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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Must an estate's attorney, or a lawyer serving as personal representative, tell a surviving spouse about the right to claim an elective share?
The committee concluded neither the attorney for the estate nor a lawyer acting as personal representative has an ethical duty to inform a surviving spouse of the elective-share right absent an attorn…
Can a lawyer take a contingency fee on the whole recovery and also a percentage of the subrogated insurer's share?
The committee concluded, following the South Carolina Supreme Court's decision in In re Jones, that a lawyer may not take both a contingency fee on the entire recovery and a percentage fee of the subr…
When a client tells the lawyer not to contact a health insurer with a possible subrogation claim, what must the lawyer still do?
The committee concluded the lawyer has no affirmative duty to notify the insurer of the tort action, but the duty of competence requires advising the client, before disbursing settlement funds, that t…
Can a lawyer withhold a former criminal client's file under a retaining lien until the client pays a copying fee?
The committee concluded the attorney may not withhold the file on these facts, because even where a retaining lien exists the lawyer should ordinarily forego it when withholding would prejudice the cl…
When a secretary who worked on a case moves to opposing counsel's office, is the new firm disqualified, and what must the old lawyer do?
The committee concluded the opposing firm is not imputedly disqualified merely because it hired the secretary and may continue, provided it makes reasonable efforts under Rule 5.3 to keep her conduct …
Can a lawyer participate in a non-law business that buys and assumes physicians' workers'-compensation accounts receivable?
The committee concluded that whether the business itself is proper is a question of substantive law it does not address, and that participation that does not involve the practice of law is not governe…
Can a lawyer buy the results of a service that phones prospective jurors from the venire list before the term of court?
The committee concluded an attorney may not, without court approval, use or cause the use of any private service that contacts a venire member before jury service is completed, because Rule 3.5 bars i…
Can a former judge represent a party in a dispute over an order the judge himself entered while on the bench?
The committee concluded that under Rule 1.12 the former judge may not represent a party in a dispute over a consent order he entered as a family court judge, because entering even a consent order was …
Can a law firm sue a municipality when one of its lawyers sits on that municipality's city council?
The committee concluded that Rules 1.11 and 1.7(b) could preclude the representation; the firm may proceed only if the client consents after notice and the council-member lawyer is screened, with writ…
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?
The committee concluded the out-of-state lawyer's work for South Carolina residents would be the unauthorized practice of law, that the South Carolina lawyer was barred by Rule 5.5 from assisting it, …
Can a closing law firm get a borrower to sign an advance waiver letting the firm later represent the lender against that borrower?
The committee concluded a firm may limit the scope of its representation of a borrower to closing the loan and obtain the borrower's advance written consent to later represent the lender in disputes, …
If a lawyer is retained by a county to prosecute magistrate-court cases, can he still defend criminal clients in the county's municipal courts?
The committee concluded the lawyer could defend clients in the county's municipal courts, because those charges are brought by municipal police rather than the county whose cases he prosecutes, though…
Can a lawyer telephone people the bar referral service listed who never called the lawyer back?
The committee concluded it would be improper for the lawyer to phone referral-service recipients who never called the office, because no professional relationship existed and Rule 7.3 bars unsolicited…
Can a lawyer advise a client to accept a settlement that requires the client not to voluntarily testify in related cases?
The committee concluded that if the request meant the client should refrain from voluntarily giving relevant information to another party, advising the client to accept would violate Rule 3.4(f) (via …
Can a lawyer keep suing a company that briefly became a former client when another firm lawyer represented it in an unrelated case?
The committee concluded that a lawyer may continue representing a client against a former client without the former client's consent where the new matter is not the same or substantially related to th…
Can a public defender's office employ as chief investigator the spouse of a sheriff's narcotics investigator?
The committee concluded the public defender's office could employ the investigator's spouse so long as she did not assist or have access to information from lawyers adverse to parties her spouse's div…
Can a lawyer use a musical jingle in radio or TV advertising, or is that too undignified?
The committee concluded that jingle lyrics must meet the same advertising rules as any other ad text, avoiding false or misleading statements and improper specialist claims, but a lawyer could not be …
When opposing counsel won't respond, can a lawyer copy the represented party directly, or tell the client to contact the other party?
The committee concluded that Rule 4.2 bars a lawyer from copying a represented party on settlement letters, but the lawyer may advise the client that the client may contact the other party directly, s…
If a client signs a doctor's lien and later tells the lawyer to ignore it at disbursement, what must the lawyer do with the settlement money?
The committee concluded the lawyer may refuse the client's instruction to disregard a doctor's lien, but if the client disputes the provider's right to payment, the lawyer must notify the provider and…
Can a lawyer charge a contingent fee to non-spouse parties pulled into a divorce case over whether titled property is marital?
The committee concluded that a contingent fee was permissible, because the parents' claim, that property titled in their name was non-marital, did not seek the divorce, alimony, support, or property s…
If a client fires the lawyer early, does the lawyer have to refund the unused part of a non-refundable retainer?
