appellate Court Rule 506, which disqualifies a staff attorney or law clerk from participating in any matter in which that person served previously as a lawyer. The staff attorney or clerk also is disqualified from participating in any matter handled by another lawyer, if during the representation that lawyer had previously employed the attorney or clerk. S.C. App. Ct. R. 506, Canon 3(E)(2).
1.11:500 Government Lawyer Negotiating for Private Employment
• Primary SC References: SC
Rule 1.11(c)(2)
• Background References: ABA
Model Rule 1.11(c)(2), Other
Jurisdictions
• Commentary: ABA/BNA § 91:4001, ALI-LGL §§ 156, 214,
Wolfram § 9.10
When a government lawyer is contemplating a move into private practice, the lawyer (other than a judicial clerk who is subject to Rule 1.12) may not negotiate for private employment with anyone involved as a party or lawyer in a matter "in which the lawyer is participating personally and substantially." Rule 1.11(c)(2).