At a magistrate's docket meeting, may a lawyer ask for a continuance on behalf of another lawyer who is absent, and may a lawyer move to dismiss cases for other lawyers who did not ask the lawyer to act?

Plain-English summary

A magistrate's court docket meeting was set, and the cover letter warned that affiants or prosecuting witnesses who failed to appear would be treated as no longer wishing to prosecute, with dismissal on proper motion, and that a defendant who failed to appear could be tried in absentia. The inquiry presents two scenarios. In the first, Lawyer A (who rents office space from Lawyer B but has no other business relationship with him) is asked by Lawyer B to appear and request a continuance because Lawyer B cannot attend. In the second, Lawyers C and D and their defendant clients fail to appear, the affiants in their cases are also absent, and Lawyer A, who has no relationship with C, D, or any party and was not asked to act, considers moving to dismiss those cases.

On the first scenario, the committee concluded Lawyer A may appear to request a continuance. The committee assumed that, given the limited scope of the appearance, no attorney-client relationship would form between Lawyer A and Lawyer B's client, and it treated the office-sharing arrangement as irrelevant so long as Lawyer B safeguards the confidentiality of his client's information under Rule 1.6. The committee added that under Rule 1.4(a) it is Lawyer B's responsibility to tell his own client that Lawyer A will request the continuance.

On the second scenario, the committee concluded Lawyer A may not move to dismiss the cases for Lawyers C and D without their consent or an attorney-client relationship with one of the parties. Rule 8.4(e) makes it improper to engage in conduct prejudicial to the administration of justice, and the committee pointed to the Preamble (a lawyer's special responsibility for the quality of justice, and guidance by personal conscience and professional peers). Because Lawyer A could not know what arrangements C, D, or the parties had made, a well-meant motion could harm those clients or the affiants. The committee also cautioned that acting contrary to the opinion could inadvertently create an attorney-client relationship with C's or D's client, implicating other rules.

In practice

The opinion holds that, under the South Carolina rules as they stood at the time, a lawyer may stand in at a docket meeting to request a continuance for an absent lawyer who asked for that help, with the absent lawyer (not the appearing lawyer) responsible under Rule 1.4(a) for keeping his own client informed and under Rule 1.6 for protecting client confidences despite an office-sharing arrangement. The opinion also holds that a lawyer may not take affirmative steps such as moving to dismiss on behalf of other lawyers or parties without their consent or an attorney-client relationship, because doing so may be prejudicial to the administration of justice under Rule 8.4(e) and may inadvertently create an attorney-client relationship.

Common questions

Q: Can a lawyer ask for a continuance on behalf of a lawyer who cannot make it to court?

A: Yes, where the absent lawyer requested it. The committee concluded Lawyer A may appear to request a continuance for Lawyer B, treating the appearance as limited in scope so that no attorney-client relationship forms with Lawyer B's client.

Q: Does sharing office space with the absent lawyer change the analysis?

A: No. The committee said the office-sharing arrangement is irrelevant so long as the absent lawyer ensures the confidentiality of his client's information under Rule 1.6.

Q: Who must tell the client that another lawyer will appear?

A: The client's own lawyer. The committee said that under Rule 1.4(a) it is solely Lawyer B's responsibility to advise his client that Lawyer A will request the continuance.

Q: Can a lawyer move to dismiss cases for other lawyers who did not ask for help?

A: No. The committee concluded that without the other lawyers' consent or an attorney-client relationship with a party, moving to dismiss would be improper under Rule 8.4(e) and could inadvertently create an attorney-client relationship.

Background and rules framework

The opinion interprets South Carolina Rule 1.4(a) (keeping a client reasonably informed), Rule 1.6 (confidentiality of information), and Rule 8.4(e) (conduct prejudicial to the administration of justice), which correspond to the like-numbered Model Rule provisions, together with the Preamble to the South Carolina Rules of Professional Conduct. The analysis turns on whether the appearing lawyer was authorized by the absent lawyer and whether an attorney-client relationship exists with the affected party.

