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
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