UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 04-13
RULES 1.7(b), 5.2, AND 5.4(c)
Facts
A lawyer licensed in South Carolina is an associate in the South Carolina office of a multi-state firm, some of whose members are licensed in other jurisdictions but not in South Carolina. The South Carolina associate of the multi-state firm has inquired as to the ethical propriety of the South Carolina office being staffed only by associates.
Question
May a South Carolina law office with associates licensed in South Carolina be supervised by partners or other supervisory lawyers not licensed in South Carolina?
Summary
A lawyer may practice law under the supervision of a lawyer not licensed in South Carolina but must comply fully with the South Carolina Rules of Professional Conduct.
Opinion
There is no requirement that lawyers licensed to practice law in South Carolina work only for other lawyers so licensed. Indeed, associates often are licensed in several states and report to lawyers not necessarily licensed in those same states. Those associates may handle South Carolina legal matters in this state or a foreign state. Hence, it is possible for a South Carolina law office to have only associates licensed in South Carolina and not have a partner either so licensed or present.
Whether an office so staffed by associates comports with S.C. Code Ann. 33-19-101, et. seq., is a legal issue and thus beyond the purview of the committee.
A subordinate lawyer is bound by the Rules of Professional Conduct even if he acts at the direction of another lawyer. See Rule 5.2. Section b creates a safe harbor if the associate acts in accordance with a partner’s reasonable resolution of an arguable question of professional duty. It does not permit the associate to act in a manner which would violate conduct required by the Rules and case law. For example, a practice permitted by the ethics rules in another state but not in South Carolina could not be undertaken in South Carolina by the associate.
The associate must preserve independent professional judgment. See Rule 5.4(c). He must do so at the peril of losing his employment with the firm. He cannot permit a partner to instruct him to act not in accordance with the law or his professional responsibilities whether that partner is or is not licensed in South Carolina. (One might also argue that Rule 1.7(b) regarding influence by a third person comes into play, but the committee believes that rule is not intended to address the interplay between a partner and an associate.)