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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If a lawyer learns that opposing counsel got confidential help from the lawyer's own firm and breached a prior settlement's confidentiality clause, must the lawyer tell the client and report the other lawyers?
The committee concluded the lawyer must inform her client of the breach under Rule 1.4, and must report the firm lawyer who fed opposing counsel inside information (a Rule 1.6 and 1.8(b) violation) un…
When one lawyer winds down a practice, what does the remaining lawyer owe the founder's former clients, and how long must client files be kept?
It depends on the transaction. The committee concluded that if the remaining lawyer buys the practice under Rule 1.17, the selling lawyer keeps the inactive-client files and the buyer owes those clien…
If a lawyer learns that another lawyer he refers clients to is medically impaired and can no longer competently practice, must he report it and warn the referred clients?
Yes to both, with a confidentiality limit. The committee concluded that if the impaired lawyer's medical condition causes violations of Rules 1.1 and 1.16(a)(2) that raise a substantial question of fi…
Can a paralegal alone interview clients for Health Care Powers of Attorney and Living Wills and help them execute those documents?
Partly. Declining the unauthorized-practice question (reserved to the SC Supreme Court), the committee concluded that under Rule 5.3 a paralegal may, under the supervising lawyer's direction, intervie…
Can a lawyer hold a former client's file, including research and meeting notes, until an unpaid bill is paid?
Not if it would prejudice the client. The committee concluded that under Rule 1.16(d) an attorney may not withhold a former client's file over an unpaid invoice where doing so would substantially and …
Can a lawyer in a civil case pay a fact witness the expense money another lawyer promised her for testifying in an earlier, concluded criminal case?
No. The committee concluded that paying a fact witness for testimony in a concluded criminal case is the payment of an antecedent debt unrelated to the present civil litigation, which is improper unde…
Can a lawyer who is a member of a church sue that church on behalf of other clients?
Yes, if the conditions of Rule 1.7(b) are met. The committee concluded the lawyer may represent clients suing his own church so long as he reasonably believes his church membership will not adversely …
When a contingency-fee client fires the lawyer, can the lawyer hold the file until paid and bill hourly for the work done, including travel?
The committee concluded the lawyer should not withhold the file but should promptly deliver it to the client, because the retaining-lien factors recognized in South Carolina case law do not favor a li…
When a relative pays a lawyer's flat fee for a client who then fires the lawyer and demands a refund, who gets the unearned portion, the client or the relative who paid?
The committee concluded the lawyer must not unilaterally decide whether the client or the third-party payor is entitled to the unearned fee; because both may have a claim (depending on whether the pay…
Can a lawyer own a majority of a mortgage brokerage and then close loans for, and take referrals from, that business?
The committee concluded there is no per se bar to a lawyer owning a mortgage brokerage while practicing law, but the lawyer must disclose the interest and any Rule 1.7/1.8 conflicts to customers who b…
How can a lawyer close an old escrow account that still holds funds for stale, uncashed checks to clients who can't be located?
The committee concluded the lawyer may close the old account but may never keep the funds; after meeting Rule 1.15 (records and notice, including notice by publication) and waiting at least a year for…
Can a lawyer work as a salaried employee of a nonprofit run entirely by nonlawyers and represent the people the nonprofit serves?
The committee concluded a lawyer may be employed by a nonlawyer-run nonprofit to represent its beneficiaries, so long as the organization sets only general case-selection policies and never directs th…
Can a former deputy solicitor who prosecuted a defendant for arson later represent that same person in an insurance claim arising from the same fire, and can his new firm continue the matter?
The committee concluded the former prosecutor may not represent the client in the civil insurance matter arising from the same facts he prosecuted, because doing so would exploit his former public off…
If one partner becomes a part-time juvenile solicitor, is his law partner barred from defending criminal clients in General Sessions Court?
The committee concluded the part-time juvenile solicitor has no Rule 1.7 conflict, because his separate office, distinct juvenile caseload, and different court make the juvenile solicitor's office a s…
If an insurer's automated software (no human reviewer) processes a defense firm's legal bills, does the firm need the insured's consent under the confidentiality rule?
