Can a South Carolina law office be staffed only by SC-licensed associates who report to partners not licensed in South Carolina?

Plain-English summary

A South Carolina associate in the SC office of a multi-state firm, where some firm members were licensed elsewhere but not in South Carolina, asked whether an SC office may be staffed only by associates, supervised by partners not licensed in the state.

The committee concluded a lawyer may practice under the supervision of a lawyer not licensed in South Carolina but must comply fully with the SC Rules. It explained there is no requirement that SC-licensed lawyers work only for other SC-licensed lawyers; associates are often licensed in several states and report to lawyers not licensed in the same states. So an SC office can have only SC-licensed associates and no SC-licensed partner present. Whether such staffing complies with S.C. Code Ann. 33-19-101 et seq. is a legal question the committee said is beyond its purview.

The opinion applies Rule 5.2: a subordinate lawyer is bound by the Rules even when acting at another lawyer's direction. Section (b) provides a safe harbor when the associate acts on a supervisor's reasonable resolution of an arguable question of professional duty, but it does not let the associate act in a way that violates the Rules or case law; a practice permitted in another state but not in South Carolina could not be undertaken here. Under Rule 5.4(c) the associate must preserve independent professional judgment, "at the peril of losing his employment with the firm," and cannot let a partner, SC-licensed or not, direct conduct contrary to law or professional responsibility. The committee noted one might argue Rule 1.7(b) (influence by a third person) applies, but said it believes that rule is not intended to address the partner-associate relationship.

In practice

Under this opinion, a multi-state firm's South Carolina office could be staffed entirely by SC-licensed associates reporting to out-of-state partners. The committee placed the controlling duties on the associate: full compliance with the SC Rules, the Rule 5.2(b) safe harbor available only for a reasonable resolution of an arguable question (not for conduct that violates the Rules), and the Rule 5.4(c) duty of independent professional judgment. The committee expressly left the corporate-statute question (S.C. Code Ann. 33-19-101 et seq.) outside its scope as a legal rather than ethical issue.

Common questions

Q: Can my SC office have no partner licensed in South Carolina?

A: Yes, as an ethics matter. The committee found no rule requires SC-licensed lawyers to work only for other SC-licensed lawyers, so an SC office may have only SC-licensed associates.

Q: If an out-of-state partner tells me to do something allowed in their state, can I do it here?

A: No. The opinion says a practice permitted in another state but not in South Carolina could not be undertaken in South Carolina by the associate.

Q: Does following my supervisor's instruction protect me under Rule 5.2?

A: Only within limits. Rule 5.2(b) is a safe harbor for acting on a reasonable resolution of an arguable question of professional duty; it does not authorize conduct that violates the Rules.

Background and rules framework

The opinion applies South Carolina's versions of Model Rule 5.2 (responsibilities of a subordinate lawyer) and Rule 5.4(c) (preserving independent professional judgment against direction by a third party), and discusses but sets aside Rule 1.7(b). It also references S.C. Code Ann. 33-19-101 et seq. as a legal-compliance question outside the committee's purview.

Citations and references

Rules of Professional Conduct:

• MR 5.2 / SC Rule 5.2 (subordinate lawyer)
• MR 5.4 / SC Rule 5.4(c) (independent professional judgment)
• MR 1.7 / SC Rule 1.7(b) (influence by a third person; discussed and set aside)

Statutes:

• S.C. Code Ann. 33-19-101 et seq. (professional corporations; compliance noted as a legal question outside the committee's scope)

See also

• ABA Formal Op. 467: Prosecutors' managerial and supervisory obligations
• SC Bar Ethics Op. 04-12: A public defender's duties when the caseload is excessive

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-04-13/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 04-13

RULES 1.7(b), 5.2, AND 5.4(c)

Facts
A lawyer licensed in South Carolina is an associate in the South Carolina office of a multi-state firm, some of whose members are licensed in other jurisdictions but not in South Carolina. The South Carolina associate of the multi-state firm has inquired as to the ethical propriety of the South Carolina office being staffed only by associates.

Question
May a South Carolina law office with associates licensed in South Carolina be supervised by partners or other supervisory lawyers not licensed in South Carolina?

Summary
A lawyer may practice law under the supervision of a lawyer not licensed in South Carolina but must comply fully with the South Carolina Rules of Professional Conduct.

Opinion
There is no requirement that lawyers licensed to practice law in South Carolina work only for other lawyers so licensed. Indeed, associates often are licensed in several states and report to lawyers not necessarily licensed in those same states. Those associates may handle South Carolina legal matters in this state or a foreign state. Hence, it is possible for a South Carolina law office to have only associates licensed in South Carolina and not have a partner either so licensed or present.

Whether an office so staffed by associates comports with S.C. Code Ann. 33-19-101, et. seq., is a legal issue and thus beyond the purview of the committee.

A subordinate lawyer is bound by the Rules of Professional Conduct even if he acts at the direction of another lawyer. See Rule 5.2. Section b creates a safe harbor if the associate acts in accordance with a partner’s reasonable resolution of an arguable question of professional duty. It does not permit the associate to act in a manner which would violate conduct required by the Rules and case law. For example, a practice permitted by the ethics rules in another state but not in South Carolina could not be undertaken in South Carolina by the associate.

The associate must preserve independent professional judgment. See Rule 5.4(c). He must do so at the peril of losing his employment with the firm. He cannot permit a partner to instruct him to act not in accordance with the law or his professional responsibilities whether that partner is or is not licensed in South Carolina. (One might also argue that Rule 1.7(b) regarding influence by a third person comes into play, but the committee believes that rule is not intended to address the interplay between a partner and an associate.)