Legal Ethics Opinions

Does a volunteer attorney giving general legal information form an attorney-client relationship, and can they advise both sides?

The opinion concluded that whether an attorney-client relationship forms is a fact question turning on the parties' intent. It is not formed merely because a caller knows the volunteer is an attorney,…

When a client stops paying, can a lawyer withhold services, withdraw, or keep the client's file until the bill is paid?

The opinion concluded that a lawyer may not withhold services in a continuing representation to pressure a client to pay, because the duties of competence, diligence, and loyalty leave no room for int…

Can a law firm send a paralegal, instead of a lawyer, to attend a real estate closing on a client's behalf?

The opinion concluded that a properly trained paralegal may attend a real estate closing on a client's behalf where a firm lawyer has reviewed the documents, the paralegal gives no legal advice, and t…

Can in-house counsel represent someone other than the employer, at the employer's direction, while still being paid by the employer?

The opinion concluded that in-house counsel may, with safeguards, represent a third party at the employer's direction while paid by the employer, but in doing so steps outside the in-house role. The o…

Can a private party's lawyer contact government officials directly when the agency is represented by counsel in the matter?

The opinion concluded that under SCR 20:4.2 a lawyer for a private party generally may not directly contact covered government officials about a matter once the lawyer knows the agency is represented …

Must a South Carolina lawyer file every mass solicitation letter with the Board, or only those sent to people known to need legal services?

The committee concluded that although Rule 7.3(d) is ambiguous, the reasonable reading is that the filing requirement applies only to written solicitations subject to Rule 7.3(c), meaning those target…

Can a South Carolina lawyer run a separate non-legal business under the law firm's name and deposit its income in the firm operating account?

The committee concluded the Rules do not bar depositing the side business's commissions in the firm's general operating account (but not the trust account), so long as the lawyer carefully accounts to…

Can a close family member of a district attorney defend criminal cases prosecuted by that DA's office?

The committee concluded a DA's family member is not automatically disqualified from defending criminal cases in the DA's county, and client consent after full disclosure usually cures any conflict; th…

When a client disputes a medical lien on settlement proceeds, can the lawyer set a deadline for the lienholder to act and then pay the client?

The committee concluded a lawyer holding settlement proceeds subject to a valid assignment or lien may not impair the third party's rights by imposing a time limit on enforcement, and may not disburse…

Does hiring a lawyer from an opposing firm disqualify either firm when that lawyer never worked on or learned anything about the disputed cases?

The committee concluded Rule 1.9(b) disqualifies a migrating lawyer only when the lawyer has actual knowledge of confidential information; where the lawyer acquired no information about the matter at …

Can a South Carolina law firm run an advertisement seeking a named representative for a class action before any suit is filed?

The committee concluded a general media advertisement seeking a class representative is governed by Rules 7.1 and 7.2, not the targeted-solicitation rule 7.3, and need not be labeled as a solicitation…

Can a lawyer charge a client a non-refundable retainer for a particular case or service?

The committee concluded a lawyer may not charge a non-refundable retainer for a specific case or service: advance fees are earned as work is done, must be held in trust until earned, and a truly non-r…

Is there a conflict when one spouse represents the plaintiff and the other spouse is appointed guardian for an incompetent person in the same matter?

The committee concluded a conflict exists under Rules 1.7(b) and 1.8(i) when the plaintiff's lawyer's spouse is appointed to protect a minor or incompetent in the same matter; the plaintiff might cons…

How long must a lawyer keep a former client's property that is potential evidence, and how may the lawyer dispose of it if the client never retrieves it?

The committee concluded there is no fixed time; under Rule 1.15(a) the lawyer must safeguard a former client's non-fund property as a fiduciary until diligent return efforts and final notice have been…

Can a South Carolina lawyer list a former judicial clerkship on a firm announcement, and practice solo in one city while in a partnership in another?

The committee concluded a former law clerk may list that clerkship on a firm announcement so long as it is not false or misleading under Rule 7.1, and a lawyer may practice as a sole practitioner in o…

Must a South Carolina lawyer report another lawyer's misconduct learned only secondhand from a friend or former client?

The committee concluded the lawyer has no duty to report under Rule 8.3 because the duty requires actual knowledge, not hearsay, and because the information may be protected by Rule 1.6 if the friend …

Can a lawyer join a for-profit network that matches callers to lawyers by zip code and practice area, and pay its fees?

No. The opinion concluded the network was a lawyer referral service not sponsored by a bar association, so lawyers could not participate under ER 7.1(r), and its connection-service and application fee…

Must a South Carolina lawyer who finds tax liens against another lawyer during a title search report it to the grievance board?

The committee concluded Rule 8.3(a) does not require reporting, because tax liens discovered in a routine title search do not, without independent knowledge of their basis, raise a substantial questio…

How long must a lawyer wait before sending a direct-mail solicitation to a relative of someone who recently died in an accident?

Arizona set no fixed waiting period. The opinion concluded that ER 7.3(d)(4) uses a case-specific test, and the lawyer must assess factors like the closeness of the relationship and the suddenness of …

Can a South Carolina lawyer direct or staff a membership association's legal services plan and pay to be listed in its lawyer directory?

