Can a South Carolina city hire a law firm (rather than a single attorney) to be its city attorney on a contract basis, and if a lawyer at the firm also sits on a school board, does that violate dual-office-holding rules?

Plain-English summary

Senator Campsen asked the AG two related questions about a common arrangement in South Carolina municipal practice. First: can a city hire a law firm (rather than a single individual lawyer) as its outside city attorney? Second: if one of the firm's lawyers also serves on a local school board, does that lawyer's representation of the city through the firm create a "dual office holding" problem under Art. XVII, § 1A of the South Carolina Constitution?

The AG agreed with Senator Campsen on both points. The answer is yes to the first question, and no to the second, with one important condition: the law firm cannot prosecute criminal cases or supervise the city's prosecutor.

The reasoning runs through three steps:

Step 1: Can the city hire a firm rather than an individual? Yes. The starting point is S.C. Code § 5-7-230, which says "the city council may elect or appoint a municipal attorney." The literal text says "a municipal attorney" (singular), and a series of early AG opinions read that to require a single person. But the AG opinions evolved. After Home Rule (1975), and especially after the South Carolina Supreme Court's Williams v. Town of Hilton Head Island (1993), municipalities have broad authority to do anything not inconsistent with the Constitution and general law. The General Assembly did not have to expressly authorize hiring a firm, and a law firm is itself a single entity that can satisfy the literal "a municipal attorney" requirement.

Step 2: Does the retention create an "office"? No, as long as four conditions are met:

1. The firm is engaged on a contractual basis through an engagement letter.
2. The firm provides legal guidance and representation in civil matters only, on an as-needed and part-time basis.
3. The firm does not serve as city prosecutor, does not prosecute criminal cases, and does not supervise the city's prosecutor.
4. The firm is not appointed and does not take an oath of office.

When those conditions are satisfied, the engagement is "independent contractor" work, not office-holding. The AG has been refining this position since a 1993 opinion (Lake City, S.C.) and has reaffirmed it across multiple opinions (1998 Greenwood, 2003, 2006 Spartanburg, 2010, 2024).

Step 3: What about the lawyer at the firm who also sits on a school board? If the engagement is independent-contractor work and not office-holding (per Step 2), then no "office" is being held in connection with the city attorney representation. The lawyer's school board seat is a constitutional office, but the lawyer's work for the city is not an office. So the dual-office-holding prohibition is not triggered.

The opinion also notes a useful structural fact: under the ordinances in question, each city has separately appointed a prosecutor who does take an oath. The firm represents the city in civil matters; the separately-appointed prosecutor handles criminal matters. That clean separation makes the independent-contractor analysis for the firm even clearer.

What this means for you

If you serve on a South Carolina city council

You can retain a law firm as your outside city attorney for civil matters. To stay clear of dual-office-holding issues and to preserve the independent-contractor characterization:

• Use a written engagement letter that explicitly states the firm is engaged for civil matters only and will not prosecute criminal cases.
• Adopt an ordinance like the model ones the opinion references (Secs. 2-210 and 2-211 of the various municipalities involved): "The City Attorney may be an individual or law firm" combined with a separate "Council may retain separate legal counsel to serve as City Prosecutor."
• Do not require the firm or its lawyers to take an oath of office.
• Do not give the firm a fixed term beyond "until a successor is duly retained and qualified."
• Make sure the prosecutor function is handled by someone else (a separate lawyer or firm).

If you do this right, the firm and its lawyers can serve in other constitutional offices (school board, county council, etc.) without triggering a dual-office problem.

If you are a lawyer at a firm that represents municipalities

The opinion confirms that as long as your work for the city is civil-only, by engagement letter, no oath, and you are not the prosecutor, your representation is independent-contractor work. That means you can also hold a constitutional office (e.g., a school board seat) elsewhere without running afoul of Art. XVII, § 1A.

But watch for scope creep. If the city slides you into supervising the prosecutor, having you take an oath, or appointing you to a fixed term, the analysis flips and you become an office-holder. The conditions are conjunctive: lose one, and the protection weakens.

If you are a city prosecutor or part-time municipal prosecutor

Note that your role does constitute an office-holding position. You take an oath, you exercise sovereign power (prosecution), and your function is the prosecutor's function. The dual-office-holding rules apply to you, even when the city attorney function (which is separately handled by a firm) does not implicate them. Keep your role distinct.

