South Carolina Bar Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the South Carolina Bar, with full citations and source links on every page.
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Can a lawyer form a for-profit mediation firm with non-lawyer mediators and share in its profits?
Yes. Rules 5.4 and 7.2(c) do not bar a lawyer from joining a for-profit mediation firm with non-lawyers and sharing its profits, so long as the firm does no legal work and clients understand it is not…
Can an out-of-state partner who is not licensed in South Carolina be the sole signatory on the firm's South Carolina IOLTA trust account?
No. The arrangement satisfies Rule 1.15 and Rule 412, SCACR, but it violates Rule 417, SCACR, as amended in 2011, which lets only a lawyer admitted in South Carolina, or someone under that lawyer's di…
Can a South Carolina lawyer answer legal questions for pay on a site like JustAnswer.com?
Not on a site like JustAnswer.com. Its use of 'expert,' testimonials and endorsements without required disclaimers, and buried disclaimers that try to deny an attorney-client relationship while inviti…
Can a lawyer take a contingent fee in a quiet-title action that is paid as a partial ownership interest in the very land being litigated?
Yes, it may be permissible. A contingent fee paid as a partial ownership interest in the disputed real property is allowed under the Rule 1.8(i)(2) contingent-fee exception, but it must comply with Ru…
Can a lawyer apply a client's unearned retainer surplus left in trust on one matter to cover the client's unpaid fees on a different matter?
No. Unearned fees in a client trust account may be withdrawn only as fees are earned on the matter for which they were advanced or refunded to the client; a lawyer may not move them to offset an unpai…
At a real estate closing, can the buyer's lawyer who prepares the settlement statement charge the seller (a non-client) a 'payoff handling fee' for transmitting the mortgage payoff?
Yes. The buyer's lawyer may add a reasonable payoff handling fee to the seller's side of the settlement statement even with no attorney-client relationship with the seller, because Rule 1.5(a)'s reaso…
May a lawyer use a 'daily deal' website (like Groupon) to sell vouchers redeemable for discounted legal services such as preparing a will?
Yes. Using a daily-deal website to sell vouchers for discounted legal services does not violate the Rule 5.4(a) bar on sharing fees with a non-lawyer; the site's percentage is a permitted advertising …
May a lawyer who works as a federal investigator contact a represented target of an investigation directly, even though the target is represented by counsel?
Yes. Rule 4.2 bars contact with a represented person only by a lawyer who is 'representing a client.' A federal investigator who happens to be a lawyer is not representing a client in that role, so Ru…
May a lawyer offer free basic powers of attorney to the public in exchange for the client donating at least $25 to a charity or religious organization?
Yes. The program does not violate the rules as long as the lawyer does not let the charity influence his independent judgment. The donations are not legal fees, are not an improper referral fee under …
May a part-time county attorney represent criminal defendants in the same county, where the sheriff's office officers investigate those cases?
Only if he gives the County Sheriff's Office no legal advice on criminal matters. If the county attorney provides any criminal-law advice to the sheriff's office, representing criminal defendants in t…
When a lawyer is a pro se plaintiff, does Rule 4.2 bar him from contacting the opposing party or its insurer directly, and can he have his non-lawyer spouse make the contact instead?
Rule 4.2 applies to a lawyer representing himself pro se, so he may not directly contact a represented opposing party (here, the club) without its counsel's permission; if the insurer is unrepresented…
Can a lawyer add a surcharge when billing a client for the work of a contract attorney hired on a case-by-case basis?
It depends on how the work is billed. If the lawyer supervises and adopts the contract attorney's work as the lawyer's own under Rules 1.1 and 5.1, the work may be billed as a legal fee, subject only …
May a lawyer who is a partner in one law firm also become a partner or 'of counsel' at a second firm while keeping the first partnership?
Yes, with caveats. A lawyer may practice in or be 'of counsel' to a second firm, but the two firms are treated as a single firm for conflict-of-interest and imputed-disqualification purposes, the lawy…
At a real estate closing, may a lawyer tell the borrower or lender that an appraisal-rights waiver attached to the mortgage is potentially unenforceable because it is not on the signature page?
If the lawyer represents only the borrower, the lawyer may disclose the potentially defective waiver to the borrower; whether the lawyer must disclose is a standard-of-care question outside the commit…
May a plaintiff's lawyer agree, as a settlement condition, not to use the defendant's name for commercial or publicity purposes in future advertising?
No. A settlement may not be conditioned on the lawyer relinquishing a right inherent in the practice of law. Because lawyer advertising is a protected First Amendment right, a term barring the plainti…
Is it a conflict under Rule 1.9 for a lawyer or firm that handled a buyer's real estate closing to later represent a homeowners association enforcing covenants against that buyer?