The committee concluded a lawyer may be employed as director or as a screening telephone operator for the association's legal services division under Rule 1.13, may pay an annual fee to be listed in i…

Can a lawyer ethically discuss confidential client matters on a cellular or cordless phone?

Yes, but with caution. The opinion concluded that using a portable phone was not by itself an ethical breach, while warning that such calls can be intercepted and that lawyers should exercise caution …

Can a chief public defender also serve as counsel to a school district, and represent juveniles facing both school discipline and Family Court?

The committee concluded there is no per se bar to serving as both chief public defender and school district counsel, with conflicts handled case by case; but when the public defender is disqualified, …

Can a lawyer accept a referral fee from a medical provider for sending a client to that provider?

No. The opinion concluded that a lawyer may not accept a fee for referring a client to a medical practitioner; the lawyer's financial stake creates a conflict under ER 1.7, and Arizona law made paying…

Can a personal-injury lawyer give part of the lawyer's own fee to the client so the client recovers something from a settlement?

Yes, if the gift is genuinely charitable, the client was already retained, and there is no expectation of repayment. But the lawyer may not make the gift where a medical provider discounted its bill o…

Can a municipal attorney who advised staff on a zoning decision also advise the zoning board hearing the appeal of that decision?

The committee concluded no Rule prohibits a municipal attorney from advising the municipality at different stages of one zoning matter, because under Rule 1.13 the client is the municipality; other la…

Can a prosecutor and defense lawyer include a waiver of ineffective-assistance and post-conviction claims in a plea agreement without violating the rule against limiting malpractice liability?

The Committee majority concluded yes, reading ER 1.8(h) to bar only agreements that prospectively limit a lawyer's malpractice liability, not a defendant's waiver of post-conviction or ineffective-ass…

Must a lawyer report opposing counsel's improper contact with the client's employees, including an alleged misidentification, under Rule 8.3?

The committee concluded a lawyer must report another lawyer's violation if it raises a substantial question of honesty, trustworthiness, or fitness, regardless of whether the violator knew it was impr…

Can an accountant prepare a client's articles of incorporation, or is that the unauthorized practice of law?

The opinion concluded that while individuals may complete and file their own corporate documents, a nonlawyer (including an accountant) who gives another person assistance or advice in completing arti…

Can a personal injury lawyer pay a client's hospital deposit so the client can get surgery during the case?

The opinion concluded that an attorney may not advance money to a hospital for a client's medical expenses, because Rule 1.8(d) bars financial assistance to a client in litigation except for the expen…

Can a former prosecutor now in private practice represent crime victims in civil suits against defendants he was prosecuting in office?

The committee concluded that under Rule 1.11 the former solicitor may not represent a private client in connection with a matter in which he participated personally and substantially as a prosecutor u…

If my firm defends a city, can I represent clients before that city's human rights commission?

The opinion concluded that a lawyer whose firm defends a city may represent clients in unrelated matters before the city's human rights commission only with the consent of both clients after full disc…

Can a South Carolina lawyer who is also a licensed real estate broker collect both a commission and a legal fee in the same transaction?

The committee concluded a lawyer probably may not act as broker for one party and lawyer for the other, but may serve the same party as both broker and lawyer, and take both a commission and a legal f…

If a colleague once confided a legal problem to me as a lawyer, can I later become in-house counsel for the organization on the other side?

The opinion concluded that a lawyer who had a brief but confidential discussion with a faculty member about his dispute with a university may still serve as the university's counsel, provided the lawy…

What can a South Carolina lawyer do with stale, never-cashed trust-account checks owed to medical providers?

The committee concluded the lawyer may not donate the leftover trust funds to the Office of Appellate Defense or any other entity, because the uncashed checks belong to third parties under Rule 1.15(b…

Can a lawyer who served as a minor's guardian ad litem then represent that minor in the related personal injury lawsuit?

The opinion concluded that a court-appointed guardian ad litem who recommended rejecting a settlement may later represent the same minor in the related personal injury suit, with no specific prohibiti…

Can a lawyer keep representing both a husband and wife in their injury suit after the couple decides to divorce?

The committee concluded the Rules do not preclude continued dual representation of both spouses if the lawyer reasonably believes the conflict risk is minimal and the Rule 1.7(b) disclosure-and-consen…

Can a lawyer who left a firm get copies of the closed files for the clients she handled there?

The opinion concluded that a lawyer who has left a firm may have access to the firm's closed files for clients with whom she had an attorney-client relationship, that a client cannot be denied access …

Can a lawyer represent a corporation when the lawyer is the brother of its president and main shareholder?

The opinion concluded that being related to a corporation's president and principal shareholder does not by itself create a conflict, because the corporate lawyer's duty runs to the corporation, but t…

If an out-of-state lawyer commits fraud in Illinois, does an Illinois lawyer have to report it to the disciplinary authorities?

The opinion concluded that an Illinois-admitted lawyer must report another lawyer's dishonesty or fraud under Rule 8.3(a) even when that lawyer is not admitted in Illinois, reporting to the Illinois A…

Can a firm that defends a city in one case also sue that same city for a different client in an unrelated matter?