If you sit on a school board or hold another constitutional office and your firm represents municipalities

The AG opinion provides comfort. If your firm's engagement with the municipalities satisfies the four conditions above, your firm representation is not an office, and your school board seat is not in conflict.

But be careful about two things. First, if the engagement is restructured in a way that gives you an office-like role (oath, prosecution, fixed term), the protection disappears. Second, conflict-of-interest rules under the Rules of Professional Conduct are separate from the dual-office-holding analysis. The AG is not addressing whether the work creates ethical conflicts; you still have to apply Rule 1.7 (concurrent client conflicts) and related rules.

If you advise municipalities on contracting practices

The opinion is a useful template. Three takeaways:

1. Home Rule does the heavy lifting. Williams v. Town of Hilton Head Island effectively abolished Dillon's Rule, so the absence of express statutory authorization for hiring a firm is not a barrier.
2. The four-factor test is sticky. Engagement letter, civil matters only, no oath / no fixed term, separate prosecutor. Hitting all four creates the cleanest independent-contractor characterization.
3. The prosecution function is the key disqualifier. Almost every AG opinion in this line emphasizes that the city attorney is an office-holder if they prosecute criminal cases or supervise the prosecutor. Keep prosecution out of the firm's scope.

Common questions

Q: Can a South Carolina municipality hire a law firm as its city attorney?
A: Yes, under S.C. Code § 5-7-230 and Home Rule. The literal "a municipal attorney" language was once read as singular only, but post-Home Rule case law and a string of AG opinions since 1993 confirm that a firm can be the "a single entity" required by the statute.

Q: Does retaining a law firm as city attorney create an "office" for dual-office-holding purposes?
A: No, if four conditions hold: the firm is engaged on a contractual basis, by engagement letter, for civil matters only, without an oath. The firm cannot serve as city prosecutor.

Q: What about prosecuting traffic tickets or zoning violations?
A: The opinion does not parse types of "criminal" prosecution. The safer reading is that any case prosecuted by the city as the prosecuting authority (traffic, zoning enforcement, criminal misdemeanors) should be handled by a separately-appointed city prosecutor, not by the city attorney firm.

Q: Does this protection extend to every lawyer in the firm?
A: Yes, when the firm (not the individual lawyer) is the contracting party. The opinion specifically addresses a litigation partner who sits on a school board: because the firm represents the city, not the individual lawyer, and because the firm's engagement is independent-contractor work, the lawyer's school board seat is not in conflict.

Q: Does the city attorney need to take an oath?
A: An office-holder city attorney would. An independent-contractor city attorney (the structure this opinion addresses) does not. The opinion treats not taking an oath as one of the factors supporting independent-contractor status.

Q: What if a city wants to make the city attorney an office-holder?
A: A municipality can structure its city attorney role either way. If it wants an office-holder, the council appoints an individual (not a firm), the attorney takes an oath, serves a fixed term, possibly prosecutes criminal cases. That structure does create an office and dual-office-holding rules apply. The independent-contractor structure is one option, not a requirement.

Q: Are these arrangements common in South Carolina?
A: Increasingly, yes. The opinion notes that "[a] large South Carolina law firm currently represents several municipalities" using this structure. Many smaller SC municipalities cannot afford a full-time in-house attorney, so the firm-as-outside-counsel arrangement is the practical norm.

Q: What is Home Rule and why does it matter here?
A: Home Rule is the 1975 SC statute (codified at S.C. Code § 5-7-10 et seq.) that broadened municipal authority. Williams v. Town of Hilton Head Island (1993) confirmed that Home Rule effectively abolished Dillon's Rule, the doctrine that required express or implied statutory authority for every municipal act. After Home Rule, the question is no longer "did the legislature authorize this?" but "is this inconsistent with the Constitution or general law?"

Background and statutory framework

The structural analysis the AG used has been built up over several decades through AG opinions and one key Supreme Court case.

Pre-Home Rule (before 1975): Early AG opinions read § 5-7-230 strictly. Under Dillon's Rule, a municipality could only do what the legislature expressly or implicitly authorized. § 5-7-230 said "a municipal attorney" (singular), so an early 1977 opinion concluded a law firm could not be retained as city attorney. Around the same time, AG opinions held that the city attorney position constituted an "office" within the dual-office-holding prohibition.