No. Without more, conducting a residential closing is not substantially related to a later HOA action to enforce covenants or restrictions against the buyer, so Rule 1.9 does not bar the representatio…
When a county uses e-recording and debits a lawyer's account for recording and transfer fees, is that account a trust account, and may a lawyer share control of it with a non-lawyer (the Clerk or Register)?
An account holding client or third-party funds is a trust account governed by Rule 1.15 and ACR 417. A lawyer may share control of an account with a non-lawyer only if it holds neither client funds no…
May a lawyer limit representation to the collaborative law process, where the lawyer must withdraw if the case fails and litigation begins, and does that withdrawal provision create a non-consentable conflict?
Yes. A lawyer may limit the scope of representation to the collaborative law process with the client's informed written consent. The withdrawal-on-failure provision creates a potential conflict under …
Does a South Carolina lawyer have to follow Rule 7.3's targeted-solicitation rules when mailing letters offering legal services to everyone in a retirement community or zip code?
No. Letters advertising a lawyer's general availability sent to everyone in a geographic area, such as a retirement community or zip code, are not Rule 7.3(d) solicitations of people known to need leg…
When a landlord and the lawyer's own client both claim money held in the lawyer's trust account, may the lawyer release it, and to whom?
If the third party's (landlord's) claim to the funds is not frivolous, Rule 1.15 requires the lawyer to keep the disputed funds in trust until the dispute is resolved; the lawyer may not release them …
Can a lawyer who served as a child's guardian ad litem in an abuse and neglect case later represent the custodial parent in an action to enforce or modify child support?
No. A lawyer who served as guardian ad litem for the children should not later represent the custodial parent in a child support enforcement or modification action; the child is treated as a former cl…
At a magistrate's docket meeting, may a lawyer ask for a continuance on behalf of another lawyer who is absent, and may a lawyer move to dismiss cases for other lawyers who did not ask the lawyer to act?
A lawyer may appear to request a continuance for an absent lawyer who asked for the favor. A lawyer may not move to dismiss cases on behalf of other lawyers (or their non-client parties) without the l…
If a website like Avvo or Martindale builds a profile and rating for a South Carolina lawyer without the lawyer's involvement, may the lawyer claim the listing and invite peers and clients to post ratings and comments?
A lawyer may claim the listing, but by claiming it the lawyer becomes responsible for all of its content, which is then governed by the advertising rules (Rules 7.1 and 7.2). A lawyer may invite peer …
May a lawyer keep representing a client in a probate appeal while pursuing the lawyer's own personal-injury claim against the client's incarcerated former spouse, and what happens if the client ends the representation?
With the client's informed consent confirmed in writing, the lawyer may continue a limited representation in the probate appeal under Rule 1.2, because the lawyer's and client's interests are aligned …
Must a lawyer personally pay the fee of a Special Referee the trial judge effectively compelled the parties to use, and must the lawyer try to persuade the insolvent corporate client's principals to pay?
No. No Rule of Professional Conduct requires a lawyer to pay the fee of a Special Referee, especially where the trial judge compelled the referral; the Special Referee is a court of record standing in…
In a standard residential real estate closing where the borrower retains the lawyer, does the lawyer also represent the lender, and does following the lender's closing instructions create an attorney-client relationship with the lender?
No. Absent additional facts, a lawyer chosen and retained by the borrower does not represent the lender, and merely following the lender's closing instructions does not create an attorney-client relat…
May a lawyer keep practicing in city court when his firm's senior partner is the mayor who sits on the council that appoints the city court judges?
Yes. The Rules of Professional Conduct do not prohibit the lawyer from practicing in city court; ordinary advocacy is not barred and the conflict rules (1.7 through 1.11) do not apply on these facts. …
Can a law firm's law clerk who interviewed a prospective opposing witness be called to testify about the substance of that conversation?
Yes. Rule 3.7's advocate-witness prohibition applies to lawyers acting as advocates at trial, not to firm employees like a law clerk, so the clerk is not precluded from testifying about the call, subj…
When a client wants to appeal but does not want the trial lawyer to handle the appeal, must the lawyer file the notice of appeal, and can a scope limitation in the retainer change that?
Under Rule 1.16(d) the lawyer must take reasonably practicable steps to protect the client's interests on termination. In a criminal matter the lawyer may be required to file the notice of appeal and …
When a real estate lawyer is a title insurance agent for two underwriters whose premiums differ, must the lawyer use the cheaper underwriter or disclose the price difference to the client?
The lawyer is not required to write the policy with the cheaper underwriter, but Rule 1.4 obligates the lawyer to disclose the premium difference and any other relevant differences so the client can m…
When several public defenders from the same office represent co-defendants with inconsistent defenses, must each get the client's informed consent in writing under Rule 1.7?
