SCBar

Ethics Advisory Opinion 13-04

sjordan — Mon, 15 Apr 2013 15:00:00 GMT

When a third-party wants to retain Attorney to represent Client in a legal matter, the ownership of the funds in Attorney’s trust account must be determined by and between the payor and client; Attorney must not arbitrate disputed funds. Also, Attorney must not allow the third party payor to direct the representation of Client. Attorney is obligated to tell the client that a third party has paid for all the legal expenses and keep the client informed as to the amount and status of those funds.

Ethics Advisory Opinion 13-03

sjordan — Thu, 11 Apr 2013 14:09:00 GMT

There is no ethical prohibition on Law Firm renting office space from the Real Estate Agency in order to be considered one of the Real Estate Agency’s “preferred attorneys”; provided the rental agreement calls for commercially reasonable terms including a fair market rental amount. Additionally, Law Firm and Real Estate Agency may form a partnership to act as the Title Insurance Agent and to split the agency’s portion of the title insurance premiums generated by real estate closings involving Law Firm and Real Estate Agency’s customers.

Ethics Advisory Opinion 13-02

sjordan — Tue, 05 Mar 2013 14:08:00 GMT

Where there is no contractual commitment to pay an investigator, the Rules of Professional Conduct do not impose any ethical requirement that counsel supplement CID payments.

Ethics Advisory Opinion 12-12

sjordan — Thu, 03 Jan 2013 14:57:00 GMT

Lawyers may state or imply that they practice in a partnership only when such statement or implication is accurate and not misleading. Under the circumstances presented, it would be misleading for the lawyer to indicate or imply that he is practicing in a partnership.

Ethics Advisory Opinion 12-11

sjordan — Tue, 11 Dec 2012 14:04:00 GMT

Automated Clearing House Transfers issued to attorney trust accounts should not be considered collected funds until five banking days have expired.

Ethics Advisory Opinion 12-10

sjordan — Tue, 10 Jul 2012 12:59:00 GMT

Lawyer who represented a client (now deceased) against her spouse in a prior action should produce items to the spouse, who is acting as the executor of client’s estate, only to the extent that Lawyer can determine that the deceased client or the Probate Court specifically authorized release to the spouse. Any other information should not be released absent a court order.

Ethics Advisory Opinion 12-09

sjordan — Thu, 28 Jun 2012 15:48:00 GMT

An out of state law firm may advertise on billboards in South Carolina and include pictures of firm members not licensed in South Carolina, provided the billboard meets all South Carolina advertising regulations.

Ethics Advisory Opinion 12-08

sjordan — Thu, 28 Jun 2012 15:44:00 GMT

An “offsite desk review” of attorney trust accounts by title insurance companies must ensure that steps have been taken to preserve confidentiality of client information. A method should be in place to comply with the audit and to provide specific data about any transaction involving the title insurance company, while simultaneously preserving the confidentiality of any information not necessary for compliance.

Ethics Advisory Opinion 12-07

sjordan — Thu, 28 Jun 2012 15:39:00 GMT

Rules 1.5 and 1.8 do not prohibit an attorney from obtaining an interest in property to secure payment of a fee, as long as the requirements of both Rules are met. The fact that a client requires advice regarding a particular course of action and that course of action may impact the amount or collectability of the attorney’s fee does not create a conflict of interest, unless the attorney reasonably believes he cannot provide competent and diligent advice to the client under Rule 1.7. In most instances, the best practice may be to seek the client’s informed consent to the potential conflict created by the creation of a personal interest of the lawyer under Rule 1.7 at the same time.

Ethics Advisory Opinion 12-06

sjordan — Thu, 24 May 2012 14:08:00 GMT

Rules 5.4 and 7.2(c) do not prohibit an attorney from joining a mediation firm and sharing in its profits, as long as no portion of the work of the mediation firm consists of the practice of law and clients understand that the firm is not engaged in the practice of law. See also Ethics Advisory Opinion 94-10, which provides that mediation is not a legal service, and that admission to the Bar is not a prerequisite to service as a mediator.

Ethics Advisory Opinion 12-05

sjordan — Thu, 24 May 2012 13:50:00 GMT

An arrangement where (1) attorney works for a Texas-based law firm as the sole employee of the firm’s Columbia, South Carolina office, (2) the IOLTA account will be located in Virginia, where Partner is based and where the law firm’s accounting office is located, and (3) Partner will have sole ability to write checks drawn on the South Carolina IOLTA account appears to comply with Rule 1.15 and Rule 412, but it does not comply with Rule 417, SCACR, as recently amended.

