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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.12   Rule 1.12 Former Judge or Arbitrator

1.12:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 1.12
Background References: ABA Model Rule 1.12, Other Jurisdictions
Commentary:

1.12:101      Model Rule Comparison

South Carolina Rule 1.12 and its comments are identical to Model Rule 1.12.

1.12:102      Model Code Comparison

Model Rule 1.12 is based in part on DR 9-101(A) of the Code of Professional Responsibility.

1.12:200   Former Judge or Arbitrator Representing Client in Same Matter

Primary SC References: SC Rule 1.12(a)
Background References: ABA Model Rule 1.12(a), Other Jurisdictions
Commentary: ABA/BNA 91.4501

A former judge normally may not serve as lawyer in "a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer," unless each party consents to the representation. Rule 1.12(a). Substantial participation includes issuing consent orders. S.C. Bar Ethics Adv. Op. # 99-06. Former arbitrators and law clerks to judges also are disqualified from serving as lawyers in matters in which they participated substantially and personally in their prior capacity. See S.C. Bar Ethics Adv. Op. # 91-29. The only exception is that a lawyer appointed as a partisan selection to a multimember arbitration panel may subsequently represent that party. Rule 1.12(d).

1.12:300   Negotiating for Future Employment

Primary SC References: SC Rule 1.12(b)
Background References: ABA Model Rule 1.12(b), Other Jurisdictions
Commentary: ABA/BNA 91:4001, ALI-LGL 206, Wolfram 8.10

A judge, arbitrator, or other adjudicative officer seeking to move to private practice also is subject to restrictions on negotiating similar to those imposed on other government employees. A judge, arbitrator, or other adjudicative officer may not negotiate for employment with any person involved as party or lawyer in a matter in which that officer is personally and substantially participating. Rule 1.12(b). A law clerk may negotiate, if the judge or other employer is aware of the negotiation. Id.

1.12:400   Screening to Prevent Imputed Disqualification

Primary SC References: SC Rule 1.12(c)
Background References: ABA Model Rule 1.12(c), Other Jurisdictions
Commentary: ABA/BNA 91:4501, ALI-LGL 203, 204, Wolfram 7.6.4

Disqualification of an individual lawyer under Rule 1.12 extends to others in the lawyer's firm, unless the former judge is screened from participating in the matter and is apportioned no part of the fee. Written notice of the screening is required to be given promptly to the appropriate tribunal to assure compliance with the screening requirement. Rule 1.12(c).

1.12:500   Partisan Arbitrators Selected by Parties to Dispute

Primary SC References: SC Rule 1.12(d)
Background References: ABA Model Rule 1.12(d), Other Jurisdictions
Commentary: ABA/BNA 51:1501

[The discussion of this topic has not yet been written.]