The opinion concluded it is not per se improper for a firm to sue a current client, including a public body, in an unrelated matter if both clients consent after full disclosure and a disinterested la…

Can my firm sue a city if one of my law partners works full-time as a police officer for that same city?

The opinion concluded that a firm should not represent a client in a claim against a municipality that employs one of the firm's partners as a full-time police officer, because the partner holds publi…

Is an Illinois lawyer who collected a full fee but never paid the court reporter committing an ethics violation?

The opinion concluded that an attorney's failure to advance or collect payment to satisfy a court reporter's fee is not, by itself, a violation of the Rules of Professional Conduct, because the lawyer…

Can a lawyer who defends criminal and traffic clients also serve as a part-time special prosecutor for juvenile cases in the same county?

The opinion concluded the lawyer may accept case-by-case appointment as a special prosecutor in juvenile matters, but only with full disclosure to and consent of any affected clients, and never in a c…

Can a lawyer who handled a client's divorce and real estate deals later represent that client's new spouse in a divorce against her?

The opinion concluded the lawyer had a conflict under Rule 1.9: because the prior divorce and real estate work for the former client was substantially related to the new divorce involving the same pro…

When a client discharges an Illinois lawyer and demands all the old files, who pays for the copies and what must be returned?

The opinion concluded that on termination the lawyer must return all original papers and property the client provided (active and inactive files), may keep copies at the lawyer's own expense, and may …

Does an Illinois lawyer have to give the client the lawyer's own notes and investigative reports from the case file?

The opinion concluded that a lawyer's notes, drafts, and internal investigative materials are the lawyer's property and need not be turned over to the client, and that a lawyer may also refuse to disc…

When a contingent fee agreement ends early, can the lawyer collect a fee, and what can a contingent fee contract say about fees on termination?

The committee concluded a contingent fee agreement may give the lawyer a quantum meruit fee when the client discharges the lawyer without cause, but only up to the maximum contract fee and only when t…

Can a California lawyer send an investigator to interview accident victims and witnesses when the lawyer does not yet represent any client in the matter?

Per California Formal Opinion 1995-144, clientless investigations risk violating former Rule 1-400(C). If the investigator, with the lawyer's express or implicit authorization, conveys any message abo…

Can a California lawyer hire a 'medical liaison' to give a promotional presentation to physicians who may then refer patients, and how does Rule 1-400 apply across the chain from lawyer to liaison to physician to patient?

Per California Formal Opinion 1995-143, the liaison's promotional presentation is a 'communication' subject to former Rule 1-400. The lawyer may be disciplined for untrue statements or other violation…

Can a California criminal defense lawyer send targeted direct-mail letters ('jail mail') to recently arrested people based on police booking records, and what rules govern the letter's content, transmission, and the use of a non-attorney service to compile the list?

Per California Formal Opinion 1995-142, truthful and non-deceptive direct mail marketing of legal services is constitutionally permitted under Shapero, but targeted mailings to arrestees are subject t…

When a California lawyer or law firm provides non-legal services to a client, directly, through a non-lawyer employee, or through a lawyer-owned entity, what conflicts-of-interest, confidentiality, advertising, and fee-sharing rules apply?

Per California Formal Opinion 1995-141, a lawyer may render non-legal services to a client directly, through a non-lawyer employee, or through a lawyer-owned entity, but must comply with the Rules of …

Can a California lawyer advise a client to buy insurance, refer the client to a specific insurance agent, and accept a commission from that agent for the referral?

Per California Formal Opinion 1995-140, a lawyer may do so only by making full written disclosure under former Rule 3-310(B)(4) of the referral arrangement and its actual and reasonably foreseeable ad…

When a California lawyer is hired by an insurer to defend an insured, who is the client when the lawyer learns information that calls coverage into question, and what must the lawyer do?

Per California Formal Opinion 1995-139, the lawyer owes loyalty to the insured. Information adverse to the insurer learned in defense of the insured may not be disclosed to the insurer under Business …

When a client in litigation insists on drafting court papers, appearing without the lawyer, and capping the lawyer's hours in ways that block the lawyer's independent judgment, what are the lawyer's duties and when must the lawyer withdraw?

The committee concluded the lawyer must keep control over the accuracy of court filings and the exercise of independent judgment, must counsel the client (preferably in writing) about the consequences…

WSBA

Can a public defender office contract to appoint and pay outside conflict counsel from its own budget?

The committee was of the opinion that a contract requiring the public defender office to recognize conflicts and hire outside counsel from its budget raises conflict issues under RPC 1.7 and 1.9, and …

WSBA

Can a lawyer enter an agreement with a union to refer its members for legal services?

The committee was of the opinion that, although such a union-referral agreement might on its face appear to violate RPC 7.3, the U.S. Supreme Court has held in a series of cases that such arrangements…

WSBA

Can a law firm include nonlawyer staff in a profit-sharing plan based on a percentage of firm income?

The committee was of the opinion that a profit-sharing plan under which nonlawyer staff receive a percentage of income after monthly overhead and guarantees to partners is permitted by RPC 5.4(a)(3).