Ethics Advisory Opinion 12-03

sjordan — Tue, 21 Feb 2012 15:12:00 GMT

If a question-answering website complies with all communications and advertising rules, a lawyer may participate in such a program, but with specific caution against inadvertently forming an attorney-client relationship by offering more than basic information of general applicability.

A lawyer’s participation in a website that uses the word “expert,” invites specific questions about specific legal matters, and offers specific legal advice but uses buried small-type statements to attempt to disclaim the creation of attorney/client relationships is prohibited.

Ethics Advisory Opinion 12-02

sjordan — Tue, 21 Feb 2012 15:05:00 GMT

A contingent fee, payable to a lawyer as a partial ownership interest in real property with the client, may be permissible subject to the lawyer’s compliance with: Rule 1.8(a), regarding entering into business transactions with a client; Rule 1.8(i), regarding acquisition of a proprietary interest in the subject matter of litigation; Rule 1.5(c), regarding contingency fees; and Rule 1.5’s reasonableness requirement.

Ethics Advisory Opinion 12-01

JHeape — Sun, 01 Jan 2012 16:41:00 GMT

Absent an agreement to the contrary, a law firm is not authorized to use remaining funds received as a retainer in an initial matter to cover a portion of an amount due on a second matter. The law firm should treat any additional funds held in the trust account from the first matter as it would any other client funds, taking appropriate steps to notify the client of its right to recover the surplus. If the lawyer’s fee agreement sets forth that any funds remaining in trust may be applied to other matters, then the lawyer may apply the remainder to those matters as specified and agreed to by the client.

Ethics Advisory Opinion 11-09

sjordan — Thu, 01 Dec 2011 14:45:00 GMT

A lawyer may report information learned by taking the deposition of the opposing party to tax authorities only with her client’s informed consent as provided in Rule 1.6(a). Since Rule 4.5 prohibits reporting or the threat of reporting to criminal authorities solely to obtain an advantage in a civil action, the lawyer may find it prudent to wait until the litigation is concluded, though the rules do not specifically require it.

Ethics Advisory Opinion 11-08

sjordan — Tue, 15 Nov 2011 09:51:00 GMT

It is the Committee’s opinion that the ‘Work Share Agreement’ described above violates Rules 5.4(a) (fee sharing) and Rule 7.2(c) (payment for referral). The Committee does not, however, rule out the possibility that a work-share agreement could be drafted that would comply with the Rules of Professional Conduct.

Ethics Advisory Opinion 11-06

sjordan — Tue, 30 Aug 2011 11:37:00 GMT

In a standard real estate closing, absent additional facts and circumstances, a buyer’s lawyer preparing a settlement statement may add a reasonable payoff handling fee to the Seller’s side of the statement even though the lawyer has not entered into a fee arrangement nor has an attorney/client relationship with the seller. The lawyer may, alternatively, choose to seek actual reimbursement.

Ethics Advisory Opinion 11-05

sjordan — Mon, 25 Jul 2011 14:41:00 GMT

The use of “daily deal” websites to sell vouchers to be redeemed for discounted legal services does not violate the Rule 5.4(a) prohibition on sharing of legal fees, but the attorney is cautioned that the use of such websites must be in compliance with Rules 7.1 and 7.2 and could lead to violations of several other rules if logistical issues are not appropriately addressed.

Ethics Advisory Opinion 11-04

JHeape — Fri, 20 May 2011 14:51:00 GMT

A federal investigator who is also a lawyer may directly contact a target of an investigation, even if the target is represented by counsel. The investigator is not “representing a client” and Rule 4.2, prohibiting communication with a represented party, does not apply. However, Inquirer should take care to avoid overreaching.

Ethics Advisory Opinion 11-03

JHeape — Thu, 19 May 2011 14:50:00 GMT

No, the proposed program does not violate the Rules, provided Lawyer does not allow the charitable organization to influence his independent judgment.

Ethics Advisory Opinion 11-01

JHeape — Thu, 24 Feb 2011 16:53:00 GMT

Husband, a licensed attorney, and his wife have filed a lawsuit. Husband is pro se. Husband should be mindful of Rule 4.2, governing communications with persons represented by counsel. If the insurance company is represented by counsel, the appropriate course of action would be for the husband to contact the counsel, not the insurance company, unless permission is given to contact the insurance company directly. Wife, as a pro se litigant, is not subject to the Rules of Professional Conduct and the Committee may not offer an opinion as to the activities of a non lawyer.