Citations and references

Rules of Professional Conduct:

• MR 1.4 / SC Rule 1.4(a) (keeping the client reasonably informed)
• MR 1.6 / SC Rule 1.6 (confidentiality of information)
• MR 8.4 / SC Rule 8.4(e) (conduct prejudicial to the administration of justice)
• Preamble to the South Carolina Rules of Professional Conduct (paragraphs 1 and 7)

See also

• SC Bar Ethics Op. 08-11: Office-Sharing Opposing Counsel
• SC Bar Ethics Op. 09-08: Paying a Special Referee's Fee

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-09-11/
• Original PDF: https://www.scbar.org/media/l5vnonzy/09-11.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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 09-11

SC Rules of Professional Conduct : Preamble, 1.4(a), 1.6, 8.4(e)

Facts

The Magistrate’s Court Docket Meeting is scheduled, and the cover letter that was mailed to all parties includes a provision that failure by Affiants or Prosecuting Witnesses to appear will result in the Court assuming that they no longer wish to prosecute the case and, upon proper motion, will dismiss the case. The letter further provides if a Defendant fails to appear, a jury will be selected and the Defendant will be tried in absentia.

Scenario #1 :

Both Lawyer A and Lawyer B are scheduled to attend the Docket Meeting. Lawyer B cannot attend and has requested Lawyer A to speak on his behalf to request the Court to continue the case. Lawyer A rents office space with Lawyer B but otherwise has no business relationship or association.

Scenario #2 :

Lawyer A, Lawyer C and Lawyer D are scheduled to attend the Docket Meeting. Lawyer C and Lawyer D do not attend, nor do either of their clients who are Defendants in Affiant cases. At the Docket Meeting, neither Affiant is present for the cases handled by Lawyers C and D. Lawyer A has no business relationship or association with Lawyer C or Lawyer D, and neither Lawyer C nor Lawyer D requested Lawyer A to act on their behalf.

Questions

1) May Lawyer A appear on behalf of Lawyer B without the knowledge or permission of Lawyer B’s client to request the matter be continued?

2) May Lawyer A move, on behalf of Lawyer C and Lawyer D, to dismiss each case due to the Affiant’s failure to appear to prosecute the matters?

Summary

1) Yes, a lawyer may appear on behalf of another lawyer to request a continuance.

2) No, a lawyer may not act on behalf of another lawyer or a non-client without consent from the lawyer or entering into an attorney-client relationship with the non-client.

Opinion

Scenario #1 :

While attorney-client relationships can be formed in a variety of ways, for the purposes of this scenario, the Committee assumes that, based on the limited scope of Lawyer A’s appearance at the Docket Hearing, no attorney-client relationship would be formed between Lawyer A and Lawyer B’s client.

Lawyer A may appear on behalf of Lawyer B to request a continuance. It is irrelevant as to Lawyer A sharing offices with Lawyer B so long as Lawyer B ensures the confidentiality of his client’s information in accordance with S.C. Rule of Professional Conduct 1.6.

Lawyer B is well-advised to communicate with his client pursuant to S.C. Rule of Professional Conduct 1.4(a). Since there is no attorney-client relationship between Lawyer A and Lawyer B’s client, it is solely within Lawyer B’s responsibility to advise his client that Lawyer A will request a continuance on his behalf.

Scenario #2 :

When Lawyer A has no relationship or association with Lawyer C, Lawyer D or the parties in the case, Lawyer A may not make a motion to dismiss a case on behalf of one party without consent from the Lawyer or entering into an attorney-client relationship with the client. S.C. Rule of Professional Conduct 8.4(e) provides that it is improper for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Without consent from Lawyer C or Lawyer D or being in an attorney-client relationship with one of the parties, it would be improper for Lawyer A to act on their behalf.

Furthermore, the Committee would direct Lawyer A to review the Preamble to the South Carolina Rules of Professional Conduct. Paragraph 1 provides that a lawyer has “special responsibility for the quality of justice,” and Paragraph 7 advises that “a lawyer is also guided by personal conscience and the approbation of professional peers.” Without prior discussions with Lawyer C, Lawyer D or the parties to the litigation, Lawyer A is unable to know what arrangements have been made, and while Lawyer A may think he is being helpful to Lawyer C or Lawyer D, he may, in fact, cause harm to Lawyer C client, Lawyer D’s client or the Affiants in the case.

Lawyer A should also be cautioned that if he were to act contrary to this opinion, he may inadvertently create an attorney-client relationship between himself and Lawyer C’s client or Lawyer D’s client which could result in several other rules being implicated.