Ethics Advisory Opinion 90-38

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 90-38

Client C.D.S. (employee) is employed by C.C. (employer) and is injured on the job by a machine which is maintained, under contract, by H (maintenance company). H's maintenance of the machine include the improper removal of a safety switch without the knowledge of C.C. or C.D.S. C.D.S. is seriously injured. Attorney B contacts C.D.S in C.D.S.'s home, when an officer of C.C. brings B there; and B takes C.D. as a client on a contingency fee basis. Attorney B is also C.C.'s attorney.

A Workers Compensation hearing is scheduled, but attorney B delays this hearing so that, hopefully, H, alone (and not C.C.) will be liable (as third party who caused the injury). This hearing has never taken place (after more than six months). Settlement with H, has not been reached (after nearly two years). C.D.S. has now come to Attorney X for advice.

Questions:
Is the conduct of Attorney B any violation of the Rules of Professional Conduct? If these facts should be taken as improper ethical conduct, what action should be taken under the Rules by Attorney X?

Summary:
Question as to Attorney B's conduct are not prospective in nature and are consequently not appropriate for comment by the committee.

If Attorney X's believes that Attorney B has committed a violation of the Rules of Professional Conduct that raises a substantial question as to his honesty, trustworthiness, or fitness as a lawyer, Rule 8.3 (a) requires that Attorney X inform the appropriate professional authority.

Opinion:
The Ethics Advisory Committee exists to provide attorneys with opinions as to prospective conduct only. The committee does not sit in judgment on past conduct of the inquiring attorney or any other attorney.

Rule 8.3 (a) provides that a lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority. Attorney X may wish to review the Rules of Professional Conduct closely before forming an opinion as to whether Attorney B has violated any portion of the rules. If Attorney X concludes that he has, there would then be a duty to inform the appropriate professional authority.

After reviewing the rules, Attorney X may wish to secure further information from your client or from the other attorney. In the alternative, Attorney X may prefer to discuss aspects of the rules with the client and allow the client to determine whether to discuss the actions of Attorney B with that attorney or to report them to the appropriate professional authority.