Must appointed defense counsel personally pay an investigator for work the indigent-defense commission refused to cover?

Plain-English summary

The inquirer was appointed under Rule 608 to represent an indigent person in a criminal matter and chose an outside investigator to assist, to be paid by the South Carolina Commission on Indigent Defense (CID) subject to CID rules. The inquirer instructed the investigator not to do any work until she was pre-approved for reimbursement by CID. The investigator began work without pre-approval, CID refused to pay for the work done before approval, and the investigator demanded that the inquirer personally pay the unpaid portion, citing In re Jackson, 365 S.C. 176, 617 S.E.2d 123 (2005). The inquiry asked whether the inquirer has an ethical obligation to pay the amounts CID did not.

The committee concluded the answer is no. It noted that it does not render legal opinions, but observed that In re Jackson addressed counsel's failure to pay invoices that were admittedly due, and that the court cited Rule 1.15 for the proposition that a lawyer shall promptly deliver funds to which a third party is entitled. Nothing in the South Carolina Rules of Professional Conduct requires counsel to serve as a guarantor of payment to investigators in Rule 608 cases. Provided there was no contractual obligation incurred by the inquirer (a matter on which the committee expressed no opinion), the inquirer had no ethical obligation to supplement payments made by CID.

In practice

The opinion holds that, under the South Carolina Rules of Professional Conduct, appointed counsel under Rule 608 has no ethical duty to personally supplement what the Commission on Indigent Defense pays an investigator, absent a contractual obligation. The opinion reads In re Jackson narrowly, as addressing a lawyer's failure to pay invoices admittedly due under Rule 1.15's duty to promptly deliver funds a third party is entitled to, rather than imposing a guarantee of vendor payment. The opinion expressly does not decide whether a contractual obligation existed here.

Common questions

Q: Does appointed counsel have to pay an investigator out of pocket when the indigent-defense commission won't?

A: No, absent a contract. The committee said nothing in the Rules requires counsel to serve as a guarantor of payment to investigators in Rule 608 cases, so without a contractual obligation there is no ethical duty to supplement CID's payments.

Q: Doesn't In re Jackson require the lawyer to pay?

A: Not on these facts. The committee said In re Jackson addressed a lawyer's failure to pay invoices that were admittedly due, citing Rule 1.15's duty to promptly deliver funds a third party is entitled to, which is different from guaranteeing a vendor's bill.

Q: Does it matter that the investigator worked before getting CID approval?

A: It is part of the picture. The committee noted the inquirer had instructed the investigator not to work until pre-approved, the investigator worked anyway, and CID refused that portion; absent a contractual obligation by the lawyer, there was no ethical duty to pay it.

Background and rules framework

The opinion interprets the South Carolina Rules of Professional Conduct in the context of an appointment under Rule 608, SCACR, with the relevant rule being Rule 1.15 (a lawyer's duty to promptly deliver funds a third party is entitled to), corresponding to Model Rule 1.15. The analysis turns on the distinction between a debt admittedly due (as in In re Jackson) and a vendor's claim where the lawyer incurred no contractual obligation.

Citations and references

Rules of Professional Conduct:

• MR 1.15 / SC Rule 1.15 (prompt delivery of funds a third party is entitled to)

Court rules:

• Rule 608, SCACR (appointment of counsel for indigent defendants)

Cases:

• In re Jackson, 365 S.C. 176, 617 S.E.2d 123 (2005), failure to pay invoices admittedly due

See also

• SC Bar Ethics Op. 05-08: Honoring a Subrogation Claim From Settlement Funds
• SC Bar Ethics Op. 12-01: Trust Surplus on Another Matter

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-13-02/
• Original PDF: https://www.scbar.org/media/t2xj1dbs/13-02.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 13-02

Facts

Inquirer was appointed pursuant to Rule 608 to represent an indigent person in a criminal matter. Inquirer chose an outside investigator to assist with the matter. The investigator was to be paid by the South Carolina Commission on Indigent Defense (CID), subject to CID rules and guidelines. Inquirer instructed the investigator not to do any work until she was pre-approved for reimbursement by CID.

The investigator started the work without pre-approval. CID refused to pay for the work done in advance of approval. The investigator then demanded payment from Inquirer for the portion of her bill not paid by CID, citing In Re Jackson, 365 S.C. 176, 617 S.E.2d 123 (2005), in her demand letter.

Question:

Does Inquirer have an ethical obligation to pay the investigator amounts not paid by CID?

Summary:

No. In Re Jackson addressed counsel’s failure to fulfill a contractual commitment to a court reporter. Where there is no such legal obligation, the Rules of Professional Conduct do not impose any ethical requirement that counsel supplement CID payments.

Opinion:

The crux of this inquiry concerns how broadly attorneys should interpret the principles announced in In Re Jackson, 365 S.C. 176, 617 S.E.2d 123 (2005). This Committee does not render legal opinions. However, a cursory review of In Re Jackson and the authority cited therein reflects that the Court’s opinion addressed counsel’s failure to pay invoices that were admittedly due. Notably, the Court cited Rule 1.15 for the proposition that “lawyer shall promptly deliver funds to which a third party is entitled.” Id. (emphasis added)

Nothing in the South Carolina Rules of Professional Conduct requires counsel to serve as a guarantor of payment to investigators in Rule 608 cases. Provided there was no contractual obligation incurred by Inquirer – a matter on which we express no opinion – Inquirer had no ethical obligation to supplement payments made by CID.