The committee concluded that consent is still required: even though an automated program with no human intervention compiles and transmits the billing data, confidential client information is revealed…
If a lawyer in a firm is a part-time municipal judge, can the firm's other lawyers practice in that same court, as long as they never appear before the part-time judge?
The committee concluded that an associate or partner of a part-time municipal judge is not ethically barred from practicing in the court where the judge presides, so long as that lawyer does not appea…
When a personal-injury lawyer's spouse co-owns a chiropractic clinic and they share its profits, can the lawyer cross-refer with the clinic and represent its patients?
The committee concluded the lawyer may refer clients to the clinic only if the referrals are not a quid pro quo for referrals received (Rule 7.2(c)) and the lawyer discloses his financial interest; be…
Can a South Carolina lawyer put a mandatory arbitration clause in a fee agreement with a client?
The committee found no hard South Carolina rule and noted other states are split; it concluded the preferable course is to reference the Bar's Resolution of Fee Disputes Board rather than a mandatory …
Can a prosecutor use evidence a colleague obtained through a criminal subpoena issued before any arrest warrant or indictment?
The committee concluded that if procedural law does not allow a criminal subpoena duces tecum before an arrest warrant or true-billed indictment, the prosecutor who obtained it would violate Rule 8.4(…
After a firm unknowingly represented both sides in unrelated matters, can the firm keep suing the contractor for the church when the contractor uses the old conflict as settlement leverage?
The committee concluded no former-client consent was needed under Rule 1.9 because the church's construction suit was unrelated to the firm's prior workers'-comp defense of the contractor; but if the …
Can a lawyer pay an Internet service for leads, whether a flat monthly fee or a charge per click or referral, without violating the rule against paying for recommendations?
The committee concluded a lawyer may pay an open-to-all Internet service either a flat advertising fee or a per-hit charge, treating per-hit pricing as a measure of advertising effectiveness rather th…
If a doctor sends a form letter claiming Rule 1.15 gives him a lien on a client's settlement, must the lawyer pay the doctor's bill out of the recovery?
The committee concluded Rule 1.15 does not itself create a lien for the physician; the Rules of Professional Conduct do not create substantive rights, so without a valid lien or assignment the lawyer …
Can a lawyer contact a former employee of a represented company ex parte to investigate a claim before suit, and get an affidavit?
The committee concluded Rule 4.2 does not bar ex parte contact with a former employee of a represented corporation, because a former employee is not a party and the company is not bound by what the fo…
When a former prosecutor now works for a prosecutor-training nonprofit and takes criminal-defense appointments, does he have to disclose that history or check old employers for conflicts?
The committee concluded the lawyer's current training-organization job and his bare status as a former prosecutor did not, by themselves, require disclosure to defense clients; a conflict arises under…
At a real estate closing, can a lawyer represent only the seller (who pays the fee) and tell the buyer in writing that the lawyer is not the buyer's lawyer?
The committee concluded a lawyer may represent only the seller at a closing if the lawyer complies with Rule 4.3, disclosing that the lawyer represents the seller alone and that the buyer should get s…
Can a South Carolina lawyer take a fee from an out-of-state debt-management firm for steering people who are not good bankruptcy candidates to that firm, and act as the firm's local of counsel?
The committee concluded the lawyer may take a fee for referring clients to the firm if the lawyer satisfies Rule 1.7(b) and the firm's debt-management work is not the unauthorized practice of law, and…
Can a South Carolina lawyer send a letter to former jurors after a trial, for example to ask about the lawyer's own performance?
The committee concluded there is no strict ethical prohibition against contacting jurors after they have been dismissed, but the practice is strongly discouraged; a letter that could be read as curryi…
Can a lawyer hire an investigator to watch prospective jurors' homes and cars without contacting them?
The committee concluded that, technically, visual observation of a prospective juror's home or car is not an ethical violation provided absolutely no contact is made with the juror or family and the o…
Do two lawyers on opposite sides of a will probate have a conflict when their firms are negotiating a merger?
The committee concluded that once merger discussions reach a formal stage, the lawyers' interests in the merger may materially limit their representation, so each must avoid letting that interest soft…
If a lawyer mistakenly signed up two drivers from the same crash, can the lawyer keep representing one after dropping the other?
