State Bar of South Dakota

Ethics Opinion 85-1

January 23, 1985

Facts

You inquire whether you may represent a potential client injured in an auto accident where the driver of the other vehicle involved in the accident plead guilty to reckless driving in Circuit Court on charges brought by the State’s Attorney, a member of your law firm. 

The majority of the Committee feel there is no conflict of interest or improper degree or impropriety if the following conditions are met: 

1. All criminal matters are finally concluded by a plea of guilty prior to contact by the potential client. 

2. [Your partner] was not privy to criminal matters and uses only what is or public record relative to same.

3. The client voluntarily chooses your firm after disclosure of these matters.

4. Screening of the State’s Attorney member of the firm from the civil matters and the State’s Attorney member does not share in the fees of the civil matter. The concept of screening as recognized in South Dakota Ethics Opinion 84-6 and by the Eighth Circuit Court of Appeals in Central Milk Producers v. Sentry Food Stores, Inc., 573 F2d 988.

One member of the Committee felt the State’s Attorney and members of his firm are disqualified and must decline representation in a civil action which evolves from the same fact situation the prosecutor considered in his official government responsibilities. He felt the danger or appearance of impropriety was too great. 

Carl W. Quist
Chair, Ethics Committee