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 96-14
Jane Doe is a member of the South Carolina Bar with a practice limited to estate planning, federal income tax matters and closely held corporation issues. She has been asked by John Roe, another member of the S.C. Bar to establish a legal defense fund for his benefit. John Roe is a retired municipal court judge, who believes he will be the subject of a South Carolina State Grand Jury indictment covering alleged acts or omissions related to his tenure as a municipal court judge.
Jane Doe has no attorney-client relationship with John Roe and no involvement in any manner with the Grand Jury or the subject matters of the Grand Jury. She has no contact with his defense attorneys and will not assist in his defense.
Her role will be limited to establishing the John Roe Legal Defense Fund and serving as its trustee. As trustee she shall solicit funds in writing from selected individuals, deposit the funds in a non-interest bearing checking account and maintain records of all expenditures and receipts. These records will be available to all contributors and any other person or entity, including the South Carolina Bar, on a need to know basis. The trustee shall determine the appropriateness of each expenditure, which shall be limited to payment of legal fees, investigation fees and costs directly related to the defense of John Roe. The trustee shall accept no fee and shall be reimbursed only for normal and customary bank charges associated with the account. Funds remaining after conclusion of the case shall be returned to the contributors based upon a pro-rata formula.
Question:
Is a member of the bar permitted to establish and serve as trustee of a Legal Defense Fund for the benefit of a former judge?
Summary:
Jane Doe, a member of the bar, whose practice has not required her to practice in the court of a retired municipal judge, who has no attorney-client relationship with the retired judge and who is not and will not be involved either in the Grand Jury activities that may subject him to indictment or in his defense, is not barred by an ethical rule from establishing and serving as the trustee of a Legal Defense Fund for the retired judge's benefit.
Opinion:
Assuming that (a) John Roe is a retired judge not subject to recall, and (b) that in any event Jane Doe is unlikely to practice in municipal court, there is no potential violation of S.C.R.P.C. 3.5 which bars a lawyer from seeking "to influence a judge, juror, [or] member of the jury venire". S.C.R.P.C. 1.8(f) would bar John Roe's defense counsel from accepting compensation from the proposed legal defense fund unless (1) Roe consented after consultation, (2) there was no interference with either the defense counsel's "independence of professional judgment or with the client-lawyer relationship," and (3) information relating to the representation was protected as required by Rule 1.6. Because Jane Doe is acting at the request of John Roe, it may be assumed that Roe consented to the third-party payment. Moreover, nothing in the proposal suggests any intention by the defense fund trustee to be involved in or to direct the activities of defense counsel. Defense counsel bears responsibility under Rule 1.6 not to disclose information relating to the representation to anyone, including the defense fund trustee, without prior consent, which consent may be impliedly authorized by the client's instructions to counsel.