If a South Carolina lawyer cannot reach opposing counsel to continue a hearing that conflicts with a trial, can the lawyer take the case only on the condition that the hearing is continued?
Apply this to your situation
This page answers the general question as of 1997. Ezel answers yours: whether it's allowed on your facts, under the current South Carolina Rules of Professional Conduct, with citations.
Plain-English summary
A prospective client arrived at a lawyer's office after being served with family court pleadings, including a motion for temporary relief set for a specific time. The lawyer was already scheduled for trial in another court at that same time and, after several attempts over two or three days, could not reach opposing counsel to arrange a continuance, with the hearing date imminent.
The committee concluded the lawyer could take the case, but only on the condition that the matter be continued. The committee characterized this as a common problem and stated the lawyer must tell the client he can take the case only on that condition. The lawyer cannot take the case and then leave the client unrepresented at the hearing, and a lawyer may not routinely take cases knowing he will not appear and simply obtain continuances indefinitely.
The committee grounded the answer in Rule 1.3, which requires a lawyer to act with reasonable diligence and promptness, and in the Preamble's statements that a lawyer should use the law's procedures only for legitimate purposes, not to harass or intimidate, and should uphold the legal process.
Currency note
This opinion was issued in 1997, 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 Treat this page as historical context, not current guidance.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: Could the lawyer accept a case when a hearing conflicted with a scheduled trial?
A: The committee concluded yes, but only on the condition that the conflicting hearing be continued; the lawyer had to tell the client he could take the case only on that condition.
Q: Could the lawyer accept the case and just not appear at the hearing?
A: No. The committee stated the lawyer cannot take the case and leave the client unrepresented at the hearing.
Q: Can a lawyer routinely take cases planning to obtain continuances?
A: No. The committee stated a lawyer may not routinely take cases knowing he will not appear and simply obtain continuances indefinitely, citing the diligence duty in Rule 1.3.
Background and rules framework
The opinion applied South Carolina RPC 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client), corresponding to the like-numbered Model Rule, and drew on the Preamble to the Rules of Professional Conduct, which states that a lawyer should use the law's procedures only for legitimate purposes and should uphold the legal process.
Citations and references
Rules of Professional Conduct:
- South Carolina RPC 1.3 / Model Rule 1.3: reasonable diligence and promptness.
- South Carolina Rules of Professional Conduct, Preamble: legitimate use of legal procedures and respect for the legal process.
See also
Source
- Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-04/
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 97-04
Client presents himself in lawyer's office having been served with family court pleadings including a motion for temporary relief scheduled for a specific time and date. Lawyer would like to represent client, however, he is scheduled to be in trial in another court at the same time the motion for temporary relief is scheduled to be heard. Lawyer attempts to contact opposing counsel for a continuance, but after several attempts over two or three days he is unable to reach opposing counsel. The schedule date for the motion for temporary relief is imminent.
Summary:
A lawyer may not serve as an intermediary in a matter in which the lawyer's law firm appears as counsel for one of the participants. It does not matter whether the intermediary is a partner or only an associate of the law firm. Consent cannot cure the conflict of interest when the intermediary's law firm actually represents one of the parties to the dispute.
Opinion:
Yes. This is a common problem in the practice of law. The lawyer must tell the client that he can only take the case upon the condition of its being continued.
He cannot take the case and leave the client unrepresented at the hearing. A lawyer may not routinely take cases knowing that he will not appear and simply obtain continuances indefinitely.
Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client.
The Preamble to Rules of Professional Conduct also provides (in part):
A lawyer should use the law's procedures only for legitimate
purposes and not to harass or intimidate others. A lawyer
should demonstrate respect for the legal system and for
those who serve it, including judges, other lawyers, and
public officials. While it is a lawyer's duty, when
necessary, to challenge the rectitude of official action,
it is also a lawyer's duty to uphold the legal process.
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