Ethics Advisory Opinion 10-08

JHeape — Tue, 19 Oct 2010 20:38:00 GMT

When services of a contract attorney are billed as fees for legal services, South Carolina Rule 1.5(a) governs the amount that may be charged to the client for those services in that the total fee must be reasonable. The amount of that fee that is paid by the Lawyer to the contract attorney for his services is a matter of contract between the Lawyer and the contract attorney and need not be disclosed to the client. When the legal services of the contract attorney are billed to the client as an expense or cost, the Lawyer may not add a surcharge to the expense or cost absent a retainer agreement with the client that permits such surcharges. In order for the Lawyer to bill the contract attorney’s services as fees for legal services, the Lawyer must adopt it as his own and be responsible to the client for it or must supervise the contract attorney. If the Lawyer does neither, the services of the contract attorney must be billed as a cost and the details of the arrangement disclosed and consented to by the client.

Ethics Advisory Opinion 10-06

JHeape — Wed, 13 Oct 2010 05:13:00 GMT

Summary A lawyer who is a partner in a law firm in South Carolina is not prohibited from practicing as a lawyer in another firm in South Carolina or being “of counsel” to that other firm.

Ethics Advisory Opinion 10-05

JHeape — Wed, 13 Oct 2010 05:09:00 GMT

Whether a lawyer may disclose a potential mortgage deficiency and to whom the deficiency may be disclosed depends upon the relationship between the lawyer and the parties to the closing. The question of whether a lawyer is obligated to disclose the potential deficiency is a standard of care issue and is outside the scope of this committee.

Ethics Advisory Opinion 10-04

JHeape — Thu, 09 Sep 2010 13:40:00 GMT

It is improper for a lawyer to become personally obligated in a client's settlement agreement to refrain from identifying the defendant as a part of the lawyer's business.

Ethics Advisory Opinion 10-03

JHeape — Thu, 27 May 2010 12:27:00 GMT

No. Without more, the mere conduct of a residential closing is not substantially related, for purposes of Rule 1.9, to an HOA’s later efforts to enforce covenants or restrictions against the buyer.

Ethics Advisory Opinion 10-02

JHeape — Tue, 27 Apr 2010 14:25:00 GMT

An account that contains funds of a client or third party is a trust account subject to the provisions of SC RPC 1.15 and SC ACR 417. A lawyer may share control of an account with a non-lawyer if the an account contains no monies which, pursuant to SC RPC 5.4, could not be shared with a non-lawyer or client funds which are subject to the safe-keeping requirements of SC RPC 1.15 and Financial Recordkeeping requirements of SC ACR 417.

Ethics Advisory Opinion 10-01

Administrator — Tue, 13 Apr 2010 08:46:00 GMT

An attorney may limit the scope of representation to the collaborative law process, provided the attorney proceeds pursuant to the other Rules of Professional Conduct. While a potential conflict of interest may be created in the collaborative process, it is one to which the client may consent.

Ethics Advisory Opinion 09-14

Administrator — Mon, 22 Mar 2010 12:09:00 GMT

Letters advertising the Lawyer’s general availability to provide certain legal services which are sent to persons in a restricted geographic region, such as a retirement community or selected zip code, do not constitute solicitations to persons known to be in need of legal services under Rule 7.3(d). Nor do such letters do not appear to be prompted by a specific occurrence under Rule 7.3(g). However, the letters do seek employment from specific prospective clients under Rule 7.3(h)

Ethics Advisory Opinion 09-13

Administrator — Mon, 22 Mar 2010 12:08:00 GMT

Pursuantto Rule 1.15 of the South Carolina Rules of Professional Conduct,if Landlord’s claim to the rent funds in Attorney’s trust account does not appear to be frivolous, then Attorney has an affirmative duty to retain those funds in trust until Landlord’s claim is resolved.

Ethics Advisory Opinion 09-12

Administrator — Mon, 22 Mar 2010 12:06:00 GMT

A lawyer who previously served as the guardian ad litem for three minor children in an abuse and neglect action should not represent the custodial parent/grandparent in a later action to enforce or modify child support.

Ethics Advisory Opinion 09-11

Administrator — Mon, 22 Mar 2010 12:02:00 GMT

A lawyer may appear on behalf of another lawyer to request a continuance. A lawyer may not act on behalf of another lawyer or a non-client without consent from the lawyer or entering into an attorney-client relationship with the non-client.

Ethics Advisory Opinion 09-10

Administrator — Mon, 22 Mar 2010 12:00:00 GMT

A lawyer may “claim” a website listing, but all information contained therein (including peer endorsements, client ratings, and Company X ratings) are subject to the rules governing communication and advertising once the lawyer claims the listing. A lawyer may invite peers to rate the lawyer and may invite and allow the posting of peer and client comments, but all such comments are governed by the Rules of Professional Conduct, and the lawyer is responsible for their content.

