Can a South Carolina lawyer associate with an out-of-state lawyer to handle estate planning for South Carolina residents?

Plain-English summary

A South Carolina lawyer was asked to associate with a Florida lawyer to assist in estate planning for South Carolina residents. The committee was asked, in light of its Opinion 93-24, whether such an arrangement was permissible.

The committee concluded the two may serve as co-counsel, subject to limitations. It noted the South Carolina rules contemplate an out-of-state lawyer associating with a South Carolina lawyer for joint representation, and that interstate practice is governed by law rather than ethics. But three limits applied. First, the South Carolina lawyer may not act as a mere conduit; he must be jointly responsible for the representation, because if the out-of-state lawyer takes primary responsibility and the South Carolina lawyer's role is perfunctory, the South Carolina lawyer may be tacitly permitting unauthorized practice. Second, if the South Carolina lawyer has reason to believe the out-of-state lawyer improperly solicited the clients (as in Opinion 93-24), he may not associate to represent those clients, because doing so would ratify the improper solicitation (Rule 8.3(a)). Third, if the out-of-state lawyer's South Carolina activity becomes "substantial and continuous" rather than an occasional association, it may constitute the practice of law requiring South Carolina admission (Rule 8.5 comment); permitting that to continue could be construed as assisting unauthorized practice under Rule 5.5(b).

Currency note

This opinion was issued in 1993, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can the South Carolina lawyer co-counsel with the Florida lawyer at all?

A: The committee concluded yes, the rules contemplate such an association, provided the South Carolina lawyer remains jointly responsible for the South Carolina clients' representation.

Q: What if the South Carolina lawyer's role is only nominal?

A: Then the committee warned he may be tacitly permitting the out-of-state lawyer's unauthorized practice, violating the rules. He cannot serve as a mere conduit.

Q: What if the out-of-state lawyer improperly solicited the clients?

A: The South Carolina lawyer may not then associate to represent those clients, because doing so would ratify the improper solicitation under Rule 8.3(a).

Q: When does the out-of-state lawyer need South Carolina admission?

A: If his South Carolina activity becomes "substantial and continuous" rather than an occasional association, it may be the practice of law requiring admission, and permitting it could be assisting unauthorized practice under Rule 5.5(b).

Background and rules framework

The opinion applied Rule 5.5 (unauthorized practice; assisting non-admitted practice), Rule 8.5 (jurisdiction/admission, via its comment), and Rule 8.3(a) (reporting and not ratifying misconduct), with reference to the court-admission rules and its Opinion 93-24. The South Carolina rule numbers correspond to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 5.5 / Model Rule 5.5: unauthorized practice; assisting a non-admitted lawyer (Rule 5.5(b)).
• South Carolina RPC 8.5 / Model Rule 8.5: jurisdiction and admission (comment).
• South Carolina RPC 8.3 / Model Rule 8.3: reporting professional misconduct (Rule 8.3(a)).

Cases:

• S.C. Medical Malpractice Joint Underwriting Ass'n v. Froelich, 297 S.C. 400, 377 S.E.2d 306 (1989), unauthorized practice of law.

Other opinions cited:

• SC Bar Adv. Op. 93-24: improper solicitation by an out-of-state lawyer.

See also

• SC Bar Ethics Op. 94-27: Practicing Law Through an Online Service
• SC Bar Ethics Op. 94-17: Agency Contract Lawyer and Firm Conflict

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-35/

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 93-35

Lawyer X, who presently resides and practices law in South Carolina, has been asked to become associated with Lawyer Y, a Florida lawyer, for the purpose of assisting the Florida lawyer in estate planning for South Carolina residents.

Question:
In light of Advisory Opinion 93-24 is there a permissible arrangement whereby Lawyers X and Y may work together in estate planning for South Carolina residents?

Summary:
Subject to certain limitations, as long as the South Carolina lawyer remains responsible for the representation of the South Carolina residents for whom the two lawyers are doing work, they may serve as co-counsel for purposes of estate planning for the South Carolina residents.

Opinion:
The South Carolina Rules clearly contemplate an arrangement whereby an out-of-state lawyer may become associated with a South Carolina lawyer for joint representation of a client. See Rule 413, Section 1, Section A; Rule 404, SCACR. See also Comment, Rule 8, SCACR 407. Interstate practice is commonplace in present practice. The practice of law across state lines is governed by law, not ethics. ABA Informal Op. No. 1059 (1969). The situation commonly involves the association by an in-state lawyer with an out-of-state lawyer who specializes in a particular area of practice.

The propriety of becoming associated with an out-of-state lawyer to assist in the representation of South Carolina residents is subject to several limitations.

The South Carolina lawyer may not serve merely as a conduit for the out-of-state lawyer, but must be jointly responsible for the representation of the South Carolina client. If the out-of- state lawyer assumes primary responsibility for representing the client, and the South Carolina lawyer's involvement is merely perfunctory, the South Carolina lawyer may be tacitly permitting the unauthorized practice of law by the out-of-state lawyer. This would be a violation of the Rules of Professional Conduct. See Advisory Opinion No. 93-24.

Second, if the South Carolina lawyer has reason to believe that the out-of-state lawyer improperly solicited the clients, such as would have been the case under the facts of Advisory opinion No. 93-24, he may not thereafter become associated with the out-of-state lawyer for the representation of those clients. To do so would ratify and approve the improper solicitation of the clients by the out-of-state lawyer. Rule 8.3(a).

Third, if the out-of-state lawyer's activity in South Carolina becomes "substantial and continuous," as opposed to simply an occasional association, his activity may be deemed to be the practice of law such that he will be required to become admitted to the South Carolina Bar. Comment, Rule 8.5. The South Carolina lawyer should be aware of this limitation, because to permit the "substantial and continuous" activity to continue could be construed as assisting in the unauthorized practice of law. Rule 5.5(b) See SC Medical Malpractice Joint Underwriting Ass'n. v. Froelich, 297 SC 400, 377 SE 2d 306 (1989).