Ethics Advisory Opinions

In this instance, Lawyer’s representation of Client terminated upon Client’s death, and Lawyer has no authority to act on behalf of Client. Rule 1.16(d) provides that, upon termination of representation, a lawyer shall act to the extent reasonably practicable to protect a client’s interest. In the absence of an estate with an executor and/or personal representative, Lawyer may use their discretion to identify and notify any appropriate potential party(ies) of the existence of a personal injury claim and when the statute of limitations will run. When, as here, the only known successors in interest – i.e., the family – have informed Lawyer that they will not be opening an estate and do not desire to pursue the personal injury claim, Lawyer has satisfied their ethical obligation to protect the deceased client’s interest. As litigation has not commenced, affirmative disclosure of Client’s death to the insurance adjustor is not required as it could possibly prejudice Client or any potential future successor in interest. However, Lawyer should be careful not to misrepresent the vital status of Client.

Only in unusual circumstances where a lawyer’s financial interests are not significantly intertwined with the lawyer’s spouse’s should a lawyer consider referring clients to a pre-settlement funding business owned by a lawyer’s spouse. If either the business of the lawyer’s spouse benefits the lawyer financially or otherwise or the lawyer assists the spouse financially or otherwise in the creation or operation of the spouse’s business, then the lawyer would, by advising a client about or referring a client to the spouse’s business, violate Rule 1.8(e) through the acts of another in violation of 8.4(a). Even if the lawyer does not financially or otherwise contribute to or benefit from the business of the lawyer’s spouse and, thus, is not prohibited under Rule 8.4(a) from referring the client to the business of the lawyer’s spouse, the lawyer should fully disclose the spouse’s interest in the business.

No. Lawyer A would violate Rule 4.2 if Lawyer A communicates directly in any way with the represented purported seller without the consent of Lawyer B, unless the communication is otherwise allowed by law or court order. Lawyer A has an obligation under Rules 1.1 and 1.3 to take all action necessary to verify the seller and protect Lawyer A’s client, but may not employ means that otherwise violate the Rules of Professional Conduct. However, “Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.” Rule 4.2, Cmt. 4.

A lawyer may employ a social worker provided the lawyer adequately informs the social worker of the professional obligations of the lawyer, has measures in place that provide reasonable assurance that the social worker’s conduct is compatible with those obligations, and supervises and is responsible for the work of the social worker. In addition, if a potential conflict exists between the social worker’s obligations as a social worker and the Rules of Professional Conduct, the lawyer should inform the client of the social worker’s potentially conflicting duties and allow the client to make an informed decision whether to consent to the social worker assisting with the client’s case. However, if the lawyer knows or reasonably should know that there is information in the lawyer’s file that will trigger disclosure by the social worker, the lawyer cannot allow the social worker to have access to that information.

Lawyer previously represented both Husband and Wife, so for purposes of Rule 1.9, the questions are: i) whether drafting new documents for Husband with the proposed changes is a “substantially related matter” to drafting the documents for Him, and if so, ii) whether the changes would be “materially adverse” to the interests of Wife; and iii) whether there is any information from the prior representation that could be used to the disadvantage of Wife that was not already shared with Husband during the prior joint representation. The Committee concludes Section 1.9(b) would not apply to this fact situation.

The use of RDS advertising with the format proposed including only the firm name, the word “Call” and the firm phone number complies with Rule 7.2(d) as interpreted and applied in Rule 7.2, Comment 10.

In order to avoid assisting in the unauthorized practice of law, a South Carolina lawyer working in association with an out-of-state lawyer in South Carolina must actively participate in the matter. Active participation requires taking responsibility for the matter and providing the same level of supervision that would be required of the lawyer over a non-lawyer assistant. Once the out-of-state lawyer is granted pro hac vice status, however, the South Carolina lawyer’s responsibilities are reduced to those specifically required by pro hac vice rules. Some of the issues raised in this inquiry cannot be addressed by the Committee because they involve unanswered questions of law regarding cross-border practice, specifically when supervision requires the lawyer’s physical presence with the supervised person, and whether a lawyer may be practicing law in South Carolina without being physically present in this state.

An attorney is permitted to charge his or her hourly rate for potential future time spent testifying as a fact witness relating to the representation, subject to the requirement that the rate must be reasonable. Therefore, an attorney is permitted to include such a provision in the client engagement agreement.

The Ethics Advisory Committee addressed whether the inquirer could limit the scope of representation to assisting in the preparation of pleadings and whether the inquirer would be required to include a disclosure such as “Prepared with the Assistance of Counsel” on any documents that inquirer helped draft. The opinion said the inquirer may limit the scope of representation if such limitation is reasonable and that the inquirer is not required to make an affirmative disclosure of any sort regarding the limited assistance.

In Ethics Advisory Opinion 22-05, the Ethics Advisory Committee addressed whether the inquirer could continue to represent his client in a probate matter if he knows that his client forged the plaintiff’s signature on a beneficiary receipt/release, notarized that forged signature, and then submitted the receipt/release to the probate court to represent that the plaintiff had received the distributions to which she was entitled and released the estate and client from any liability or claims. The opinion said the inquirer may continue to represent the client unless the client intends to use the forged document or make use of its existence in the litigation in any way.