Ethics Advisory Opinion 09-09

Administrator — Mon, 22 Mar 2010 11:59:00 GMT

With informed consent of the Client, Lawyer may continue to represent Client from a divorce matter under a limited representation pursuant to Rule 1.2 on appeal from a Probate Court order in which their interests are aligned. If Client declines continued representation by Lawyer after being informed of the circumstances, Lawyer may pursue Lawyer's personal claim against Spouse without violating Rule 1.9 so long as confidential information from the divorce and probate representations is not used to the disadvantage of Client in the case against Spouse or any subsequent effort to execute upon any judgment Lawyer may obtain against Spouse.

Ethics Advisory Opinion 09-08

Administrator — Mon, 22 Mar 2010 11:57:00 GMT

A Special Referee is a court of record and is part of the judicial process, unlike an arbitrator. Therefore, attorney is not obligated to pay the fee of the Special Referee. Numerous court opinions have held that a lawyer has the duty to pay costs of depositions which he has ordered. However, there is no rule within the South Carolina Rules of Professional Conduct which requires payment of fees of Special Referees.

Ethics Advisory Opinion 09-07

Administrator — Mon, 22 Mar 2010 11:56:00 GMT

In a standard real estate closing where Borrower has chosen and retained Lawyer, absent additional facts and circumstances, Lawyer does not represent the Lender. The mere supplying of closing instructions by a Lender to Lawyer does not, in and of itself, create an attorney-client relationship between Lender and Lawyer nor create a significant risk that Lawyer’s representation of Borrower will be materially limited by Lawyer’s responsibility to Lender. As such, the requirements of Rule 1.7(a) do not apply.

Ethics Advisory Opinion 09-06

Administrator — Mon, 22 Mar 2010 11:15:00 GMT

The Rules of Professional Conduct do not prohibit Lawyer from practicing in city court. However, judges may be required to recuse themselves either if the mayor’s partnership with counsel creates an appearance of impropriety.

Ethics Advisory Opinion 09-05

Administrator — Mon, 22 Mar 2010 11:13:00 GMT

The law clerk is NOT precluded from testifying, subject to rulings from the court on the admissibility of the testimony.

Ethics Advisory Opinion 09-04

Administrator — Mon, 22 Mar 2010 11:12:00 GMT

Rule 1.16(d) states, “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest . . .; In a criminal matter, Attorney may be required to file a Notice of Appeal and other documentation regardless of the limitations in the engagement letter or retainer agreement. In a civil matter, this obligation may be met by advising the client as to the steps necessary and time involved or by supplying client with a Notice of Appeal to file pro se and specific instructions for perfecting the appeal, depending upon the time of notice of the client of its desire to appeal the adverse decision. Attorney is cautioned about going beyond what is required by SCRPC Rule 1.16(d). See In Re Tillman, 319 S.C. 461, 462 S.E. 2d 283 (1995) (reprimanding attorney for continuing to work on client's file after client terminated representation).

Ethics Advisory Opinion 09-03

Administrator — Mon, 22 Mar 2010 11:03:00 GMT

Attorney does not necessarily have an obligation to write the title insurance policy with Underwriter B; however, attorney has an ethical obligation to disclose the premium differences, as well as any other relevant differences between a policy issued by Underwriter A and a policy issued by Underwriter B.

Ethics Advisory Opinion 09-02

Administrator — Mon, 22 Mar 2010 11:01:00 GMT

No summary - see full text.

Ethics Advisory Opinion 09-01

Administrator — Fri, 19 Mar 2010 08:49:00 GMT

As to Questions 1 and 2, a lawyer may not rely solely on a non-lawyer’s representations that the conduct of a transaction is ethically proper. As to Question 3, a lawyer may rely to some extent on another South Carolina lawyer’s representations in this circumstance but nevertheless takes some responsibility for the conduct of the entire transaction. As to Question 4, a lawyer may not rely on blanket assurances. As to Question 5, a lawyer may properly limit the scope of representation to title abstracting and take no further responsibility, unless the lawyer knows that his work will be used to facilitate illegal conduct.

Ethics Advisory Opinion 08-01

Administrator — Sun, 13 Apr 2008 08:46:29 GMT

Rule 1.16(c), South Carolina Rules of Professional Conduct (SCRPC), requires a lawyer to have permission of the appropriate tribunal before terminating representation. Until such relief is granted, the lawyer is obligated to provide competent representation.

