Legal Ethics Opinions
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Can a South Carolina lawyer sue a corporation in tort for a new client when the lawyer once handled an unrelated collection matter for that corporation years earlier?
The committee concluded Rule 1.9 does not bar suing a former client on a wholly unrelated matter under the substantial-relationship test, but the lawyer must police himself, and clear retention and…
When a lawyer leaves a firm and will not keep practicing, who must notify the clients she handled, and is the firm's failure to pay her wages an ethics issue?
The committee concluded the firm should send the promised notification and continue the representation, the departed lawyer should write clients herself if the firm does not, and the firm's…
Can a lawyer who helped draft a wife's will later defend her husband's estate in a suit by the children over how the husband used a power of appointment from that will?
The committee concluded the lawyer should not defend the husband's estate, because his earlier work helping draft the first wife's will was substantially related to a suit claiming the husband…
Can a South Carolina law firm whose member is appointed to represent an indigent client or serve as a guardian ad litem contract with an outside lawyer to handle that appointed representation?
The committee concluded a firm does not violate Rule 6.2 merely by contracting with an outside lawyer to provide the appointed representation, as long as the appointed lawyer obtains court approval…
Can a South Carolina lawyer buy a client's structured settlement on the same terms a settlement-purchasing company offered, without violating duties to the client?
The committee concluded the lawyer may purchase the client's structured settlement only by complying with Rule 1.8(a)'s strict business-transaction requirements, and the lawyer's other duties of…
Can a South Carolina lawyer take a $125 fee from a mortgage company just to witness the borrowers' signing of loan documents when the company handles the rest of the closing?
The committee concluded the lawyer's limited role is a potential violation of Rule 5.5(b) if the mortgage company's handling of the closing constitutes the unauthorized practice of law, a question…
When a bench warrant is out for a client who is coming in to consult, does a South Carolina lawyer have to notify the authorities of the client's anticipated whereabouts?
The committee concluded the lawyer has no affirmative duty to reveal the client's whereabouts to the tribunal absent the client's intent to commit a criminal act, because Rule 1.6 confidentiality controls.
Can an insurance-defense firm send its detailed legal bills to the insurer's outside auditing company, and can it let that auditor review bills from its other, unrelated clients?
The committee concluded the firm may send the insurer's bills directly to the outside auditor only with the informed consent of both the insurer and the insured under Rule 1.6, but it may not…
Can a lawyer offer discounted services to companies' employees and have the companies promote her, and can a lawyer pay an admin fee to a prepaid legal plan?
The committee concluded that using discounted fees to get businesses to solicit their employees violated the rule against paying others to solicit, but that paying a modest administrative fee to an…
Can a South Carolina lawyer draft a condo sales contract that charges buyers a $250 fee waived only if they use the seller's lawyer to close, and then represent those buyers?
The committee concluded drafting the contract and representing the buyers is not unethical: it found no statute making the inducement criminal under Rule 8.4 and no direct solicitation under Rule…
Can a South Carolina lawyer represent a wife in her divorce when the lawyer previously represented the husband in a child custody matter and an accident case?
The committee concluded the lawyer is barred under Rule 1.9(a) only if the divorce is substantially related to the prior representation of the husband, a fact question for the lawyer; if it is, only…
In a child-abuse case, can a parent's lawyer talk to the minor child who comes in wanting to recant, when the child has a guardian ad litem but no separate lawyer?
The committee concluded the child must be treated as represented through the guardian ad litem and the Children's Code, so under Rule 4.2 the parent's lawyer must notify and obtain the consent of…
When a South Carolina lawyer learns after trial that the client and a witness committed perjury, must the lawyer act, and may the lawyer tell the insurer or law enforcement?
The committee concluded the lawyer must inquire and, if satisfied false testimony was given, urge the client to correct it and otherwise disclose to the court under Rule 3.3 until the proceeding…
Could a firm litigate a zoning-board matter after one of its lawyers voted on the matter as a board member?
Opinion 97-14 required both the lawyer-board member to leave the board matter and the firm’s litigation lawyer to withdraw. It found the conflict nonwaivable and continuing after the board’s…
May a Vermont lawyer include litigation expenses in a quoted hourly rate?
