Ethics Advisory Opinions

A lawyer may employ a social worker provided the lawyer adequately informs the social worker of the professional obligations of the lawyer, has measures in place that provide reasonable assurance that the social worker’s conduct is compatible with those obligations, and supervises and is responsible for the work of the social worker. In addition, if a potential conflict exists between the social worker’s obligations as a social worker and the Rules of Professional Conduct, the lawyer should inform the client of the social worker’s potentially conflicting duties and allow the client to make an informed decision whether to consent to the social worker assisting with the client’s case. However, if the lawyer knows or reasonably should know that there is information in the lawyer’s file that will trigger disclosure by the social worker, the lawyer cannot allow the social worker to have access to that information.

Lawyer previously represented both Husband and Wife, so for purposes of Rule 1.9, the questions are: i) whether drafting new documents for Husband with the proposed changes is a “substantially related matter” to drafting the documents for Him, and if so, ii) whether the changes would be “materially adverse” to the interests of Wife; and iii) whether there is any information from the prior representation that could be used to the disadvantage of Wife that was not already shared with Husband during the prior joint representation. The Committee concludes Section 1.9(b) would not apply to this fact situation.

The use of RDS advertising with the format proposed including only the firm name, the word “Call” and the firm phone number complies with Rule 7.2(d) as interpreted and applied in Rule 7.2, Comment 10.

In order to avoid assisting in the unauthorized practice of law, a South Carolina lawyer working in association with an out-of-state lawyer in South Carolina must actively participate in the matter. Active participation requires taking responsibility for the matter and providing the same level of supervision that would be required of the lawyer over a non-lawyer assistant. Once the out-of-state lawyer is granted pro hac vice status, however, the South Carolina lawyer’s responsibilities are reduced to those specifically required by pro hac vice rules. Some of the issues raised in this inquiry cannot be addressed by the Committee because they involve unanswered questions of law regarding cross-border practice, specifically when supervision requires the lawyer’s physical presence with the supervised person, and whether a lawyer may be practicing law in South Carolina without being physically present in this state.

An attorney is permitted to charge his or her hourly rate for potential future time spent testifying as a fact witness relating to the representation, subject to the requirement that the rate must be reasonable. Therefore, an attorney is permitted to include such a provision in the client engagement agreement.