Ethics Advisory Opinion 08-02

Administrator — Sun, 13 Apr 2008 08:46:29 GMT

Yes. 1) Lawyer may ethically enter into a fee-payment arrangement with clients and a trade credit account processor (TCAP) and 2) Lawyer, may sell existing accounts receivable to a TCAP, provided informed consent is obtained from the client.

The facts as presented address any ethical concerns in that the client’s informed consent is obtained prior to entering into the fee-payment arrangement; clients are not charged any fees, costs, or interest; and client confidentiality is maintained (except for client name and address, which are divulged with permission of the client).

Ethics Advisory Opinion 08-03

Administrator — Sun, 13 Apr 2008 08:46:29 GMT

Yes, the law firm may act as escrow agent and deposit funds in interest-bearing non-IOLTA accounts based on the facts presented.

Ethics Advisory Opinion 08-04

Administrator — Sun, 13 Apr 2008 08:46:29 GMT

A lawyer may serve as a guardian ad litem and legal counsel for the guardian ad litem but must exercise caution. A lawyer must not serve as the guardian ad litem and lawyer for the child and consequently can not serve in three roles as the guardian ad litem, lawyer for the child and lawyer for the guardian ad litem.

Ethics Advisory Opinion 08-05

Administrator — Sun, 13 Apr 2008 08:46:29 GMT

To the extent that payment of witness fees for representing a client from another may be legally permissible, there would appear to be no ethical prohibition upon such payment being made under the facts presented provided the provisions of Rules 1.8(e), 1.8(f) and 3.4 (b) are followed.

Ethics Advisory Opinion 08-06

Administrator — Sun, 13 Apr 2008 08:46:29 GMT

The obligation of an attorney who suspects or knows that his client is an illegal alien are the same as the obligations of an attorney who suspects or knows that his client is engaged in any other form of ongoing criminal activity.

Ethics Advisory Opinion 08-07

Administrator — Sun, 13 Apr 2008 08:46:29 GMT

An attorney may not agree to serve as an indemnitor on behalf of her client to protect released parties in a settlement against lien claims asserted by third parties regarding settlement proceeds.

Ethics Advisory Opinion 08-08

Administrator — Sun, 13 Apr 2008 08:46:29 GMT

Yes. Full disclosure must include informing John of the potential that information learned in the course of the earlier representation may be relevant to, and subject to disclosure in, the criminal matter. Provided John knowingly waives any objections to such disclosure and the representation, the attorney is free to represent Jane in the criminal matter.

Ethics Advisory Opinion 08-09

Administrator — Sun, 13 Apr 2008 08:46:29 GMT

Ordinarily, a Lawyer has a duty of confidentiality to clients. Under these circumstances, however, Lawyer is not prohibited from reporting the matter to the Department of Social Services or the appropriate protective service entity. The determination of who may be the client is a matter of law that the Committee declines to determine. However, regardless of which party may be a client, the result does not change. The Lawyer has no ethical obligation to Cousin unless Cousin is the client, in which case, the Lawyer again may take appropriate action including reporting the matter to the Department of Social Services or the appropriate protective service entity.

Ethics Advisory Opinion 08-10

Administrator — Sun, 13 Apr 2008 08:46:29 GMT

No. The lawyer only has the obligation to take reasonable steps to protect client's funds. In addition to FDIC insurance, numerous federal agencies regulate financial institutions for the purpose of guarding against bank failures. It cannot be presumed that these federal agencies are not making reasonable efforts to safeguard these financial institutions, and it is certainly clear that these agencies have greater expertise than any given attorney. There is no requirement in the rules that the attorney maintain insurance on his trust account for amounts in excess of $100,000.

Ethics Advisory Opinion 08-11

Administrator — Sun, 13 Apr 2008 08:46:29 GMT

While the contemplated representation is not a per se violation of the Rules of Professional Conduct, these specific facts are fraught with the danger of breaches of confidentiality as prohibited by Rule 1.6 and the potential for imputation of a conflict of interest under Rule 1.10(a). See also In re Craig, 317 S.C. 295, 454 S.E. 2d 314 (1995). Caution should be used prior to entering this type of representation.

Ethics Advisory Opinion 08-12

Administrator — Sun, 13 Apr 2008 08:46:29 GMT

Members of the Bar who are contemplating representation of multiple parties in which there is any possibility of future conflicts should carefully evaluate the risks and take proactive steps to ensure all potential clients are well-informed about such risks. The Committee advises that engagement agreements and fee agreements should be in writing and should clearly specify who is and who is not a client whenever the potential for misunderstanding exists.