The committee concluded that if a non-refundable retainer is reasonable, the attorney may keep the unused portion after the representation ends, because Rule 1.16(d) permits retaining a reasonable non…
Can a lawyer deposit the firm's own money into a client trust account to cover or avoid bank service charges?
The committee concluded that a lawyer or firm could deposit firm funds in a client trust account to pay or avoid bank service charges, so long as records were kept that identified the ownership of all…
Can a lawyer who is also licensed in another profession, like medicine, advertise both credentials together?
The committee concluded that nothing in the advertising rules barred a lawyer from noting a second professional license, but the lawyer had to avoid statements likely to create a false impression abou…
Can a bar lawyer referral service charge participating lawyers a percentage of the fee they earn on each referral?
The committee concluded the proposed 10%-of-net-fee charge violated Rule 7.2(c), because a percentage that varies with each lawyer's fee is neither the 'usual charges' of a not-for-profit referral ser…
Can a lawyer sponsor a Welcome Wagon program that has hostesses hand out the lawyer's cards or brochures to new residents?
The committee concluded that distributing a lawyer's advertising through a Welcome Wagon program is not prohibited, but it is advertising subject to Rule 7.2 and, where a contact amounts to solicitati…
Can lawyers in a firm use a separate letterhead that omits the firm name for certain cases, like collections?
The committee concluded that letterhead omitting the firm's name may mislead recipients about the lawyer's firm affiliation and so violates Rules 7.1 and 7.5; a firm may give a lawyer individual lette…
Can a lawyer hired by a conservator to sue for the ward also help the conservator fight the ward's petition to dissolve the conservatorship?
The committee concluded that a lawyer who brought an action for the ward at the conservator's direction may also help the conservator oppose the ward's petition to dissolve the conservatorship, so lon…
Can a law firm co-own with an accounting firm an ancillary business that serves retirement plans and refers legal work back to the firm?
The committee concluded a firm may co-own and refer clients to an ancillary business providing nonlegal services if it complies with Rules 1.7 and 1.8, but not if the business engages in the unauthori…
Can a lawyer give a client's will and trust to the client's power-of-attorney agent without the client's permission?
The committee concluded that while the competent client was alive the lawyer could not disclose the will and trust to the power-of-attorney agent without the client's consent under Rule 1.6; if the cl…
When a public defender becomes a prosecutor, can he discuss or prosecute the cases he handled as a defender?
The committee concluded the former public defender may not discuss cases he worked on with the solicitor's office except as to generally known client information, and must recuse himself from those ca…
Can a lawyer who, as an elected official, shares the power to appoint a board's members keep representing that board in litigation?
The committee concluded the Rules of Professional Conduct do not prohibit the lawyer from representing a commission whose members he shares the power to appoint, so he may continue representing it, th…
Can a part-time public defender handle a post-conviction case claiming another public defender in the same corporation erred at trial?
The committee concluded that where the part-time public defenders maintain separate offices and do not share employees or cases, they do not form a single firm for purposes of imputed disqualification…
After an insurer overpays a client because of the lawyer's earlier statement, must the lawyer disclose the overpayment or release the refunded money to the client?
The committee concluded the attorney has no duty to disclose to a third party unless disclosure is necessary to prevent the client's fraudulent act, and absent a fraud or crime the attorney must turn …
After an insurer overpays a client because of the lawyer's earlier statement, must the lawyer disclose the overpayment or release the refunded money to the client?
The committee concluded the attorney has no duty to disclose to a third party unless disclosure is necessary to prevent the client's fraudulent act, and absent a fraud or crime the attorney must turn …
When a client fires a lawyer, who pays to copy the file and which papers can the lawyer keep?
The committee concluded a fired lawyer must deliver the file but may first copy it, charging the client only for copying papers previously provided to the client and papers that do not belong to the c…
Can a lawyer who is suing a former client for unpaid fees take a new client whose case is adverse to that same former client?
The committee concluded the lawyer may represent the new client against the former client only if the new matter does not require using information from, or injuriously affecting, the former represent…
Can a lawyer give another state's bar copies of escrow-account checks to help investigate a different lawyer?
The committee concluded that, absent a court order, releasing copies of escrow-account checks that reveal client information to another state bar without the clients' consent would violate Rule 1.6, b…
Can a lawyer mention possible criminal charges against a non-paying contractor while negotiating a civil settlement for unpaid subcontractors?
The committee concluded that under South Carolina's Rule 4.5 lawyers may advise clients of their right to file criminal charges, and may mention possible related charges in settlement only if they can…
Can a plaintiff's lawyer contact a corporate defendant's former employees ex parte when those employees' alleged negligence is at issue?
The committee concluded that on these facts the plaintiff's lawyer may not contact the former employees ex parte, because their alleged acts and omissions would be imputed to the corporate defendant u…
Can a lawyer participate in a prepaid or group legal-services plan where a service organization refers clients and handles the fee?
The committee concluded an employer-paid plan where the employee initiates contact and the organization only refers (situation A) is permissible, but a plan where the organization gathers client infor…
Can a lawyer who is also a defendant, or who is a title insurance agent, represent other defendants in the same mass land-claim suit?