1975: Home Rule. Act 283 of 1975, codified at S.C. Code § 5-7-10 et seq., gave municipalities broad authority to govern themselves. The legislature's intent, per the SC Constitution Art. VIII, § 17 (which requires laws on local government to be "liberally construed"), was to abandon the cramped Dillon's Rule analysis.

1993: Williams v. Town of Hilton Head Island (311 S.C. 417, 429 S.E.2d 802 (1993)). The SC Supreme Court explicitly held that Home Rule "intended to abolish the application of Dillon's Rule in South Carolina and restore autonomy to local government." Municipalities now have authority to enact regulations "deemed necessary and proper for the security, general welfare and convenience of the municipality," obviating the requirement for further specific statutory authorization, as long as the regulations are not inconsistent with the Constitution and general law.

1993: Lake City AG opinion (Op. S.C. Att'y Gen., 1993 WL 720127). First major reframing. The AG concluded that the city attorney position in Lake City was independent-contractor work because: the ordinance allowed "election or retention" by contract, no specific term was required, no oath was required, and the attorney would not prosecute criminal cases. The AG modified its prior contrary opinions "to the extent necessary."

1998: Greenwood AG opinion (Op. S.C. Att'y Gen., 1998 WL 746925). Reaffirmed the Lake City framework. The Greenwood city attorney was retained by contract, took no oath, did not prosecute criminal cases, and worked part-time. The AG concluded the position was independent-contractor work, not office-holding, so a person could simultaneously serve as Greenwood city attorney and as Master-in-Equity for Abbeville County.

2006: Spartanburg AG opinion (Op. S.C. Att'y Gen., 2006 WL 3199988). Applied the same framework to a Deputy City Attorney position. Four factors: part-time, no oath, no fixed term, no criminal prosecution / no supervision of prosecutors. Conclusion: not an office for dual-office-holding purposes.

2024: AG opinion (Op. S.C. Att'y Gen., 2024 WL 3566018). Restated the core principle: "There are no relevant constitutional limitations on what municipalities may or may not do with city attorneys." Reaffirmed that the AG "has consistently interpreted S.C. Code § 5-7-230 to permit altering the scope of a city attorney's duties or defining the parameters by which he is to undertake those duties so long as the ordinance is consistent with the constitution and state law."

2025 (this opinion). Brings the firm-as-city-attorney question and the dual-office-holding-by-a-firm-lawyer question together for the first time. Conclusion: both work, under the same four-factor test.

The statutory hook (S.C. Code § 5-7-230) still says "a municipal attorney," but the AG reads "a" to encompass a firm as a "single entity." Combined with Home Rule, this gives municipal councils the flexibility to choose between an office-holder city attorney (individual, oath, fixed term, prosecutor) and an independent-contractor city attorney (firm or individual, engagement letter, civil matters, no oath, no fixed term).

Citations

• S.C. Code § 5-7-230 (Municipal attorney; appointment)
• S.C. Code § 5-7-10 et seq. (Home Rule Act)
• S.C. Code § 5-7-30 (Municipal powers)
• S.C. Const. art. XVII, § 1A (Dual office holding prohibition)
• S.C. Const. art. VIII, § 17 (Liberal construction)
• Williams v. Town of Hilton Head Island, 311 S.C. 417, 429 S.E.2d 802 (1993)
• Op. S.C. Att'y Gen., 1981 WL 158080 (Dec. 21, 1981) (older view, modified)
• Op. S.C. Att'y Gen., 1993 WL 720127 (June 11, 1993) (Lake City, foundational opinion)
• Op. S.C. Att'y Gen., 1998 WL 746925 (Sept. 14, 1998) (Greenwood)
• Op. S.C. Att'y Gen., 2003 WL 221172242 (Sept. 8, 2003)
• Op. S.C. Att'y Gen., 2006 WL 3199988 (Oct. 11, 2006) (Spartanburg Deputy)
• Op. S.C. Att'y Gen., 2010 WL 3896166 (Sept. 10, 2010)
• Op. S.C. Att'y Gen., 2024 WL 3566018 (July 18, 2024)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-regarding-the-ability-of-a-municipality-to-retain-a-law-firm-to-serve-as-outside-city-attorney-on-a-contractual-basis-and-to-clarify-any-dual-office-holding-implications/
• Original PDF: https://www.scag.gov/media/25vnrfof/campseng-os-11000-final-opinion-3-17-2025.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