Ethics Advisory Opinion 08-13

Administrator — Sun, 13 Apr 2008 08:46:29 GMT

Surreptitious recording by a lawyer is ethically permissible only when a) the lawyer is not acting as a lawyer, as a public official, or in any other position of trust and b) such recording is not otherwise prohibited by law.

Ethics Advisory Opinion 08-14

Administrator — Sun, 13 Apr 2008 08:46:29 GMT

A lawyer may file affidavits that include hearsay or information not based on a witness’s personal knowledge in support of ex parte requests or temporary hearings so long as the hearsay or other information is clearly identified as such. The admissibility of that evidence is a matter of substantive law.

Ethics Advisory Opinion 07-01

Administrator — Fri, 13 Apr 2007 08:46:29 GMT

The Committee advises against Lawyer acting as mortgage broker, buyer’s real estate agent, and closing attorney for a client, and notes that it is apparently contrary to existing South Carolina Supreme Court jurisprudence. In particular, the Committee believes that a lawyer cannot satisfy the reasonableness requirement of Rule 1.7(b)(1). If each requirement of Rule 1.7(b) is met, the proposed conduct is permissible. However, a belief that Lawyer ”will be able to provide competent and diligent representation to each affected client” might be considered per se unreasonable under the circumstances. If other law prohibits the multiple roles, the conduct is also ethically prohibited and any remaining inquiry is moot.

Ethics Advisory Opinion 07-02

Administrator — Fri, 13 Apr 2007 08:46:29 GMT

Hiring a non-lawyer employee of the Solicitor’s Office to work concurrently in lawyer’s office on immigration matters while she continues full time work for the Solicitor’s Office entails a risk of potential violations of the confidentiality and conflict of interest provisions of the Rules of Professional Conduct. Nevertheless, subject to strict screening, confidentiality, and supervision procedures, it is not prohibited by the Rules of Professional Conduct.

Ethics Advisory Opinion 07-04

Administrator — Fri, 13 Apr 2007 08:46:29 GMT

Yes, Lawyer(s) in a law firm may purchase uncollected debts from a client, a former client, or a non-client.
Yes, an LLC made up of members of the law firm, may hire the law firm to collect the debt, as long as the lawyers adhere to the Rules of Professional Conduct and applicable state laws.

Ethics Advisory Opinion 07-05

Administrator — Fri, 13 Apr 2007 08:46:29 GMT

1. A lawyer may use different professional and private names.
2. The law firm may maintain a lawyer's former name as part of the firm name.

Ethics Advisory Opinion 07-06

Administrator — Fri, 13 Apr 2007 08:46:29 GMT

There is no violation of Rule 4.5 of Professional Conduct, SCACR, Rule 407, for Lawyer to prepare and send out a collection notice letter on Client's behalf pursuant to S.C. Code §34-11-70.

Ethics Advisory Opinion 07-07

Administrator — Fri, 13 Apr 2007 08:46:29 GMT

Rule 3.7(a) of the Rules of Professional Conduct does not prohibit Lawyer in this arrangement from continued representation because Lawyer’s “testimony relates to the nature and value of legal services rendered in the case.” Further, a second exception allows an attorney to act as a witness when “disqualification of the lawyer would work substantial hardship on the client.” In the contemplated context, the inability of the Client to find other representation may qualify as working a substantial hardship.

Ethics Advisory Opinion 07-08

Administrator — Fri, 13 Apr 2007 08:46:29 GMT

Lawyer may participate in Company’s advertisement as long as Lawyer pays the reasonable costs of the advertisement and ensures that the advertisement complies with the S.C. Rules of Professional Conduct’s provisions on lawyer advertising and communications.

Ethics Advisory Opinion 07-09

Administrator — Fri, 13 Apr 2007 08:46:29 GMT

Yes. Personal delivery of the coupons violates the Rule 7.3(a) prohibition against in-person solicitation. Although the agent or loan originator, not the lawyer, has in-person contact with the prospective client under these facts, a lawyer cannot do indirectly what she is prohibited from doing directly. Also, the coupons likely violate the written solicitation requirements of Rule 7.3(d).

Ethics Advisory Opinion 07-10

Administrator — Fri, 13 Apr 2007 08:46:29 GMT

No Summary - see full text.

Ethics Advisory Opinion 07-03

Administrator — Fri, 13 Apr 2007 08:46:00 GMT

Lawyer may represent clients charged by Sheriff’s Office in County X provided that Sheriff has had no involvement with those clients’ cases, Lawyer discloses her personal relationship with the Sheriff to those clients, and Lawyer obtains a written confirmation of informed consent from those clients.

