TO: Circuit Court and Family Court Judges
FROM: Jean Hoefer Toal
RE: Appointment of Counsel in Conflict of Interest Cases
DATE: January 21, 2009
As you are aware, due to substantial budget reductions, the South Carolina Commission on Indigent Defense, on Friday, December 19, 2008, imposed a moratorium on the payment of attorney fees to attorneys appointed in civil and criminal cases pursuant to Rule 608, SCACR. The moratorium became effective on January 1, 2009.
In an effort to further assist the Commission during this budgetary crisis, I am requesting that careful consideration be given to Rule 1.10(e) of the Rules of Professional Conduct, Rule 407, SCACR, before outside counsel is appointed in response to an allegation of a conflict of interest within the appropriate public defender office. Substantial revisions were made to the Rules of Professional Conduct in June 2005. At that time, the following provision was added to Rule 1.10:
(e) A lawyer representing a client of a public defender office, legal services association, or similar program serving indigent clients shall not be disqualified under this Rule because of the program’s representation of another client in the same or a substantially related matter if:
(1) the lawyer is screened in a timely manner from access to confidential information relating to and from any participation in the representation of the other client; and
(2) the lawyer retains authority over the objectives of the representation pursuant to Rule 5.4(c).
The amendment to Rule 1.10 permits screening to avoid imputed disqualification when a program represents multiple clients with conflicting interests in the same or a related matter. The intent of the amendment was to increase the number of persons to whom each program can provide legal services and reduce the number of cases in which private counsel has to be appointed, while at the same time protecting clients from prejudice. Previously, advisory opinions had been issued indicating that public defender and legal services offices are to be treated in the same manner as a law firm for purposes of the imputation of conflicts of interest. The amendment served to reverse those opinions.
I therefore urge you to carefully consider Rule 1.10(e) when an allegation of a conflict of interest within a public defender office is raised. An inquiry should be made into the nature of the conflict and into what measures have been taken by the public defender office to screen the public defender handling the case. Every effort should be made to continue representation by the public defender office if this can be accomplished without prejudice to the client. Your cooperation in this matter is greatly appreciated.
 The Commission will pay final vouchers for legal fees and expenses submitted on or before December 31, 2008. During the moratorium period the Commission will continue to pay final vouchers for reimbursable expenses on all cases. Pending further payments of legal fees the Commission will carry forward any unpaid obligations and pay, to the fullest extent possible, these obligations as and when funds become available. The Commission has stated it will review its budget situation and this decision within ninety days, if not sooner.
 The revised rules became effective on October 1, 2005.