Must a South Carolina lawyer physically conduct the closing of South Carolina real estate inside the state, or can the lawyer close at an out-of-state office?

Plain-English summary

A lawyer licensed in South Carolina kept an office outside the state and wanted to conduct closings of South Carolina real estate at that out-of-state office, recording the documents afterward in the appropriate South Carolina county. The question was whether any ethical requirement compelled the lawyer to perform the closing physically within South Carolina's boundaries.

The committee concluded there was no such ethical requirement. It treated the permissibility of practicing across state lines as a question of law rather than ethics, citing ABA Informal Opinion 1059 (1969), and noted that because it does not opine on questions of law, a lawyer contemplating this kind of closing should review the applicable statutes and common-law principles in all relevant jurisdictions to determine whether the transaction is legal. The committee quoted the comment to Rule 8.5, observing that lawyers frequently act outside the territorial limits of the jurisdiction in which they are licensed but remain subject to the disciplinary authority of the jurisdiction that licensed them, and that substantial and continuous activity elsewhere may constitute the practice of law in that other state.

The committee added that if the transaction were illegal, the lawyer could not ethically participate, citing South Carolina RPC 1.2(d) and 8.4(b). But where no legal barrier exists, it found nothing per se unethical about a South Carolina lawyer physically performing the closing of South Carolina real property outside the state. The panel located no Rule of Professional Conduct, ethical consideration, or prior advisory opinion specifically prohibiting or addressing the practice.

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 Treat this page as historical context, not current guidance.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: Does an ethics rule require a South Carolina real estate closing to happen inside the state?

A: The committee concluded no. It found no Rule of Professional Conduct, ethical consideration, or prior advisory opinion requiring a South Carolina lawyer to conduct the closing of South Carolina real property within the state's boundaries.

Q: Is whether a lawyer can close out of state an ethics question at all?

A: The committee treated interstate practice as governed by law, not ethics, and declined to opine on the legal question; it directed the inquirer to review applicable statutes and common law in all relevant jurisdictions.

Q: When would conducting an out-of-state closing be unethical?

A: The committee stated that if the transaction itself were illegal, the lawyer could not ethically participate, citing Rules 1.2(d) and 8.4(b).

Background and rules framework

The opinion turned on South Carolina RPC 8.5 (disciplinary authority over lawyers acting outside the licensing jurisdiction) and its comment, and referenced RPC 5.5 (practice of law in another jurisdiction), RPC 1.2(d) (a lawyer may not counsel or assist conduct the lawyer knows is criminal or fraudulent), and RPC 8.4(b) (misconduct), each corresponding to the like-numbered Model Rule. The committee framed the substantive permissibility of interstate closings as a matter of law outside its purview.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 8.5 / Model Rule 8.5: disciplinary authority over lawyers practicing across jurisdictions.
• South Carolina RPC 5.5 / Model Rule 5.5: practice of law in another jurisdiction.
• South Carolina RPC 1.2(d) / Model Rule 1.2: counseling or assisting illegal conduct.
• South Carolina RPC 8.4(b) / Model Rule 8.4: misconduct.

Other opinions cited:

• ABA Informal Opinion 1059 (1969): interstate practice of law.

See also

• SC Bar Ethics Op. 00-16: Debt-Firm Referral Fees
• SC Bar Ethics Op. 03-01: Local Counsel and Rule 1.8(h)

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-33/

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 97-33

Lawyer is licensed in South Carolina. He maintains an office outside of South Carolina. He wants to conduct real estate closings in his out of state office. He will then record all documents in the appropriate South Carolina county.

QUESTION:
Is there any ethical requirement that an attorney licensed to practice law in South Carolina must physically perform the closing of real property located in the state within the boundaries of South Carolina?

SUMMARY:
An Attorney licensed to practice law in South Carolina is not ethically prohibited from physically performing a closing for South Carolina real estate outside of the boundaries of South Carolina.

OPINION:
Interstate practice is commonplace in present practice. The practice of law across state lines is governed by law, not ethics. ABA Informal Op No. 1059 (1969) Since the committee does not issue opinions on questions of law, an attorney considering participating in a closing of this type should review applicable statutory provisions and common law principles in all relevant jurisdictions to determine whether such a transaction is legal. The comment to Rule 8.5 dealing with jurisdiction states:

In modern practice lawyers frequently act outside the territorial limits of the jurisdiction in which they are licensed to practice, either in another state or outside the United States. In doing so, they remain subject to the governing authority of the jurisdiction in which they are licensed to practice. If their activity in another jurisdiction is substantial and continuous, it may constitute practice of law in that jurisdiction. See Rule 5.5. If the rules of professional conduct in the two jurisdictions differ, principles of conflict of laws may apply. Similar problems can arise when a lawyer is licensed to practice in more than one jurisdiction.

If the transaction is illegal, an attorney may not ethically participate. South Carolina Rule of Professional Conduct 1.2(d), 8.4(b). However, if there are no legal barriers, there is nothing per se unethical about an attorney licensed to practice law in South Carolina physically performing the closing for South Carolina real property outside of the boundaries of South Carolina. This panel has found no Rule of Professional Conduct that specifically prohibits an attorney licensed in South Carolina from physically performing a real estate closing for South Carolina real property outside of state boundaries. Furthermore, the panel has found no Ethical Considerations or past Advisory Opinions that specifically discuss this issue.

Therefore, it is the opinion of the South Carolina Bar Ethics Advisory Committee that as long as all legal requirements are met, there is nothing per se unethical about an attorney licensed to practice law in South Carolina physically performing the closing for South Carolina real property outside of the boundaries of South Carolina.