Ethics Advisory Opinion 06-01

Administrator — Thu, 13 Apr 2006 08:46:29 GMT

If a real estate closing attorney represents a lender or mortgage broker either by express agreement or by implication, the attorney must obtain the informed consent of the lender or mortgage broker confirmed in writing if the attorney will also be representing other parties at the closing. If the attorney cannot obtain such consent, the attorney should not proceed with the closing. However, the attorney may obtain a general, advance consent from the lender or mortgage broker to engage in such multiple representation, so long as no actual conflict of interest arises. See S.C. Rule of Prof. Conduct 1.7, comment 20. An appropriate time to seek such consent would be when the attorney is first engaged by the lender or mortgage broker to handle real estate closings in which the lender or mortgage broker will be making loans.

Ethics Advisory Opinion 06-02

Administrator — Thu, 13 Apr 2006 08:46:29 GMT

Unless the Recording Account is maintained as a lawyer’s trust account in accordance with applicable rules, the transfer of the funds from ABC’s trust account to the Recording Account after closing, but prior to disbursement of the funds in accordance with client requirements and the requirements of the closing, is improper. Until disbursement, the funds remain client funds and must be segregated from the lawyer’s funds and be deposited and disbursed in accord with trust accounting rules. Under the alternate scenario, where the Recording Account is composed of the law firm’s funds only, trust accounting rules do not apply. Reimbursement of closing expenses may be disbursed to the Recording Account from ABC’s trust account. ABC may tender a firm trust account check directly to the clerk of court or other appropriate recording official at the time of recording and satisfy the client requirement that loan funds not be disbursed until recording. Provided the practice is not prohibited by law, the disclosure is made to the lender as well as the seller, the overcharges are not in violation of Rule 1.5, and the clients are not misled about the fact that the overcharges will be kept by the law firm as profit, ABC may retain an overcharge as profit. However, the law firm may not establish its schedule of fees with the intent of creating a profit. The mere fact that the surcharges are minimal is not in and of itself determinative of reasonableness. See ABA Comm. on Ethics and Prof. Resp., Formal Op. 93-379.

Ethics Advisory Opinion 06-03

Administrator — Thu, 13 Apr 2006 08:46:29 GMT

Yes, the closing attorney may disburse funds at the closing table up to the amount of deposited cash equivalents notwithstanding the fact that other cash equivalents for the same transaction have not yet been deposited.

Ethics Advisory Opinion 06-04

Administrator — Thu, 13 Apr 2006 08:46:29 GMT

The defendant's attorney may not settle all claims arising from the lawsuit with the pro se plaintiff and disburse the settlement proceeds to the plaintiff.
The defendant’s attorney must withhold the fees in dispute in her trust account.
The defendant's attorney must withhold the portion of the settlement proceeds in dispute and place them in a trust account until an agreement is reached between the plaintiff and his original attorney, although the defendant's attorney has no client-lawyer relationship with either.

Ethics Advisory Opinion 06-05

Administrator — Thu, 13 Apr 2006 08:46:29 GMT

It is possible that the situation is ethically permissible. A subordinate lawyer must preserve independent professional judgment. See Rule 5.4(c). He must do so even at the peril of losing his employment with the firm. He cannot permit a supervisor to instruct him to act not in accordance with the law or his professional responsibilities, but he may rely on the supervisor's resolution of an ethical obligation. See Rule 5.2. Rule 1.15(f) requires, in part, a lawyer not to disburse funds from an account containing the funds of more than one client or third person unless the funds to be disbursed have been deposited in the account and are collected funds. Rules 5.3(a) and (b) require that someone in the firm actively supervise Bookkeeper 2 regarding the ethical propriety of his or her conduct, and Rule 5.3(c) holds supervisory lawyers responsible, in some circumstances, for any conduct by Bookkeeper 2 that would violate the Rules of Professional Conduct if engaged in by a lawyer. "Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the Rules." Rule 5.2(a). A lawyer's duty under Rule 1.15(f) to ensure that funds in an IOLTA account be deposited and collected prior to disbursement is not arguable under Rule 5.2(b), nor is his duty to enact measures governing non-lawyers' conduct and his duty to appropriately supervise their conduct under Rule 5.3. "Supervision" might reasonably be interpreted to require direct lawyer access to the books and to the IOLTA account and certainly requires actual authority over the bookkeeper. See Rule 5.3, Cmt. [1].