No, if the office satisfies the screening and autonomy exceptions in Rule 1.10(e); when those are met the attorneys need not turn to Rule 1.7 or obtain written informed consent, even if a co-defendant…
In a residential real estate closing, may a closing-only lawyer rely on a non-lawyer coordinator's word that recordation and disbursement were properly handled, and can the lawyer limit the scope to avoid responsibility for the other steps?
A lawyer may not rely solely on a non-lawyer's representations that the practice-of-law steps of a closing were performed correctly, and may not accept blanket assurances. A lawyer may rely to some ex…
May a South Carolina lawyer file affidavits containing hearsay or statements not based on the witness's personal knowledge in support of ex parte requests or temporary hearings?
Yes, so long as the hearsay or other non-personal-knowledge information is clearly identified as such; admissibility is a question of substantive law. Rule 3.3(a)(3) bars tendering false information, …
May a South Carolina lawyer who is a party to her own divorce, not acting as counsel, secretly tape record telephone calls with her estranged spouse without consent?
The committee advised that surreptitious recording by a lawyer is ethically permissible only when the lawyer is not acting as a lawyer, public official, or other position of trust and the recording is…
A lawyer drafts a custody-modification agreement for two divorced parents; before filing, one parent revokes consent while the other (who paid) insists on filing. May the lawyer file the pleadings?
No. Whether the lawyer has a conflict depends on whether an attorney-client relationship formed with the paying party, but either way the lawyer should not file the pleadings: if both are clients ther…
May a South Carolina lawyer represent a client against an opposing party whose lawyer shares office space, a receptionist, and equipment with the lawyer?
It is not a per se violation, but on these facts (shared receptionist, lobby, conference rooms, fax and copy machines, thin walls) the arrangement carries a high risk of breaching confidentiality unde…
Must a South Carolina lawyer obtain extra insurance for client trust funds that exceed the FDIC coverage limit, or place them across multiple banks?
No. Rule 1.15 requires only reasonable steps to safeguard client funds. It does not require a lawyer to insure trust funds above the FDIC limit or to spread deposits across several banks; whether to i…
When relatives consult a lawyer about a mentally incapacitated cousin and appear to want to transfer his property against his interests, may the lawyer report the matter to protective services, and who is the client?
The lawyer is not prohibited from reporting suspected exploitation of the incapacitated cousin to the Department of Social Services or an appropriate protective service entity. Who the client is is a …
Can a lawyer who settled an injured passenger's insurance claim later represent the driver in a felony DUI prosecution arising from the same accident, after the former client's written waiver?
Yes. The driver's interests likely are not materially adverse to the former client's, since the former client opposes the prosecution; and even assuming adversity, Rule 1.9(a) lets the former client w…
Can a plaintiff's lawyer agree, as a condition of settlement, to personally indemnify the defendant and defense counsel against Medicare or Medicaid subrogation lien claims on the settlement proceeds?
No. A lawyer may not agree to serve as an indemnitor for the released parties against third-party lien claims on settlement proceeds. The demand creates a Rule 1.7 conflict between the lawyer and clie…
What are a lawyer's ethical duties when the lawyer suspects or knows a client is in the country illegally, and must the lawyer ask about a client's immigration status?
The duties are the same as for any client engaged in ongoing criminal activity. Rule 1.6 protects the client's confidential information, and because illegal entry is a past act and unlawful presence i…
Can a criminal defendant's firm pay the legal fees of a separately represented government witness for the witness's lawyer to attend a pretrial interview?
To the extent the payment is legally permissible, the committee found no ethical prohibition on a defendant's firm paying a government witness's lawyer's fees for a pretrial interview, provided Rules …
In a South Carolina abuse and neglect case, can one lawyer serve as the child's guardian ad litem, as counsel for the GAL, and also as the child's lawyer?
No. A lawyer may serve as both the child's guardian ad litem and counsel for the GAL (a self-representation parallel), but may not also represent the child. Representing the child while serving as GAL…
Can a law firm act as escrow agent for a developer client's real estate deals (for which the firm is not closing counsel) and hold large earnest-money deposits in a non-IOLTA interest-bearing account, and may it charge a percentage holding fee?
Yes. Because the large deposits will be held for months to two years and can earn income for the client exceeding the cost of securing it, they are not 'nominal or short-term,' so under Rule 412(d) th…
Can a lawyer use a trade-credit account processor to finance non-consumer clients' fees, and sell existing receivables to it, the way lawyers accept credit cards?
