Ethics Advisory Opinions

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.

The Ethics Advisory Committee addressed whether the inquirer could limit the scope of representation to assisting in the preparation of pleadings and whether the inquirer would be required to include a disclosure such as “Prepared with the Assistance of Counsel” on any documents that inquirer helped draft. The opinion said the inquirer may limit the scope of representation if such limitation is reasonable and that the inquirer is not required to make an affirmative disclosure of any sort regarding the limited assistance.