Can a South Carolina lawyer agree to review documents for an out-of-state lawyer who runs estate-planning seminars and drafts for SC residents?

Plain-English summary

Lawyer X, admitted in Florida but not South Carolina, planned to run estate-planning seminars in South Carolina with a non-lawyer financial planner, after which South Carolina residents could engage him to prepare wills, revocable trusts, and powers of attorney. He proposed to associate Lawyer SC, a South Carolina lawyer, to review the documents for conformity with South Carolina law for a fee paid by Lawyer X; Lawyer SC would render written opinions to Lawyer X, be identified to clients as the reviewing South Carolina lawyer, answer clients' South Carolina-law questions, and keep a file of reviewed documents, without participating in the seminars.

The committee concluded the arrangement was improper. Lawyer X intended to use the seminars to market legal services in South Carolina, providing legal advice and drafting legal documents for residents, so the chief attorney-client relationship would be between those clients and Lawyer X; Lawyer SC's role was formalistic, designed to make him an overseer, and a semblance of quality control would not insulate Lawyer X from unauthorized-practice charges. Drawing on the South Carolina Supreme Court's broad definition of the practice of law (quoting South Carolina Medical Malpractice Joint Underwriting Ass'n v. Froelich and In re Duncan), the committee found Lawyer X's conduct fell within the practice of law; because he was not admitted in South Carolina, Rule 5.5 prohibited a South Carolina lawyer from assisting him by providing oversight or otherwise. The committee added that the contemplated course of conduct might involve Lawyer SC in fee splitting with a non-lawyer, prohibited by Rule 5.4, and pointed to Advisory Opinion 91-04 on lawyer assistance to a lay organization offering estate consultations.

Currency note

This opinion was issued in 1993, 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 Treat this page as historical context, not current guidance.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: Was the out-of-state lawyer's plan the unauthorized practice of law?

A: The committee concluded it would appear to be. Lawyer X, not admitted in South Carolina, would provide legal advice and draft estate documents for South Carolina residents, conduct that falls within the state's broad definition of the practice of law.

Q: Could the South Carolina lawyer's document review fix the problem?

A: No. The committee called the reviewing lawyer's role formalistic and said a semblance of quality control would not insulate Lawyer X from unauthorized-practice charges; Rule 5.5 barred the South Carolina lawyer from assisting.

Q: Was there a fee-splitting problem too?

A: Yes. The committee said the contemplated arrangement might involve the South Carolina lawyer in fee splitting with a non-lawyer, which Rule 5.4 prohibits.

Background and rules framework

The opinion applied Rule 5.5 (unauthorized practice of law) and Rule 5.4 (professional independence; fee sharing with non-lawyers), which correspond to like-numbered Model Rules. It relied on South Carolina case law defining the practice of law broadly.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 5.5 / Model Rule 5.5: a lawyer shall not assist a person in the unauthorized practice of law.
• South Carolina RPC 5.4 / Model Rule 5.4: a lawyer shall not share legal fees with a non-lawyer.

Cases:

• South Carolina Medical Malpractice Joint Underwriting Ass'n v. Froelich, 297 S.C. 400, 377 S.E.2d 306 (1989), defining the practice of law broadly.
• In re Duncan, 83 S.C. 186, 65 S.E. 210 (1909); State ex rel. Daniel v. Wells, 191 S.C. 468, 5 S.E.2d 181 (1939); State v. Buyers Service Co., 292 S.C. 426, 357 S.E.2d 15 (1987).

Other opinions cited:

• SC Bar Advisory Opinion 91-04 (lawyer assistance to a lay organization offering estate consultations).