Assuming an attorney-client relationship formed with both drivers when each signed a representation contract, the committee concluded the lawyer could withdraw from representing the second driver unde…
Can a corporation make its in-house lawyer sign a non-compete agreement to protect trade secrets?
The committee concluded that the described non-compete agreement, barring the in-house lawyer from working for a similar corporation for two years, would violate Rule 5.6(a)'s prohibition on agreement…
Can a lawyer join a free online service that matches consumers with attorneys and emails the lawyer about cases?
On a limited review, the committee concluded that participation in the free online attorney-matching service appeared ethically permissible because the consumer (not the lawyer) initiates the contact,…
Can a lawyer hold a free public seminar on a legal topic, with a Q&A session and individual consultations afterward?
The committee concluded that an attorney generally may conduct a free public seminar on a legal topic and provide general legal information to the public, subject to Rule 7.1 (no false or misleading c…
When a lawyer closes a loan for both borrower and lender, must the lawyer warn the borrower about a bad interest rate or a high broker fee?
The committee concluded a lawyer generally has no duty to investigate a client's business affairs or to advise that a commercial transaction is unfavorable, so absent undertaking such advice the lawye…
Does a lawyer who sits on a quasi-governmental board have a conflict suing a company when others have sued that board over the same facts?
The committee concluded that participating in a joint deposition did not by itself create a conflict, but because the lawyer's representation of the client could be materially limited by the lawyer's …
Can a lawyer issue a subpoena duces tecum in Magistrate's Court if the lawyer believes the court has no authority to issue it?
The committee concluded no: under Rule 3.1 a lawyer may not issue a subpoena absent a non-frivolous, good-faith argument that it is lawful, and under Rule 3.3 a lawyer may not represent to the court t…
Can a lawyer who handled a couple's past real estate closings later represent the wife in a divorce against the husband?
The committee concluded there was no conflict of interest: the divorce was not the same or a substantially related matter to the earlier closings, and the facts revealed no confidential information fr…
Is it unethical for a lawyer to give a bank a copy of a legal description from the lawyer's file for a no-title-work mortgage?
The committee concluded that merely providing a copy of a public record to a requesting party, absent anything further, is not unethical; it declined to decide whether the bank's no-title-work 'Blind …
Can a lawyer provide a title opinion for a loan a bank closes itself, without the lawyer present at closing?
The committee declined to decide whether the bank's conduct is the unauthorized practice of law (a question of law for the courts), but concluded that under Rule 5.5(b) it would be unethical for an at…
Does the six-year clock for keeping a client's financial records run from each matter ending or from the whole relationship ending?
The committee concluded that Rule 1.15(a)'s six-year record-retention period runs from the conclusion of each particular matter, not from the termination of the entire attorney-client relationship; ot…
Can a closing attorney represent a buyer when the seller or lender will pay the buyer's fees only if their own attorney is used?
The committee concluded the attorney has no duty to ask the seller or lender to drop the condition (so long as the attorney did not pay for the referral through reduced fees or otherwise), but if the …
Can a city prosecutor forbid police or public safety officers from talking to defense lawyers about pending cases?
The committee concluded a city solicitor cannot prohibit criminal defense attorneys from contacting and discussing cases with public safety officers, or vice versa, because in criminal matters the sol…
When a lawyer represents both spouses in one personal injury case, can one spouse demand the other be dropped so a settlement can be taken?
The committee concluded that because an attorney-client relationship existed with the spouse once a loss-of-consortium claim was filed on the spouse's behalf, the client could not demand the spouse's …
Can a lawyer break client confidentiality to stop a client who threatens suicide or harm to others?
The committee concluded a lawyer would not violate the duty of confidentiality by taking action necessary to prevent the client from committing suicide or harming others, because suicide and bodily ha…
Can a lawyer close a residential loan whose documents use another state's law (and a prepayment penalty) contrary to South Carolina law, and what if the lawyer isn't competent in that other law?
