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 97-29
Lawyers practicing in a small law firm are appointed to represent indigent clients or juveniles in family court, or to serve as guardians ad litem in family court matters, on numerous occasions throughout the year.
QUESTION:
When a member of the firm has been appointed by the court to represent a person, does a law firm violate Rule of Professional Conduct 6.2 if it contracts with another lawyer, not a member or associate of the law firm, to provide that representation?
SUMMARY:
The law firm does not violate Rule of Professional Conduct 6.2 merely by contracting with another lawyer to provide the appointed representation. However, the appointed lawyer should ensure that any necessary steps are taken to substitute counsel in the matter with the court's permission, with proper notice to the client.
OPINION:
Rule of Professional Conduct 6.2 imposes an ethical duty upon a lawyer to "not seek to avoid appointment by a tribunal to represent a person except for good cause." The Comment to Rule 6.2 adds that an "individual lawyer fulfills this responsibility by accepting a fair share of unpopular matters or indigent or unpopular clients."
As a provider of professional services, a lawyer must put the interests of clients ahead of the lawyer's own financial interests and be prepared to make services available from time to time to persons who cannot otherwise afford them. The Comment to Rule 6.2 recognizes that it is a shared responsibility among lawyers to provide indigent services. It would be inappropriate, therefore, for one lawyer to attempt to avoid appointed service in a manner that unfairly increased the burden imposed upon another lawyer.
A lawyer appointed by the court to represent a client, however, may believe that the client would be better served by referral of the matter to another lawyer with more experience or more time to devote to the cause. The lawyer should notify client that the substitution of counsel is being sought. If the lawyer wishes to refer the appointed client to another lawyer and to compensate the second lawyer for undertaking the representation in his or her stead, the purposes of Rule 6.2 are fulfilled. The client receives the appointed legal representation and the second lawyer, who actually handles the matter, does not bear an unfair share of the economic burden.
There is, therefore, no inherent ethical bar to the contractual arrangement proposed. However, when an appointed client is properly referred to another lawyer, the lawyer originally appointed should ensure that all necessary court approval is obtained for the substitution of counsel in the matter.