See also

• SC Bar Ethics Op. 04-13: Out-of-State Supervising Partners
• SC Bar Ethics Op. 02-12: Paralegals and Living Wills
• SC Bar Ethics Op. 00-16: Debt-Firm Referral Fees

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-24/

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 93-24

Lawyer X is a lawyer admitted to practice in the state of Florida. Lawyer X is not admitted to practice in South Carolina. Lawyer X will conduct estate planning seminars in South Carolina in conjunction with a non-lawyer financial planner. South Carolina residents attending the seminar may engage Lawyer X to prepare estate planning documents, to include wills, revocable trusts, and powers of attorney.

Lawyer X has asked Lawyer SC, who is admitted to practice in South Carolina, to be associated with him in connection with his work for the residents of South Carolina. Specifically, Lawyer SC will review all documents prepared for any South Carolina client for conformity with applicable South Carolina law. Lawyer SC will be paid a fee by Lawyer X for his services and will render an opinion in writing to Lawyer X concerning the compliance and conformity of the documents with South Carolina law. Lawyer SC will be identified in writing to the South Carolina residents as the South Carolina lawyer who has been associated to review legal documents to assure compliance with South Carolina law. It is not contemplated that Lawyer SC will participate in any seminar. Lawyer SC will be available to answer directly to any client any questions pertaining to South Carolina law. Lawyer SC will maintain a file of all documents reviewed on behalf of a client.

Question:
Please advise Lawyer SC about the ethical propriety of the contemplated conduct and give instruction and guidance as to the content of written disclosure, disclosure of fee arrangement, record retention, etc.

Summary:
Lawyer X's "work for the residents of South Carolina" would appear to constitute the unauthorized practice of law in this state. South Carolina lawyers are barred by Rule of Professional Conduct 5.5 from assisting in the unauthorized practice of law. South Carolina lawyers are also barred from splitting fees with non-lawyers.

Opinion:
It is obvious that Lawyer X intends to use estate planning seminars as a means of marketing legal services in this state. Lawyer X will be providing legal advice to, and drafting legal documents for, these clients. Though Lawyer SC will review documents, the chief attorney-client relationship will be between the South Carolina clients and Lawyer X. The South Carolina lawyer's involvement is formalistic; it seems designed mainly to make the South Carolina lawyer an overseer of Lawyer X's rendition of legal services to South Carolina residents. The attempt to provide a semblance of quality control would not serve to insulate Lawyer X from unauthorized practice charges.

Lawyer X's activities would appear to constitute the practice of law in this state. As South Carolina's Supreme Court stated in South Carolina Medical Malpractice Joint Underwriting Ass'n v.Froelich, 297 S.C. 400, 402, 377 S.E.2d 306, 307 (1989):

Conduct constituting the practice of law includes a wide range of activities. It is too obvious for discussion that the practice of law is not limited to the conduct of cases in courts. According to the generally understood definition of the practice of law in this country, it embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law. An attorney at law is one who engages in any of these branches of the practice of law. The following is the concise definition given by the Supreme Court of the United States: "Persons acting professionally in legal formalities, negotiations or proceedings by the warrant or authority of their clients may be regarded as attorneys at law within the meaning of that designation as employed in this country." In re Duncan, 83 S.C. 186, 189, 65 S.E. 210, 211 (1909); State Ex. Rel. Daniel, Attorney General, et at. v. Wells, 191 S.C. 468, 473-74, 5 S.E.2d 181, 183 (1939). See also State of South Carolina v. Buyers Service Co Inc., 292 S.C. 426, 357 S.E.2d 15 (1987).

Lawyer X's intended course of conduct clearly falls within the ambit of the practice of law as outlined in Froelich and other cases. Lawyer X, however, is not admitted to practice in South Carolina. Hence, Rule 5.5 prohibits a South Carolina lawyer from assisting Lawyer X by providing oversight or otherwise. Additionally, the contemplated course of conduct may involve Lawyer SC in fee splitting with a non-lawyer, which is prohibited by Rule 5.4.

For a related opinion, see SC Bar Advisory Opinion 91-04 dealing with lawyer assistance to a lay organization wishing to provide individual consultations concerning estate matters.