The committee concluded a lawyer may not close a transaction the lawyer knows is criminal or fraudulent (Rule 1.2(d)), but whether out-of-state choice-of-law or prepayment terms are unlawful is a lega…
If a lawyer's firm includes an assistant solicitor, can another lawyer in the firm bring a wrongful-death suit against the person the solicitor's office is prosecuting for the same death?
The committee concluded the lawyer is disqualified: an assistant solicitor cannot personally handle a civil case arising from a crime his office is prosecuting (risk of access to confidential files an…
What must lawyers do when a client builds a litigation web page, without their knowledge, that names them and solicits other victims to come forward?
The committee concluded the lawyers must review the page and counsel the client about it; because using the page is a 'means' of the litigation, the decision is the lawyers' to make under Rule 1.2(a),…
Can a lawyer who sued an employer for one client later represent the employer's manager against that same employer?
The committee concluded that representing the manager against the employer does not violate Rule 1.7(a) or (b), because the prior client's case was settled and dismissed (so the representations are no…
Can a lawyer practice law as an employee or partner of a CPA firm, or enter an exclusive referral deal with one?
The committee concluded a lawyer may not practice law as either an employee of or an equity holder in a CPA firm, because Rule 5.4 bars nonlawyer partnership, ownership, and control over a lawyer's pr…
Can a retired judge represent a party in a dispute the judge earlier ruled on while on the bench?
The committee concluded the retired judge may not represent the former client against the opposing party unless all parties to the proceeding consent after disclosure, because Rule 1.12 bars a lawyer …
Can a lawyer invite tax authorities to a hearing where a claimant will admit not filing tax returns, to gain leverage?
The committee concluded the lawyer may not notify the taxing authorities of the hearing, because doing so is a trial tactic amounting to a threat of criminal charges solely to obtain an advantage in t…
Which advertising rules apply when lawyers post free profiles and buy banner ads on a commercial legal-directory website?
The committee concluded that the advertising rules (Rules 7.1, 7.2, 7.4, and 7.5) apply to the lawyer's own communications and banner advertising on the site, while Rule 7.3 (solicitation) does not, b…
Can a lawyer under contract to a sheriff testify as a witness at preliminary hearings from the sheriff's files?
The committee concluded the lawyer may act solely as a witness at preliminary hearings, which the Rules do not prohibit, but if the lawyer acts as both witness and the sheriff's advocate at a hearing …
Can a lawyer appear before a probate judge who employs the lawyer's spouse as a staff attorney?
The committee concluded a lawyer is not disqualified from appearing before a judge simply because the judge employs the lawyer's spouse as a staff attorney; the Rules do not disqualify the lawyer, and…
Can lawyers join an advertising cooperative that runs anonymous TV ads and screens callers before referring them out?
The committee concluded participation is unethical: the anonymous advertising would not satisfy Rule 7.2's disclosure requirements (a responsible lawyer's name, disclosure of cost-sharing among unrela…
Can a lawyer oversee a public adjuster who is engaged in the unauthorized practice of law?
Assuming the public adjuster is engaged in the unauthorized practice of law, the committee concluded the lawyer may not oversee the adjuster's activities, because Rule 5.5(b) bars assisting a nonlawye…
Does defense counsel need the insured's informed consent before sending legal bills to the insurer's outside billing auditor?
The committee concluded that submitting legal bills to an outside auditing service requires the insured's informed consent regardless of whether the firm deems the information privileged or confidenti…
Can a newspaper fund and house a for-profit legal clinic named after the community without owning it?
The committee concluded the clinic may use the community's name if accompanied by a disclaimer that it is not a public legal aid office, and that the newspaper's role as lender and landlord does not v…
Can a lawyer scan closed client files to disk or microfilm with an imaging vendor and shred the paper originals?
Treating the question as largely one of substantive law, the committee offered informal advice that there appears to be no prohibition on placing closed files on a medium such as computer disk, microf…
When a lawyer leaves a firm and agrees to split fees with the old firm without telling the client, can the lawyer pay the old firm over the client's objection?
Rule 1.5(e) requires telling the client about a fee split that is not in proportion to the work performed. Because the client was not informed and objects, the committee advised the lawyer to hold the…
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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.