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 93-24
Lawyer X is a lawyer admitted to practice in the state of Florida. Lawyer X is not admitted to practice in South Carolina. Lawyer X will conduct estate planning seminars in South Carolina in conjunction with a non-lawyer financial planner. South Carolina residents attending the seminar may engage Lawyer X to prepare estate planning documents, to include wills, revocable trusts, and powers of attorney.
Lawyer X has asked Lawyer SC, who is admitted to practice in South Carolina, to be associated with him in connection with his work for the residents of South Carolina. Specifically, Lawyer SC will review all documents prepared for any South Carolina client for conformity with applicable South Carolina law. Lawyer SC will be paid a fee by Lawyer X for his services and will render an opinion in writing to Lawyer X concerning the compliance and conformity of the documents with South Carolina law. Lawyer SC will be identified in writing to the South Carolina residents as the South Carolina lawyer who has been associated to review legal documents to assure compliance with South Carolina law. It is not contemplated that Lawyer SC will participate in any seminar. Lawyer SC will be available to answer directly to any client any questions pertaining to South Carolina law. Lawyer SC will maintain a file of all documents reviewed on behalf of a client.
Question:
Please advise Lawyer SC about the ethical propriety of the contemplated conduct and give instruction and guidance as to the content of written disclosure, disclosure of fee arrangement, record retention, etc.
Summary:
Lawyer X's "work for the residents of South Carolina" would appear to constitute the unauthorized practice of law in this state. South Carolina lawyers are barred by Rule of Professional Conduct 5.5 from assisting in the unauthorized practice of law. South Carolina lawyers are also barred from splitting fees with non-lawyers.
Opinion:
It is obvious that Lawyer X intends to use estate planning seminars as a means of marketing legal services in this state. Lawyer X will be providing legal advice to, and drafting legal documents for, these clients. Though Lawyer SC will review documents, the chief attorney-client relationship will be between the South Carolina clients and Lawyer X. The South Carolina lawyer's involvement is formalistic; it seems designed mainly to make the South Carolina lawyer an overseer of Lawyer X's rendition of legal services to South Carolina residents. The attempt to provide a semblance of quality control would not serve to insulate Lawyer X from unauthorized practice charges.
Lawyer X's activities would appear to constitute the practice of law in this state. As South Carolina's Supreme Court stated in South Carolina Medical Malpractice Joint Underwriting Ass'n v.Froelich, 297 S.C. 400, 402, 377 S.E.2d 306, 307 (1989):
Conduct constituting the practice of law includes a wide range of activities. It is too obvious for discussion that the practice of law is not limited to the conduct of cases in courts. According to the generally understood definition of the practice of law in this country, it embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law. An attorney at law is one who engages in any of these branches of the practice of law. The following is the concise definition given by the Supreme Court of the United States: "Persons acting professionally in legal formalities, negotiations or proceedings by the warrant or authority of their clients may be regarded as attorneys at law within the meaning of that designation as employed in this country." In re Duncan, 83 S.C. 186, 189, 65 S.E. 210, 211 (1909); State Ex. Rel. Daniel, Attorney General, et at. v. Wells, 191 S.C. 468, 473-74, 5 S.E.2d 181, 183 (1939). See also State of South Carolina v. Buyers Service Co Inc., 292 S.C. 426, 357 S.E.2d 15 (1987).
Lawyer X's intended course of conduct clearly falls within the ambit of the practice of law as outlined in Froelich and other cases. Lawyer X, however, is not admitted to practice in South Carolina. Hence, Rule 5.5 prohibits a South Carolina lawyer from assisting Lawyer X by providing oversight or otherwise. Additionally, the contemplated course of conduct may involve Lawyer SC in fee splitting with a non-lawyer, which is prohibited by Rule 5.4.
For a related opinion, see SC Bar Advisory Opinion 91-04 dealing with lawyer assistance to a lay organization wishing to provide individual consultations concerning estate matters.