Can a lawyer employ a convicted felon to serve process or do investigative work, and what duties apply?

Plain-English summary

The inquiry asked whether employing a convicted felon for administrative duties (for example, service of process) violates the Rules, and if not, what ethical concerns arise in using his investigative services.

The committee first noted the limit it had drawn elsewhere: South Carolina does not permit employing a resigned, suspended, or disbarred attorney as a paralegal, investigator, or in any other capacity connected with the practice of law (SCACR 413(42)), and a criminal act reflecting adversely on a lawyer's honesty, trustworthiness, or fitness is misconduct that can lead to disbarment (SCACR 407, Rule 8.4). So if the felon is a disbarred or suspended attorney, he may not be employed in any capacity connected with the practice of law. If the felon is not a resigned, suspended, or disbarred attorney, the committee concluded that employing him for service of process and other administrative duties does not expressly violate any South Carolina Rule. The committee then listed the duties that attach. The lawyer must supervise the non-lawyer assistant under Rule 5.3, giving appropriate instruction and supervision on the ethical aspects of the employment. Any investigative work must be only preparatory and subject to the supervision and approval of the licensed attorney to avoid the appearance of unauthorized practice, citing In re Easler, 275 S.C. 400, 272 S.E.2d 32 (1980), and Rule 5.5. The committee also flagged the effect on the attorney-client relationship and public perception: a client generally will not expect a convicted felon to investigate his case, steps must be taken to protect confidential information and ensure the investigator understands his confidentiality obligation (Rule 1.6 and the Comment to Rule 5.3), and the lawyer must consider the implications if the investigator is ever called to testify. It concluded that, so long as the person is not legally incapacitated from performing the services, employing a non-lawyer convicted felon violates no South Carolina Rule, but the employment must be handled with care to ensure compliance with all relevant rules and to maintain public confidence in the profession.

Currency note

This opinion was issued in 1992, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer hire a convicted felon to serve process or do administrative work?

A: The committee said yes, where the person is not a disbarred or suspended attorney: employing a non-attorney convicted felon for service of process and other administrative duties does not expressly violate any South Carolina Rule.

Q: What if the felon is a disbarred or suspended lawyer?

A: Then the committee said no. Under SCACR 413(42), a resigned, suspended, or disbarred attorney may not be employed as a paralegal, investigator, or in any other capacity connected with the practice of law.

Q: What duties apply when the felon does investigative work?

A: The committee said the lawyer must supervise the assistant under Rule 5.3, keep the work preparatory and subject to the attorney's approval to avoid unauthorized practice under Rule 5.5, and protect client confidences under Rule 1.6.

Q: Are there other concerns the committee flagged?

A: Yes. It pointed to the client's likely expectations, public perception, and the adverse impact on the attorney-client relationship if the investigator is later called to testify.

Background and rules framework

The opinion applied Rule 5.3 (responsibilities regarding non-lawyer assistants), Rule 5.5 (unauthorized practice), and Rule 1.6 (confidentiality), each corresponding to the like-numbered Model Rule, along with Rule 8.4 (misconduct) and the court rule SCACR 413(42) on employing disciplined attorneys. The distinction drawn was between a non-attorney felon (employable for administrative or supervised investigative work) and a disbarred or suspended attorney (not employable in any role connected with practice).

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 5.3 / Model Rule 5.3: a lawyer must give non-lawyer assistants appropriate instruction and supervision on the ethical aspects of employment.
• South Carolina RPC 5.5 / Model Rule 5.5: unauthorized practice; non-lawyer work must be preparatory and supervised.
• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality of information relating to the representation.
• South Carolina RPC 8.4 / Model Rule 8.4: a criminal act reflecting adversely on honesty, trustworthiness, or fitness is misconduct.

Other authority:

• South Carolina Appellate Court Rule 413, paragraph 42: a resigned, suspended, or disbarred attorney may not be employed in any capacity connected with the practice of law.

Cases:

• In re Easler, 275 S.C. 400, 272 S.E.2d 32 (1980), non-lawyer work must remain preparatory and supervised to avoid unauthorized practice.

See also

• SC Bar Ethics Op. 92-20: Employing a Disbarred Attorney as a Paralegal
• ABA Ethics Op. 506: Responsibilities Regarding Nonlawyer Assistants

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-26/

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 92-26

Does it violate the Rules of Professional Conduct to employ a convicted felon for administrative duties (e.g. service of process)? If not, what ethical concerns should be addressed to use his investigative services?

Summary:
The employment of a convicted felon to perform administrative services for a lawyer or law firm does not violate any South Carolina Rule of Professional Conduct.

A lawyer employing a convicted felon as an in-house investigator must consider his duty to supervise non-lawyers in his employment, the possible effects of such employment on the attorney-client relationship, a lawyer's obligation toward the tribunal and toward opposing counsel, the general perception of the public, and a lawyer's duty to conscientiously comply with all South Carolina Rules of Professional Conduct.

Opinion:
South Carolina does not permit the employment of a resigned, suspended, or disbarred attorney as a paralegal, investigator, etc., SCACR 413 (42). It is considered professional misconduct for a lawyer to "(C)ommit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects", SCACR 407 (8.4). Such misconduct can result in disbarment. Thus, if the convicted felon is a disbarred or suspended attorney he may not be employed by a firm or lawyer as a paralegal, investigator or in any other capacity connected with the practice of law.

If, however, the convicted felon is not a resigned, suspended, or disbarred attorney, the employment of such individual for the purpose of service of process and other administrative duties does not expressly violate any South Carolina Rule of Professional Conduct.

A lawyer employing a convicted felon must consider it his duty to supervise this non-lawyer assistant as required by SCACR 407 (5.3).

This rule requires that lawyer to give the assistant "appropriate instructions and supervision concerning the ethical aspects of ... employment." Additionally, any work performed by the investigator must only be preparatory in nature and subject to the supervision and approval of the licensed attorney in order to avoid the appearance of the unauthorized practice of law. See In re Easler, 275 S.C. 400, 272 S.E.2d 32 (1980), and SCACR 407 (5.5).

Another consideration is the possible effect such employment may have on the attorney-client relationship as well as on the general public. Generally, a client will not expect a convicted felon to be investigating his case. Steps must be taken to protect confidential information of the client as well as insuring that the investigator understands his obligation not to disclose information relating to the representation of the client. See SCACR 407 (1.6) and comment to SCACR 407 (5.3). The lawyer must also be aware of the possible implications if the convicted felon is ever called to testify in a client's case and the adverse impact it could have on the attorney-client relationship.

In conclusion, so long as the person is not legally incapacitated from performing the services of his employment, the employment of a non-lawyer convicted felon does not violate any South Carolina Rule of Professional Conduct. Such employment, however, must be viewed with care to insure the compliance to all relevant ethical rules and to maintain public confidence in the legal profession.