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 97-26
Can Attorney buy the structured part of the settlement under the same terms offered by a company which is in the business of purchasing structured settlements and not violate any ethical obligations to Client?
SUMMARY:
Attorney can purchase the structured settlement from Client provided Attorney complies with the requirements of Professional Conduct Rule 1.8(a).
OPINION:
Rule 1.8(a) deals specifically with the situation where a lawyer wishes to do business with a client. Because of the obvious danger of a conflict of interest, the requirements are strict, but if complied with, a transaction between Attorney and Client as described here can occur.
Of course, all of the other duties of attorneys to clients prescribed by the other ethical rules still apply, such as loyalty, competence, diligence and determining that Client is not suffering under a disability, and so, if Attorney believes that the transaction, whether with the structured settlement company or with Attorney, is not in the best interest of Client, Attorney should so advise, and do so in writing. There may be times when the transaction is so unfair to Client that Attorney prefers not to be involved. If all rules are met, however, there is nothing inherently wrong with the transaction.