Opinion 97-13 allows an hourly fee estimated to include expenses if it is reasonable and either covers litigation expenses or leaves the client liable for the difference; separate billing for…
Must a former South Carolina solicitor get the State's consent before representing a criminal defendant who was indicted during the solicitor's term, even if the solicitor's role in that case was minimal?
The committee concluded that because all indictments during the former solicitor's term were approved under his supervision, a Rule 1.11 conflict arises even where his involvement was minimal, but…
Could a lawyer defend a person by implicating a former criminal client in a related offense?
Opinion 97-12 said the lawyer could not represent the second defendant. The proposed defense would unavoidably use information from the former client's representation and put the clients' interests…
May a suspended Vermont lawyer work as a law clerk or investigator for a licensed lawyer?
Opinion 97-11 permitted supervised work for a licensed lawyer as a clerk, paralegal, or investigator if it did not amount to practicing law or mislead others about the suspension. The suspended…
Could counsel accept a replacement settlement check when the client refused to endorse the original?
Opinion 97-10 said counsel should not accept a substitute check payable to counsel as trustee while the client’s reason for objecting remained unknown. It did not reach the proposed distribution of…
When a lawyer represents herself in a case, can she contact the opposing party directly if she knows that party has a lawyer?
The committee concluded that the no-contact rule applied to a lawyer appearing pro se, so she could not communicate directly with a represented adverse party without that party's counsel's consent.
Is Georgia Formal Advisory Opinion 97-1 still in effect?
No. The State Bar of Georgia has replaced Formal Advisory Opinion 97-1, and its text is not published in the online handbook. The State Bar directs anyone seeking the replaced opinion to contact the…
Could a Vermont firm hire an opposing firm’s paralegal and continue the pending litigation?
Opinion 97-09 permitted the hire and continued representation if the new firm effectively screened the paralegal and protected the former firm client’s information. If screening was ineffective,…
Can a South Carolina lawyer transmit confidential client communications by email over private, commercial, or Internet networks?
The committee concluded email carries a reasonable expectation of privacy and its use does not waive confidentiality under Rule 1.6, while noting a lawyer still owes reasonable care and may discuss…
How long did Vermont Opinion 97-08 say a lawyer had to retain closed client files?
The committee set no fixed retention period. It called for judgment based on file contents, protection of confidentiality, and preservation of client property and material useful in foreseeable matters.
Can a South Carolina lawyer give a second opinion to someone the lawyer knows is represented by another lawyer in the same matter, without the first lawyer's consent?
The committee concluded a lawyer may discuss a pending matter and give a second opinion to a person represented by another lawyer without that lawyer's consent, but must qualify any opinion that…
Could a Vermont lawyer put a prepaid flat fee for future work directly into a business account?
Opinion 97-07 required advance payments for unearned work, including flat fees, to remain segregated in client trust until earned. The lawyer could not withdraw disputed funds before the dispute was…
Did a judge need to recuse from future cases involving a defendant who had sought recusal in one case?
The Committee saw no basis for recusal absent a specific Canon 3(E) ground or other material evidence of bias, on the facts the judge supplied.
Could defense counsel tell a motorist to refuse an evidentiary alcohol test under newly enacted H.70?
Opinion 97-06 said counsel could not advise refusal where the law criminalized it and its statutory conditions were met. Counsel could explain the legal consequences of either choice and a…
Must a judge recuse when a lawyer appearing before him rents in an office building he partly owns?
The Committee required recusal for cases involving an attorney tenant even when another partner managed the building and the judge had no direct tenant dealings, subject to Canon 3F disclosure and waiver.
Can a South Carolina lawyer send direct-mail solicitations to companies and seminar attendees not known to need legal services, and which Rule 7.3 notice and filing requirements apply?
The committee concluded the lawyer may send direct-mail solicitations and brochures to companies and seminar attendees not known to need legal services; only solicitations to prospective clients…
Does having an interpreter, counselor, or parent present during a client interview destroy the lawyer's duty of confidentiality?
No. The opinion concluded that ER 1.6's confidentiality duty is broad and unaffected by the presence of an interpreter, advocate, or parent who facilitates communication; whether their presence…
Did Vermont Opinion 97-05 require encryption for client email, and how did it treat a public lawyer website?
