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 93-35
Lawyer X, who presently resides and practices law in South Carolina, has been asked to become associated with Lawyer Y, a Florida lawyer, for the purpose of assisting the Florida lawyer in estate planning for South Carolina residents.
Question:
In light of Advisory Opinion 93-24 is there a permissible arrangement whereby Lawyers X and Y may work together in estate planning for South Carolina residents?
Summary:
Subject to certain limitations, as long as the South Carolina lawyer remains responsible for the representation of the South Carolina residents for whom the two lawyers are doing work, they may serve as co-counsel for purposes of estate planning for the South Carolina residents.
Opinion:
The South Carolina Rules clearly contemplate an arrangement whereby an out-of-state lawyer may become associated with a South Carolina lawyer for joint representation of a client. See Rule 413, Section 1, Section A; Rule 404, SCACR. See also Comment, Rule 8, SCACR 407. Interstate practice is commonplace in present practice. The practice of law across state lines is governed by law, not ethics. ABA Informal Op. No. 1059 (1969). The situation commonly involves the association by an in-state lawyer with an out-of-state lawyer who specializes in a particular area of practice.
The propriety of becoming associated with an out-of-state lawyer to assist in the representation of South Carolina residents is subject to several limitations.
The South Carolina lawyer may not serve merely as a conduit for the out-of-state lawyer, but must be jointly responsible for the representation of the South Carolina client. If the out-of- state lawyer assumes primary responsibility for representing the client, and the South Carolina lawyer's involvement is merely perfunctory, the South Carolina lawyer may be tacitly permitting the unauthorized practice of law by the out-of-state lawyer. This would be a violation of the Rules of Professional Conduct. See Advisory Opinion No. 93-24.
Second, if the South Carolina lawyer has reason to believe that the out-of-state lawyer improperly solicited the clients, such as would have been the case under the facts of Advisory opinion No. 93-24, he may not thereafter become associated with the out-of-state lawyer for the representation of those clients. To do so would ratify and approve the improper solicitation of the clients by the out-of-state lawyer. Rule 8.3(a).
Third, if the out-of-state lawyer's activity in South Carolina becomes "substantial and continuous," as opposed to simply an occasional association, his activity may be deemed to be the practice of law such that he will be required to become admitted to the South Carolina Bar. Comment, Rule 8.5. The South Carolina lawyer should be aware of this limitation, because to permit the "substantial and continuous" activity to continue could be construed as assisting in the unauthorized practice of law. Rule 5.5(b) See SC Medical Malpractice Joint Underwriting Ass'n. v. Froelich, 297 SC 400, 377 SE 2d 306 (1989).
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