Yes to both, with informed client consent. The committee treated a trade-credit account processor like a credit-card arrangement (approved in Opinions 81-01 and 96-06): a lawyer may finance fees this …
When a lawyer and client have signed a discharge agreement but the court has not yet relieved the lawyer, must the lawyer still respond to discovery, depositions, and hearings?
Yes. Under Rule 1.16(c), a lawyer must have the tribunal's permission before terminating a representation, so until the court grants the motion to be relieved the lawyer must continue to provide compe…
Can a lawyer treat cashier's checks and certified checks drawn on credit unions and other non-bank institutions as 'collected funds' under Rule 1.15(f), which by its terms refers only to a 'bank'?
Yes. Subject to future clarification from the South Carolina Supreme Court, the committee reads 'bank' in Rule 1.15(f) to include credit unions and other financial institutions as defined in IOLTA Rul…
Can a South Carolina lawyer hand out fee-discount coupons to homebuyers through real estate agents and mortgage loan originators?
The committee concluded no: having a real estate agent or loan originator personally deliver the lawyer's fee-discount coupons to homebuyers known to need closing services was in-person solicitation b…
Can a lawyer appear in a 'team approach' radio advertisement paid for by a real estate company that refers closings to the lawyer's firm?
Yes, if the lawyer pays the reasonable cost of the advertisement and the ad complies with the advertising rules. Rule 7.2(c)(1) lets a lawyer pay the reasonable costs of advertisements, the ad must sa…
Can a lawyer keep representing a client and testify in support of an advice-of-counsel defense when the opposing party files a frivolous-proceedings counterclaim attacking the lawyer's advice?
Yes. Rule 3.7(a) does not bar the lawyer from continuing as advocate because the lawyer's testimony relates to the nature and value of legal services rendered in the case, and because disqualifying th…
Does a lawyer violate South Carolina Rule 4.5 by sending a bad-check collection notice that warns of possible criminal prosecution when state law requires that warning?
No. Although the statutory bad-check notice under S.C. Code 34-11-70 references possible criminal prosecution, the threat is not made solely to gain an advantage in a civil matter because the statute …
Can a lawyer use one professional name and a different married name in private life, and can her firm keep her former name in the firm name after she changes it?
Yes to both. A lawyer may use different professional and private names. A continuing firm may keep a member's former name as a trade name even after she changes her last name, so long as it is not mis…
Can lawyers in a firm buy charged-off debts from a client, former client, or non-client, and can an LLC owned by the firm's lawyers hire the firm to collect those debts?
Yes to both, with limits. Rule 1.8(i) bars buying a debt only when it is the subject of litigation the lawyer is conducting for a client, so lawyers may purchase charged-off debts they never handled a…
Does a defense lawyer's personal relationship with a county sheriff disqualify her from representing defendants charged by that sheriff's office?
Not categorically. The committee concluded the lawyer may represent clients charged by the sheriff's office as long as the sheriff is not expected to testify in the case, the lawyer discloses the pers…
Can a private-practice lawyer hire a non-lawyer who works full time for the local prosecutor's office to moonlight on the firm's immigration cases?
Yes, subject to strict screening, confidentiality, and supervision. The committee held the arrangement carries confidentiality and conflict risks under Rule 5.3 but is not prohibited if the assistant …
Can a South Carolina lawyer who is also a licensed real estate agent and a mortgage broker act as mortgage broker, the buyer's real estate agent, and the closing attorney in the same transaction if the client consents in writing?
The committee advises against it. While the Rules do not impose a per se bar, a lawyer's belief that she can competently and diligently represent each affected client while also collecting agent and b…
Can a lawyer contribute to a memorial fund for a deceased judge organized by a local group that is not a bar association or law school?
No. The opinion concludes that under Rule 3.5(e) a lawyer may not contribute to a memorial for a judge unless the soliciting entity is a law school or an established bar organization not formed primar…
Can a lawyer accept referrals from a trade association he belongs to if he offers the association's members discounted fees?
Yes. The opinion concludes a lawyer may receive referrals from a trade association he belongs to, provided he gives the association nothing of value in exchange for the referrals; the trade associatio…
Can a staff lawyer in an organization be supervised by a nonlawyer manager who reviews his substantive legal work and decides his raises and promotions?
Yes. The opinion concludes a lawyer may be employed by an organization where a nonlawyer is his immediate supervisor and reviews his legal work, so long as the lawyer does not let the nonlawyer direct…
Can a lawyer who represents only the seller conduct a mail-away residential closing in South Carolina when the buyer is unrepresented, and does a buyer's mortgage loan change the analysis?
Nothing in the Rules flatly prohibits a seller-only mail-away closing if the Opinion 05-16 conditions and the Rule 4.3 disclosures to the unrepresented buyer are met, but who the closing attorney repr…
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Legal ethics opinions from the South Carolina Bar interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.