Under the former Code, Opinion 97-05 allowed ordinary unencrypted client email on its stated reasoning, while acknowledging unusually sensitive communications. It treated a public lawyer website…
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?
The committee concluded the lawyer may take the case only on the condition that the hearing be continued; the lawyer cannot accept the case and leave the client unrepresented at the hearing, and…
May a Vermont lawyer use a collection agency to collect a former client's unpaid bill and disclose information about the representation?
Opinion 97-04 permits a lawyer to use a collection agency for a former client's overdue bill, but limits disclosure to information necessary to establish the fee and requires the agency to preserve…
Can a South Carolina lawyer serve as an arbitrator or mediator in a dispute where the lawyer's own firm represents one of the parties, and can the parties' consent cure that conflict?
The committee concluded a lawyer may not serve as an intermediary in a matter where the lawyer's firm appears as counsel for a participant, whether the lawyer is a partner or an associate, and the…
Could a Vermont firm continue litigation after hiring a lawyer from its opposing counsel’s firm?
Opinion 97-03 allowed continued representation because the lateral lawyer had not worked for the opposing former-firm client and held no usable confidential information. It called for keeping the…
Can a corporation offer legal services to its customers through its own in-house lawyers, and can a lawyer help it do so?
No. A management-services corporation that provides legal services to outside customers through its in-house lawyers engages in the unauthorized practice of law, and a lawyer who helps it do so acts…
Can a South Carolina law firm pay paralegals a bonus calculated as a percentage of the amount each paralegal billed to clients?
The committee concluded a firm may pay paralegals a bonus based on amounts billed to clients as a permitted profit-sharing arrangement under Rule 5.4(a)(3), so long as the amounts billed remain…
When a client's health insurer has a subrogation claim against a personal injury settlement, can the lawyer disburse all the proceeds to the client?
No. The opinion concluded that a FEHBA plan's contractual subrogation language gives the insurer an interest in the settlement proceeds under ER 1.15(b), so the lawyer must notify the plan and…
Could plaintiff’s counsel speak directly with treating physicians employed by the defendant medical facility?
Opinion 97-02 permitted direct contact with the two treating physicians, including a vice president, about treatment and expert opinions. Counsel could not seek the facility’s privileged internal…
Can a lawyer hire someone to hand out brochures and sign up injury clients in person?
No. In-person solicitation of prospective clients for the lawyer's pecuniary gain is improper whether the lawyer does it personally or through an employee or other representative.
Can a South Carolina lawyer let a real estate seller pay the lawyer's fee for buyers who use the lawyer's firm to close, and recommend that arrangement to developer clients?
The committee concluded the seller may pay the lawyer's fee if the lawyer satisfies Rule 1.8(f) (client consent after consultation, no interference with independent judgment, confidentiality),…
Who may authorize a trade-association law center to disclose legal advice given to a municipal member's officials?
Opinion 97-01 treated the municipal corporation, rather than its calling official or the trade association, as the law center's client. Its governing body could authorize disclosure to other…
Can a lawyer give a client's name to a bank as a sales lead, and can in-house counsel pressure outside firms into handing over referral lists?
Only with client consent: a lawyer may not pass client names to a bank for marketing without the clients' permission, and in-house counsel may ask outside firms for referral names but may not coerce…
What did Orange County's 1997 opinion say about client calls, email, and fax confidentiality?
The opinion permits cellular calls and fax use with attention to confidentiality, encourages but does not require email encryption, and says a fax legend cannot cure a misdirected transmission.
If I take over a client's matter from a lawyer who stepped away due to illness, must I tell the client when that lawyer returns to practice?
No. The successor lawyer owes no duty to the client or the referring lawyer to report the referring lawyer's recovery and return, though the lawyer must answer the client's direct questions and keep…
May an Illinois lawyer email clients without encryption, and do the solicitation rules apply to a law firm web site?
Yes, unencrypted email (including over the Internet) does not violate confidentiality absent unusual circumstances. A passive web site is advertising, not solicitation, but targeted online messages…
After a client fires me and hires new counsel, can I call the client directly to protect my fee or win the case back?
No. A discharged lawyer may not contact the now-represented former client to pursue fees or recapture the case, and false or comparative statements in doing so violate the advertising and…
Can an Illinois firm advertise that it 'specializes' in a field, and can it farm work out to outside lawyers without telling the client?
