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 93-33
In Advisory Opinions 91-25 and 91-38, this Committee considered the ethical propriety of a lawyer representing the interests of both the injured party and the subrogated insurer in an action against an alleged tortfeasor. Specifically in Advisory Opinion 91-38, the Committee concluded that, as long as the entire fee was reasonable, a lawyer could collect a fee from both clients in such a situation. The South Carolina Supreme Court subsequently has indicated in In the Matter of Jones, Op. No. 23851, refiled July 19, 1993, that a lawyer may not receive both a contingency fee based on the entire recovery and a percentage fee of the subrogated amount. The lawyer should "subtract the subrogated amount from the entire amount recovered before taking his fee from the insured's recovery. The attorney then could take a percentage fee from the amount allocated to the subrogee." To the extent that the advice offered in Advisory Opinion 91-38 may be interpreted as inconsistent with the approach outlined by the Court in Jones, the Advisory Opinion should be disregarded and the procedures set forth in Jones should be followed.