March 17, 2025

The Honorable George E. "Chip" Campsen III
Chairman
Fish, Game and Forestry Committee
P.O. Box 142
Columbia, SC 29202

Dear Chairman Campsen:

You seek an opinion regarding "the ability of a municipality to retain a law firm to serve as outside City attorney on a contractual basis and to clarify any dual-office holding implications." Your letter concludes that, consistent with § 5-7-230, a municipality possesses authority to retain a law firm to advise it as city attorney, so long as the firm does not prosecute criminal cases. Your view is that such retention does not create an "office" for purposes of dual office holding prohibitions. We agree with your analysis, as explained more fully below.

Specifically, your letter provides the following summary:

A large South Carolina law firm currently represents several municipalities within my Senate District. The law firm is engaged by each municipality on a contractual basis to provide legal guidance and represent each municipality in civil matters as outside city attorney on an as needed and part-time basis. The law firm does not serve as city prosecutor, does not prosecute criminal cases, and does not supervise the prosecutor of the municipality. Each of the local municipalities that have retained the law firm as outside city attorney have also appointed a separate city prosecutor, and the prosecutor does take an oath of office, unlike the law firm. Finally, the law firm is not appointed and does not take an oath of office, but it is instead retained by the municipality pursuant to an engagement letter. The terms of the engagement letters between the law firm and municipalities state:

The Firm is being engaged on a contractual basis to provide legal guidance and represent the City in civil matters as outside City Attorney on an as needed and part-time basis pursuant to the terms of this engagement letter. The Firm is not serving as City Prosecutor and will not prosecute criminal cases on behalf of the City.

Additionally, each of the local municipalities involved with the subject law firm have adopted substantially similar ordinances, which generally read as follows:

Sec. 2-210. - Retention of City Attorney.

(a) Council shall retain a City Attorney, who shall serve at the pleasure of Council, until a successor is duly retained and qualified. The City Attorney may be an individual or law firm. Any lawyer(s) rendering services as City Attorney shall be admitted to practice law in South Carolina and shall be members of the South Carolina Bar in good standing.

Sec. 2-211 - City Prosecutor.

Council may retain separate legal counsel to serve as City Prosecutor, who shall serve at the pleasure of Council. The City Prosecutor shall be admitted to practice law in South Carolina and shall be a member of the South Carolina Bar in good standing.

As referenced, all of the local municipalities that have retained the law firm as outside city attorney have also appointed a separate city prosecutor, and the prosecutor does take an oath of office, unlike the law firm.

S.C. Code Ann. § 5-7-230 states in pertinent part that, "[t]he city council may elect or appoint a municipal attorney ... whose duties shall be as prescribed by law." Under the statute, this is an optional power that belongs solely to city council, regardless of the form of government (council form, mayor-council form, or the council-manager form). While the statute refers to a singular municipal attorney, here, a single entity (law firm) has been retained as outside city attorney, and another lawyer not affiliated with the law firm has been appointed by council to serve as the municipal prosecutor.

[The remainder of the opinion reviews the line of AG opinions from 1981 through 2024 and the Williams v. Town of Hilton Head Island case. See the linked PDF for the complete text.]

Conclusion

For all the foregoing reasons, we agree with your analysis. Consistent with § 5-7-230, a municipality possesses authority to retain a law firm to advise it as city attorney, so long as the firm does not prosecute criminal cases. In such event, the retention of the law firm does not create an "office" for purposes of the dual office holding provisions in the South Carolina Constitution.

A municipality has broad authority under Home Rule to create such a retention agreement and adopt ordinances in support thereof so long as the retention does not conflict with State law. In our opinion, based upon the authorities referenced in your letter, it does not.

As you note, the ordinances in question regarding the status of the City Attorney, as well as the terms of engagement letter, make it clear that the municipal councils involved are retaining the law firm only for the purpose of advice in civil matters on an as needed and part time basis. The Firm is not serving as City Prosecutor and will not prosecute criminal cases on behalf of the City. In our view, this approach is consistent with Home Rule, § 5-7-230, and our prior opinions. Based upon the information referenced in your letter, the municipalities may proceed with this approach. Our 1993 opinion and subsequent opinions, discussed herein, support such an approach as valid and legal.

Robert D. Cook
Solicitor General