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 97-33
Lawyer is licensed in South Carolina. He maintains an office outside of South Carolina. He wants to conduct real estate closings in his out of state office. He will then record all documents in the appropriate South Carolina county.
QUESTION:
Is there any ethical requirement that an attorney licensed to practice law in South Carolina must physically perform the closing of real property located in the state within the boundaries of South Carolina?
SUMMARY:
An Attorney licensed to practice law in South Carolina is not ethically prohibited from physically performing a closing for South Carolina real estate outside of the boundaries of South Carolina.
OPINION:
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) Since the committee does not issue opinions on questions of law, an attorney considering participating in a closing of this type should review applicable statutory provisions and common law principles in all relevant jurisdictions to determine whether such a transaction is legal. The comment to Rule 8.5 dealing with jurisdiction states:
In modern practice lawyers frequently act outside the territorial limits of the jurisdiction in which they are licensed to practice, either in another state or outside the United States. In doing so, they remain subject to the governing authority of the jurisdiction in which they are licensed to practice. If their activity in another jurisdiction is substantial and continuous, it may constitute practice of law in that jurisdiction. See Rule 5.5. If the rules of professional conduct in the two jurisdictions differ, principles of conflict of laws may apply. Similar problems can arise when a lawyer is licensed to practice in more than one jurisdiction.
If the transaction is illegal, an attorney may not ethically participate. South Carolina Rule of Professional Conduct 1.2(d), 8.4(b). However, if there are no legal barriers, there is nothing per se unethical about an attorney licensed to practice law in South Carolina physically performing the closing for South Carolina real property outside of the boundaries of South Carolina. This panel has found no Rule of Professional Conduct that specifically prohibits an attorney licensed in South Carolina from physically performing a real estate closing for South Carolina real property outside of state boundaries. Furthermore, the panel has found no Ethical Considerations or past Advisory Opinions that specifically discuss this issue.
Therefore, it is the opinion of the South Carolina Bar Ethics Advisory Committee that as long as all legal requirements are met, there is nothing per se unethical about an attorney licensed to practice law in South Carolina physically performing the closing for South Carolina real property outside of the boundaries of South Carolina.