The committee concluded that, where the defendants' objectives appear identical, a lawyer who is also a defendant, or who serves as a title insurance agent, may represent other defendants under Rule 1…
Can a lawyer employ a convicted felon to serve process or do investigative work, and what duties apply?
The committee concluded that employing a non-attorney convicted felon for administrative work such as service of process violates no South Carolina Rule, but the lawyer must supervise the assistant un…
When a firm sues the sole shareholder of a corporation that a newly hired lawyer once represented, is that a disqualifying conflict?
The committee concluded the answer turns on whether the new lawyer's past representation of the corporation effectively made the sole shareholder a client; if a lawyer-client relationship with the ind…
When opposing counsel in the same litigation join the same firm, can that firm keep representing one of the parties?
The committee concluded the firm may continue only if the lawyer who represented the other side withdraws, both clients consent after consultation, the firm reasonably believes the continued represent…
Can a law firm bar a departing associate from advertising on television for three years as a condition of being named in the firm's commercials?
The committee concluded the proposed agreement, which would stop a departing associate from advertising on television in the area for three years, is an indirect restriction on the right to practice l…
Can different lawyers in the same public defender office each represent one of several co-defendants in a criminal case?
The committee concluded a public defender office is treated as a law firm, so although there is no per se bar, ordinarily a single lawyer should not represent more than one co-defendant, and under Rul…
Can a South Carolina firm hire a lawyer who was disbarred in another state to do legal research and paralegal work?
The committee concluded the answer is no: under South Carolina Appellate Court Rule 413, paragraph 42, a disbarred, suspended, or resigned attorney may not be employed by a South Carolina lawyer as a …
How long must a South Carolina law firm keep a closed client's file, and when may it destroy the contents?
The committee concluded there is no fixed minimum retention period; to the extent the file is the client's property, Rule 1.15 calls for keeping records six years after the representation ends, but co…
Can a part-time public defender represent paying criminal defendants in private practice, whether in the same county or another county?
The committee concluded the Rules of Professional Conduct do not prohibit a part-time public defender from representing paying criminal defendants in any county, provided the cases are unrelated to th…
Can a South Carolina lawyer advise a client to secretly record a conversation, or recommend a company to supply the recording equipment?
The committee concluded that, depending on how one reads South Carolina case law (chiefly In re Warner), it may be unethical for a lawyer to instruct or equip a client to record a conversation secretl…
When can a part-time county or municipal attorney, or the attorney's firm, represent clients with interests adverse to the local government?
Modifying Opinion 91-05, the committee concluded that where the county or city attorney provided legal services to the specific part of government involved, neither the attorney nor the firm may take …
If a court-ordered attorney's fee award is reversed on appeal, must the lawyer who already received and applied it to the client's bill refund it?
The committee concluded the attorney need not repay either the opposing party or the client; once the client directed the voluntarily paid funds to satisfy her fee contract they became the attorney's …
Can a law firm agree to advance all collection costs for a lending-institution client and absorb them out of its percentage fee?
The committee concluded that paying costs out of the fee rather than being reimbursed would give the firm a prohibited financial interest in the cases; reworded so the firm advances costs and the clie…
Can a lawyer draft a client's will naming himself personal representative with power to sell the home and bill at his hourly rate, and witness the will?
The committee concluded the lawyer may draft a will naming himself personal representative, with power to sell the home and to charge his regular hourly rate, because the appointment is not a gift und…
After a client fires her lawyer, can the lawyer still collect a court-approved attorney's fee directly from the opposing party?
The committee concluded that once the client fired the lawyer, ending the attorney-client relationship, the lawyer may take no further action to enforce the fee provisions on her behalf, and because t…
Can a firm defend abuse and neglect cases brought by a social-services agency when one firm member sits on the agency's board?
The committee concluded the agency is not the firm's client merely because a member serves on its board, but it is a third person to whom Rule 1.7(b) duties run; the firm may take these appointments i…
Can a lawyer who is also a registered nurse run a litigation-consulting business, use a trade name, and advertise as a nurse-attorney?
The committee concluded the lawyer may run the consulting business while in a firm so long as conflicts are managed, but because the business involves the practice of law it is governed by the Rules; …
Can a lawyer who is personally a party (here, a stepfather) contact a represented person directly when the lawyer is not representing a client?
The committee concluded that Rule 4.2 bars a lawyer's contact with a represented person only when the lawyer is acting in the course of representing a client, so a lawyer acting purely as an intereste…
Can a lawyer own a consumer-loan company that lends to personal-injury plaintiffs, taking assignments of their recoveries, if it never lends to the lawyer's own clients?
The committee concluded that because the company would not lend to the attorney's own clients, the arrangement does not violate Rule 1.8 or Rule 7.2; the lawyer may refer clients to the lender and hon…
Can a lawyer take a contingent fee to collect a property-division award that was already set in a final divorce decree?
The committee concluded a contingent fee is appropriate here because the fee is not contingent on securing a divorce or on the amount of the property settlement, both already fixed by the decree; only…
Browse South Carolina Bar opinions by topic
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.