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 92-08
An associate in a firm litigates medical malpractice cases. The associate wants to start a professional corporation with the purpose of acting as a consultant for attorneys and health care facilities. He/she intends to advertise the business as assisting attorneys to evaluate damage in personal injury claims and to hospitals as a consultant in risk management matters. He/she is a registered nurse.
Questions:
1. May a lawyer operate such a business while being an associate and/or partner in a firm that handles medical malpractice litigation and personal injury claims?
2. Would this business be "law related" and if so what implications would that have on advertising using a trade name and soliciting business by direct mail or telephone?
3. May the associate represent him/herself as a registered nurse and attorney and be denominated a "nurse attorney" for the purpose of implying special knowledge or expertise in analyzing medical records, medical incidents, and physician testimony?
4. May the lawyer use a trade name?
Summary:
The lawyer may operate a business such as you describe. This business would involve the practice of law and, as such, would be governed by the Rules of Professional Conduct. Subject to those Rules, you may use a trade name and advertise by written or recorded communication.
Opinion:
1. There appears to be no ethical prohibition from conducting the business described while remaining an associate or partner in a firm, so long as conflicts do not arise between cases or clients of the law firm and those of the business. Potential conflicts must be evaluated on a case-by-case basis.
2. It is the opinion of the committee that the business described involves the practice of law, in that at least a portion, and probably a large portion, of the business would involve legal advice, and this is one of the reasons you think you have a service to offer.Lawyers are allowed to use a trade name. See Rules 7.5 and 7.1. Because your business involves the practice law, the lawyer is bound by Rule 7.3 (a), which prohibits in-person or live telephone contact with potential clients. Rule 7.3 (b) allows written or recorded communications with prospective clients, provided all requirements of that Rule are met.
3. There is no prohibition from representing oneself as a "nurse attorney," providing both are true. (See SCACR 407, 7.4(b)).
4. As stated above, the lawyer may use a trade name.