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 92-26
Does it violate the Rules of Professional Conduct to employ a convicted felon for administrative duties (e.g. service of process)? If not, what ethical concerns should be addressed to use his investigative services?
Summary:
The employment of a convicted felon to perform administrative services for a lawyer or law firm does not violate any South Carolina Rule of Professional Conduct.
A lawyer employing a convicted felon as an in-house investigator must consider his duty to supervise non-lawyers in his employment, the possible effects of such employment on the attorney-client relationship, a lawyer's obligation toward the tribunal and toward opposing counsel, the general perception of the public, and a lawyer's duty to conscientiously comply with all South Carolina Rules of Professional Conduct.
Opinion:
South Carolina does not permit the employment of a resigned, suspended, or disbarred attorney as a paralegal, investigator, etc., SCACR 413 (42). It is considered professional misconduct for a lawyer to "(C)ommit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects", SCACR 407 (8.4). Such misconduct can result in disbarment. Thus, if the convicted felon is a disbarred or suspended attorney he may not be employed by a firm or lawyer as a paralegal, investigator or in any other capacity connected with the practice of law.
If, however, the convicted felon is not a resigned, suspended, or disbarred attorney, the employment of such individual for the purpose of service of process and other administrative duties does not expressly violate any South Carolina Rule of Professional Conduct.
A lawyer employing a convicted felon must consider it his duty to supervise this non-lawyer assistant as required by SCACR 407 (5.3).
This rule requires that lawyer to give the assistant "appropriate instructions and supervision concerning the ethical aspects of ... employment." Additionally, any work performed by the investigator must only be preparatory in nature and subject to the supervision and approval of the licensed attorney in order to avoid the appearance of the unauthorized practice of law. See In re Easler, 275 S.C. 400, 272 S.E.2d 32 (1980), and SCACR 407 (5.5).
Another consideration is the possible effect such employment may have on the attorney-client relationship as well as on the general public. Generally, a client will not expect a convicted felon to be investigating his case. Steps must be taken to protect confidential information of the client as well as insuring that the investigator understands his obligation not to disclose information relating to the representation of the client. See SCACR 407 (1.6) and comment to SCACR 407 (5.3). The lawyer must also be aware of the possible implications if the convicted felon is ever called to testify in a client's case and the adverse impact it could have on the attorney-client relationship.
In conclusion, so long as the person is not legally incapacitated from performing the services of his employment, the employment of a non-lawyer convicted felon does not violate any South Carolina Rule of Professional Conduct. Such employment, however, must be viewed with care to insure the compliance to all relevant ethical rules and to maintain public confidence in the legal profession.