When a firm lawyer can no longer do legal work, what must the firm do for that lawyer's clients before reassigning their matters?

Plain-English summary

A two-office firm had one lawyer, "A," staffing its second office. A newly diagnosed condition would prevent Lawyer A from performing legal services, though the firm would keep him on for administrative work and have lawyers from the main office travel to meet his clients. The firm's client contracts gave it discretion to assign personnel and provided that clients engage the firm, not particular lawyers; the firm planned to advise clients that the work would mostly be done by main-office lawyers and to list Lawyer A as "of counsel." The committee was asked whether any further action was required.

The committee concluded that, despite the contract terms, Rule 1.6 considerations require that clients who began with Lawyer A and whose work he performed be informed of the situation and how their matters will be handled going forward. Citing the Rule 1.6 "Authorized Disclosure" comment (lawyers in a firm may share client information unless the client has restricted it), it advised the firm to treat clients as individuals and follow each client's wishes. Drawing on the principle that lawyer-client transactions should be fair and reasonable (Rule 1.8 comment), it advised confirming that Lawyer A's clients consent to representation by other firm lawyers. It also pointed to Rule 5.1(b) (supervisory lawyers must take reasonable steps to ensure subordinate lawyers comply with the rules) and Rule 5.2(a) (a lawyer is bound by the rules even when acting at another's direction). In sum, Lawyer A and the firm should ensure his clients understand and consent to the changes in their representation.

Currency note

This opinion was issued in 1994, 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 Treat this page as historical context, not current guidance.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: Did the firm's contract (engaging the firm, not a particular lawyer) excuse notifying clients?

A: No. The committee concluded that, even with that contract, clients who began with Lawyer A and whose work he did should be informed of the change and how their matters will be handled.

Q: Did clients need to consent to the reassignment?

A: The committee advised confirming that Lawyer A's clients consent to representation by other firm lawyers, drawing on the principle that lawyer-client transactions should be fair and reasonable.

Q: What supervisory duties applied as the firm reassigned the work?

A: Rule 5.1(b) requires supervisory lawyers to take reasonable steps to ensure the assigned lawyers comply with the rules, and Rule 5.2(a) binds each lawyer to the rules even when acting at another's direction.

Background and rules framework

The opinion drew on Rule 1.6 (confidentiality and its authorized-disclosure comment), the fairness principle behind Rule 1.8, and Rules 5.1 and 5.2 (responsibilities of supervisory and subordinate lawyers). The South Carolina rule numbers correspond to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality of information (authorized disclosure within a firm).
• South Carolina RPC 5.1 / Model Rule 5.1: responsibilities of supervisory lawyers (Rule 5.1(b)).
• South Carolina RPC 5.2 / Model Rule 5.2: responsibilities of a subordinate lawyer (Rule 5.2(a)).
• South Carolina RPC 1.8 / Model Rule 1.8: fairness of lawyer-client transactions (comment).

See also

• SC Bar Ethics Op. 94-35: Withdrawing From an Impaired Client
• SC Bar Ethics Op. 94-01: City Lawyer Co-Defendants

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-09/

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 94-09

Law Firm XYZ has offices in two South Carolina cities. Office I has several lawyers, while Office II employs only Lawyer "A". Lawyer "A" has performed legal services for clients as well as administrative services for XYZ.

Lawyer "A" has a recently diagnosed condition which will prevent him from performing legal services for clients. XYZ will continue to employ Lawyer "A" to perform administrative services for the firm.

When necessary, lawyers from Office I will travel to Office II to meet with clients. Existing contracts between XYZ and its clients provide that XYZ has discretion in assigning its personnel to the matter, and that the client is engaging XYZ and not particular lawyers.

Clients with cases in progress and future clients will be advised that the legal work will be done, for the most part, by lawyers at Office I. XYZ's stationery may be changed to indicate that Lawyer "A" is "of counsel".

Question:
Is any other action on behalf of XYZ's clients necessary on the part of "A" or XYZ?

Summary:
Assuming that the clients represented by Lawyer "A" are made aware of the situation and have consented and rules regarding confidentiality of information are followed, Lawyer "A" and XYZ are not required to take further action.

Opinion:
Rule 1.6 regarding confidentiality of information presents the first consideration for these attorneys. Rule 1.6(a) states that a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation. Even with the contract as described above, those clients which began representation with Lawyer "A" and whose work had been performed by Lawyer "A", should be informed of the situation and how their work will be handled in the future.

The comment to Rule 1.6, under "Authorized Disclosure", states:
Lawyers in a firm may, in the course of a firm's practice, disclose to each other, information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

In the same comment, it is also stated that a lawyer is impliedly authorized to make disclosures about a client . . .except to the extent that the client's instruction or special circumstances limit that authority.

Therefore, Lawyer "A" and XYZ are advised that they should treat the clients as individuals in communicating how the future legal work will be handled. They should follow the individual desires of the clients.

It is general principle that all transactions between a client and lawyer should be fair and reasonable to the client (see Comment to Rule 1.8). This principle supports confirming with Lawyers "A's" clients that they consent to be represented by other lawyers of XYZ.

Other rules to consider are Rule 5.1 and Rule 5.2. Rule 5.1(b) states that a lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to insure that the other lawyer conforms to the rules of professional conduct. This is an obvious rule for the partners of XYZ to follow in assigning duties to be performed for Lawyer "A's" clients. Rule 5.2(a) goes on to say that a lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another person.

In summary, Lawyer "A" and XYZ are advised to make sure that Lawyer "A's" clients understand and consent to the changes in their legal representation.