A firm may say it 'concentrates' in a field but may not claim to 'specialize,' and it may not delegate the matter to lawyers outside the firm without the client's disclosure and consent.
Can a lawyer who once worked for a state child-welfare agency as a non-lawyer supervisor now represent clients in juvenile court against that agency?
Yes, if the lawyer did not personally and substantially participate in the same matter while at the agency and holds no confidential government information that could be used against the agency or…
Can a lawyer advertise past jury verdicts, damage awards, or client testimonials, and what disclaimer is needed?
The committee concluded that advertising specific results, such as jury verdicts or damage awards, does not comply with RPC 7.1(b) even if true unless it carries an equally prominent disclaimer…
When discovery sanctions are sought (or awarded) against a California lawyer and the client jointly, what must the lawyer do to satisfy the duties to inform the client, oppose the motion, and (where necessary) withdraw?
Per California Formal Opinion 1997-151, a motion for discovery sanctions against the lawyer and client is a significant development the lawyer must communicate under former Rule 3-500. Different but…
When California lawyers share office space, staff, or facilities without forming a law firm, what must they do to comply with their ethics duties regarding the public and client confidentiality?
Per California Formal Opinion 1997-150, office-sharing or staff-sharing attorneys must take reasonable steps under the circumstances to ensure clients and potential clients are not deceived, misled,…
May a California lawyer pay a non-expert witness for time spent preparing for a deposition or trial, even when preparation does not cause a loss of income?
Per California Formal Opinion 1997-149, a lawyer may pay a non-expert witness for time spent preparing for a deposition or trial, but must comply with former Rule 5-310(B). Compensation for…
If a California lawyer prepares living-trust documents that a non-lawyer marketer sells to the public through seminars, with the marketer steering every prospect toward a living trust and controlling the engagement, what California ethics rules does the lawyer violate?
Per California Formal Opinion 1997-148, when a lawyer permits a non-lawyer who markets living-trust packages to hold out to the public that the lawyer will prepare the documents, while letting the…
Can a lawyer charge a contingent-fee client interest on litigation expenses the lawyer advanced and financed by a bank loan?
Yes, with limits. The opinion concluded a lawyer may charge a client interest on advanced litigation expenses to recover the lawyer's own bank borrowing cost, so long as the interest does not exceed…
Must a Washington lawyer who receives more than $10,000 in cash from a client disclose the client's identity on IRS Form 8300?
The committee concluded the lawyer must file Form 8300 as federal law requires, but where the client's identity is confidential under RPC 1.6 the lawyer must omit the identifying information, inform…
Can a lawyer who rents office space from a law firm represent a client adverse to one of that firm's clients?
The committee concluded the RPCs do not prohibit a tenant lawyer from representing clients adverse to the landlord firm's clients, provided the businesses are separate, the tenant exercises caution…
Can a firm keep a non-partner's name in the firm name on its letterhead, and may that lawyer instead be listed 'of counsel'?
The committee concluded it is improper to keep a non-partner's name in the firm name on the masthead letterhead, but that it is not improper to list the lawyer as 'of counsel' where he continues to…
Can a part-time tribal court judge also represent litigants in that same tribal court?
The committee concluded RPC 1.12 does not prohibit a part-time tribal court judge, at trial or on appeal, from representing a litigant in the court in which the judge sat, so long as the matter is…
How these opinions are useful
- Understand the rules: Ethics opinions interpret how the rules of professional conduct apply to real fact patterns.
- Weight varies by state: Most bar opinions are advisory, not binding like court discipline decisions, though formal opinions carry substantial weight. Some states go further: Georgia and Virginia opinions approved by the state supreme court bind lawyers there, New Jersey's bind the ethics committees that decide grievances, Rhode Island and Alabama protect the lawyer who asked for an opinion and followed it, and Utah and North Dakota protect lawyers who rely on one. Each opinion page says how much weight its opinion carries.
- Working guidance: The committee shows lawyers what the rule actually requires day to day (conflicts checks, fee letters, intake screens, withdrawal mechanics).
- Practice research: Cite ethics opinions in fee agreements, engagement letters, conflict waivers, and disqualification motions.