Can a South Carolina lawyer set up and serve as trustee of a legal defense fund for a retired judge facing a grand jury investigation?

Plain-English summary

A lawyer whose practice was limited to estate planning, tax, and closely held corporation matters was asked by a retired municipal court judge, who expected a state grand jury indictment over his judicial tenure, to establish a legal defense fund for his benefit. The lawyer would have no attorney-client relationship with the judge, no involvement with the grand jury or the subject matter, and no contact with his defense attorneys; her role would be limited to setting up the John Roe Legal Defense Fund, serving as its trustee, soliciting and holding contributions, approving defense-related expenditures, taking no fee, and returning leftover funds pro rata. The committee concluded she is not barred from serving in that role.

The committee reasoned that, assuming the judge is retired and not subject to recall and the lawyer is unlikely to practice in municipal court, there is no potential violation of Rule 3.5, which bars seeking to influence a judge, juror, or member of the jury venire. It noted that Rule 1.8(f) would bar the judge's defense counsel from accepting compensation from the fund unless the judge consented after consultation, there was no interference with counsel's independent judgment or the client-lawyer relationship, and information was protected under Rule 1.6; but because the lawyer acts at the judge's request, his consent to the third-party payment may be assumed, and nothing suggested the trustee would direct the defense. The committee added that defense counsel, not the trustee, bears the Rule 1.6 duty not to disclose information about the representation to anyone, including the fund's trustee, without consent.

Currency note

This opinion was issued in 1996, 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 Treat this page as historical context, not current guidance.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 a lawyer create and manage a legal defense fund for someone she does not represent?

A: The committee concluded a lawyer with no attorney-client relationship to the beneficiary and no role in the defense is not barred from establishing and serving as trustee of the fund.

Q: Does Rule 3.5 bar a lawyer from funding a judge's defense?

A: The committee found no potential Rule 3.5 violation, assuming the judge is retired and not subject to recall and the lawyer is unlikely to practice in his court.

Q: Who must satisfy Rule 1.8(f)'s third-party-payment conditions?

A: The committee placed those conditions on the judge's defense counsel, not on the trustee; the judge's consent could be assumed because the fund is set up at his request.

Background and rules framework

The opinion applied Rule 3.5 (improper influence on judges and jurors), Rule 1.8(f) (accepting compensation for representing a client from a third party), and Rule 1.6 (confidentiality), each corresponding to the like-numbered Model Rule as the rules stood in 1996.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.5 / Model Rule 3.5: improper influence on a judge, juror, or venire member.
• South Carolina RPC 1.8(f) / Model Rule 1.8: compensation for representation from a third party.
• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality of information.

See also

• SC Bar Ethics Op. 96-02: Spouse Managing the Client
• SC Bar Ethics Op. 96-21: Conservator as Lawyer

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-96-14/

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 96-14

Jane Doe is a member of the South Carolina Bar with a practice limited to estate planning, federal income tax matters and closely held corporation issues. She has been asked by John Roe, another member of the S.C. Bar to establish a legal defense fund for his benefit. John Roe is a retired municipal court judge, who believes he will be the subject of a South Carolina State Grand Jury indictment covering alleged acts or omissions related to his tenure as a municipal court judge.

Jane Doe has no attorney-client relationship with John Roe and no involvement in any manner with the Grand Jury or the subject matters of the Grand Jury. She has no contact with his defense attorneys and will not assist in his defense.

Her role will be limited to establishing the John Roe Legal Defense Fund and serving as its trustee. As trustee she shall solicit funds in writing from selected individuals, deposit the funds in a non-interest bearing checking account and maintain records of all expenditures and receipts. These records will be available to all contributors and any other person or entity, including the South Carolina Bar, on a need to know basis. The trustee shall determine the appropriateness of each expenditure, which shall be limited to payment of legal fees, investigation fees and costs directly related to the defense of John Roe. The trustee shall accept no fee and shall be reimbursed only for normal and customary bank charges associated with the account. Funds remaining after conclusion of the case shall be returned to the contributors based upon a pro-rata formula.

Question:
Is a member of the bar permitted to establish and serve as trustee of a Legal Defense Fund for the benefit of a former judge?

Summary:
Jane Doe, a member of the bar, whose practice has not required her to practice in the court of a retired municipal judge, who has no attorney-client relationship with the retired judge and who is not and will not be involved either in the Grand Jury activities that may subject him to indictment or in his defense, is not barred by an ethical rule from establishing and serving as the trustee of a Legal Defense Fund for the retired judge's benefit.

Opinion:
Assuming that (a) John Roe is a retired judge not subject to recall, and (b) that in any event Jane Doe is unlikely to practice in municipal court, there is no potential violation of S.C.R.P.C. 3.5 which bars a lawyer from seeking "to influence a judge, juror, [or] member of the jury venire". S.C.R.P.C. 1.8(f) would bar John Roe's defense counsel from accepting compensation from the proposed legal defense fund unless (1) Roe consented after consultation, (2) there was no interference with either the defense counsel's "independence of professional judgment or with the client-lawyer relationship," and (3) information relating to the representation was protected as required by Rule 1.6. Because Jane Doe is acting at the request of John Roe, it may be assumed that Roe consented to the third-party payment. Moreover, nothing in the proposal suggests any intention by the defense fund trustee to be involved in or to direct the activities of defense counsel. Defense counsel bears responsibility under Rule 1.6 not to disclose information relating to the representation to anyone, including the defense fund trustee, without prior consent, which consent may be impliedly authorized by the client's instructions to counsel.