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 95-15
1. Is it proper for a former law clerk to a circuit court judge to list his experience with the judge on a firm announcement?
2. Is it permissible for an attorney to practice as a sole practitioner in City A and simultaneously practice in a partnership in City B?
Summary:
A former law clerk to a circuit court judge may list his experience with a circuit court judge on a law firm announcement. Disclosure of this information may be allowed in order to provide information inviting the attention of those seeking legal assistance.
It is permissible for an attorney to practice law as a sole practitioner in City A and simultaneously practice law in a partnership in City B. Although permissible, the attorney must proceed with care, insuring that no conflicts of interest exist between the lawyer and the client.
Opinion:
Whether a former law clerk can include judicial clerkship experience on a firm announcement requires balancing the likelihood that disclosure will create unjustified expectations against the need to bring legal services to more people. In determining this matter, it is necessary to analogize a position as a former law clerk with the prohibition of former judge. In Nassau County, New York Ethics opinion 91-4, the Nassau County Bar Association held that a lawyer who was formerly a judge may include that information in advertising in newspapers, magazines, and telephone directories so long as the information is not misleading or deceptive.
Rule 7.1 of the South Carolina Rules of Professional Conduct states: A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. Communication is false or misleading if it: (a) contains a material misrepresentation of fact or law, or admits a fact necessary to make the statement considered as a whole not materially misleading; (b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law; or (c) compares the lawyer' s services with other lawyers' services unless the comparison can be factually substantiated.
The comment to Rule 7.1 states that the above noted provision governs all communications about a lawyer's services including advertising permitted under Rule 7.2. Rule 7.2(a) states the following: Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication. The comment to Rule 7.2 states: The public dissemination of information is allowed concerning a lawyer's name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services, payment, credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.
If lawyer advertising avoids false, misleading or deceptive representation or cohesive misleading solicitation, it advances the good of bringing needed legal services to more people than are now being served. Ohio Bar Opinion 93-8 states that a former judge returning to private practice may not use such titles as "Judge", "Honorable" or "Former Judge" on letterhead or business cards. A former judge can include a factual statement, however, of prior judicial position on a firm announcement card or legal directory. As stated in Illinois Bar Opinion 92-10, the inclusion of titles such as "Former Judge" or "Retired Judge" on business cards creates an unjustified expectation of results that can be obtained. This danger is not as great when the only information disclosed is a brief factual statement of position previously held by an attorney contained within a firm announcement and legal directory.
An attorney's former service as a law clerk to a circuit court judge is information that might invite the attention of someone seeking legal assistance. As endorsed by Rule 7.2, the disclosure of an attorney's former position as a law clerk may provide the potential client with the assurance that the attorney is familiar with the operation of the court and competent to adequately represent the client's interest. Without any express prohibition on disclosing former judicial clerkship experience, but allowing information that might invite legal assistance, the South Carolina Rules of Professional Conduct allow an attorney to disclose his former position as a law clerk for a circuit court judge.
In regards to whether an attorney can practice law as a sole practitioner in one city while practicing as a lawyer in another, no express prohibition is contained within the South Carolina Rules of Professional Conduct. In ABA Informal Ethics Opinion No. 1253, the American Bar Association stated that a lawyer may be associated with more than one law firm, but he must actually practice at each location. The lawyers at each firm must avoid any activity or relationship that would impair the independent professional judgment to which each client is entitled. In ABA Informal Opinion No. 1315, referring to New York State Opinion No. 231, the ABA recognized that a lawyer may be a member of two law firms. In Nassau County, New York Opinion 94-14, the Nassau County Bar Association held that a lawyer may practice as a partner in one firm and maintain a separate office as a sole practitioner in another.
The lawyer must understand that his duty of loyalty to the client may affect his sole practice and those lawyers associated with the partnership. By imputed disqualification, lawyers with the partnership shall not knowingly represent a client when any one of them, including the lawyer in question, would be prohibited from doing so under the South Carolina Rules of Professional Conduct (SCACR 407, Para. 1.10). Comment to Rule 1.10 states that in conflict of interest cases, a firm of lawyers is essentially one lawyer for purposes of the rule governing the loyalty to a client. The lawyer in question must guard his loyalty to the client with care and caution. South Carolina Rules of Professional Conduct, Rules 1.7 - 1.9 govern the lawyer's loyalty to the client and possible conflicts and should be adhered to by the lawyer in question. In conclusion, an attorney may practice law as a sole practitioner in one city and as a partner in another as long as no conflict of interest exists which may affect his loyalty to a client.