Ethics Advisory Opinion 06-06

Administrator — Thu, 13 Apr 2006 08:46:29 GMT

If the power of attorney previously executed by Elderly Gentleman appoints Daughter as the legal representative, Firm may represent Daughter in this capacity in an action to have Daughter appointed as conservator and guardian ad litem, if no less intrusive action is available. If the power of attorney is not sufficient to designate a legal representative, Firm may petition the court on Firm's own authority for appointment of a conservator and/or guardian but may not represent Daughter as a third party.

Ethics Advisory Opinion 06-07

Administrator — Thu, 13 Apr 2006 08:46:29 GMT

1. No. The exceptions to the unauthorized practice of law set forth in Rule 5.5 for attorneys like Associate who are licensed in a state other then South Carolina were recently addressed in Frequently Asked Question #8 which can be found the SC Bar's web site. Based on the facts presented, Associate appears to fall within an authorized exception to the unauthorized practice of law; consequently, Attorney is not aiding in the unauthorized practice of law.

2. Rule 7.5(a) requires a lawyer to “not use a …letterhead…that violates Rule 7.1” Rule 7.1 prohibits truthful statements that are misleading; that is, statements that omit a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. Including Associate’s name on firm letterhead without any indication of the legal limitations upon Associate’s ability to practice law in South Carolina is misleading since a reasonable person would conclude from viewing the letterhead that no limitations existed and that Associate could engage in the general practice of law in South Carolina.

Ethics Advisory Opinion 06-08

Administrator — Thu, 13 Apr 2006 08:46:29 GMT

Absent a designation of one individual as the authorized representative of the company in a written engagement letter with Lawyer, Lawyer must keep the company book until the dispute is resolved.

Ethics Advisory Opinion 06-09

Administrator — Thu, 13 Apr 2006 08:46:29 GMT

While there is no ethical prohibition to the proposed situation found in the Rules of Professional Conduct, it is incumbent on a lawyer to adhere to Rules 3.7, 3.8, 5.2(a) and 5.4(c). Further, the Committee wishes to stress that the prosecution of all cases must remain in the full discretion of the lawyer.

Ethics Advisory Opinion 06-10

Administrator — Thu, 13 Apr 2006 08:46:29 GMT

Because of the dual representation, Mother’s instructions not to conduct any discovery as to Grandmother’s assets may present a conflict of interest for Lawyer.
It is not significant to the inquiry that Lawyer learned of Grandmother’s assets in a privileged attorney-client communication.
Under Rules 1.7 and 1.16, Lawyer should withdraw from representation of Mother and Minor Child. Lawyer may also need to seek the appointment of a new guardian ad litem for the minor under Rule 1.14.

Ethics Advisory Opinion 06-11

Administrator — Thu, 13 Apr 2006 08:46:29 GMT

Nothing in the Rules of Professional Conduct appears to prohibit Lawyer from representing Seller in a mail-away closing provided the proper conditions as outlined in EAO 05-16 are met; however, the issue of who lawyers represent in a residential real estate closing has not been clearly resolved in South Carolina and caution should be taken.

Nothing in the Rules of Professional Conduct suggests that Lawyer’s obligations are different for clients or unrepresented parties who reside out of state.
Yes, the answer does change if the closing involves Buyer obtaining a mortgage loan.
Having Buyer and Seller (and Lender if applicable) consent to multiple representation and sign an agreement to that effect may be a more prudent way of handling the situation rather than attempting to represent Seller exclusively.

Ethics Advisory Opinion 06-12

Administrator — Thu, 13 Apr 2006 08:46:29 GMT

A lawyer may be employed by an organization where his immediate supervisor is a non-lawyer and the non-lawyer reviews the lawyer’s substantive legal work so long as the lawyer does not allow the non-lawyer supervisor to direct or regulate the lawyer’s professional judgment in a way that contravenes Rule 5.4 and the lawyer does not assist the non-lawyer in practicing law in contravention of Rule 5.5. This Committee does not have jurisdiction over what constitutes the unauthorized practice of law, but it does note that, from the facts presented, it appears that all legal services are rendered by the lawyers on staff; thus, Rule 5.5 is not implicated.

Ethics Advisory Opinion 06-13

Administrator — Thu, 13 Apr 2006 08:46:29 GMT

The Rules of Professional Conduct do not prohibit Attorney or Law Firm from receiving referrals from the Association, provided Attorney and Law Firm do not give anything of value to the Association in exchange for the referrals.

Ethics Advisory Opinion 06-14

Administrator — Thu, 13 Apr 2006 08:46:29 GMT

Under Rule 3.5(e) a lawyer may not contribute to a fund for a deceased judge because the rule prohibits contributions to a “memorial” for a judge except by the authorized procedures of the rule.

Ethics Advisory Opinion 05-01