Can a South Carolina law firm whose member is appointed to represent an indigent client or serve as a guardian ad litem contract with an outside lawyer to handle that appointed representation?

Plain-English summary

Lawyers in a small firm were frequently appointed to represent indigent clients or juveniles in family court, or to serve as guardians ad litem. The firm asked whether, when one of its members is appointed, it violates Rule 6.2 by contracting with another lawyer, not a member or associate of the firm, to provide that representation.

The committee concluded the firm does not violate Rule 6.2 merely by doing so. Rule 6.2 requires a lawyer not to seek to avoid a court appointment except for good cause, and its comment explains that a lawyer fulfills this responsibility by accepting a fair share of unpopular or indigent matters; it would be inappropriate for one lawyer to avoid appointed service in a way that unfairly increased another lawyer's burden. But an appointed lawyer may reasonably conclude the client would be better served by a lawyer with more experience or time. The committee found that if the appointed lawyer refers the matter to another lawyer and compensates that lawyer for handling it, the purposes of Rule 6.2 are fulfilled: the client receives the appointed representation and the second lawyer does not bear an unfair share of the economic burden.

The committee concluded there is no inherent ethical bar to the proposed contractual arrangement, but that the originally appointed lawyer should notify the client that substitution of counsel is being sought and ensure all necessary court approval for the substitution is obtained.

Currency note

This opinion was issued in 1997, 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 Treat this page as historical context, not current guidance.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 firm contract an outside lawyer to handle its member's court appointment?

A: The committee concluded yes. A firm does not violate Rule 6.2 merely by contracting with another lawyer to provide the appointed representation, provided court approval for substitution is obtained.

Q: Does this let a lawyer dodge appointments?

A: The committee cautioned that Rule 6.2 bars avoiding appointments except for good cause, and that it would be inappropriate to shift an unfair share of the burden, but it found the referral-and-compensation arrangement fulfills the rule's purposes because the second lawyer is paid.

Q: What steps must the appointed lawyer take?

A: The committee stated the appointed lawyer should notify the client that substitution is being sought and ensure all necessary court approval for the substitution of counsel is obtained.

Background and rules framework

The opinion applied Rule 6.2 (accepting court appointments; a lawyer shall not seek to avoid appointment except for good cause), corresponding to the like-numbered Model Rule, and relied on its comment regarding the shared responsibility to provide indigent representation.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 6.2 / Model Rule 6.2: accepting court appointments.

See also

• SC Bar Ethics Op. 97-04: Diligence and Continuances
• SC Bar Ethics Op. 97-15: Contacting a Child via GAL

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-29/

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 97-29

Lawyers practicing in a small law firm are appointed to represent indigent clients or juveniles in family court, or to serve as guardians ad litem in family court matters, on numerous occasions throughout the year.

QUESTION:
When a member of the firm has been appointed by the court to represent a person, does a law firm violate Rule of Professional Conduct 6.2 if it contracts with another lawyer, not a member or associate of the law firm, to provide that representation?

SUMMARY:
The law firm does not violate Rule of Professional Conduct 6.2 merely by contracting with another lawyer to provide the appointed representation. However, the appointed lawyer should ensure that any necessary steps are taken to substitute counsel in the matter with the court's permission, with proper notice to the client.

OPINION:
Rule of Professional Conduct 6.2 imposes an ethical duty upon a lawyer to "not seek to avoid appointment by a tribunal to represent a person except for good cause." The Comment to Rule 6.2 adds that an "individual lawyer fulfills this responsibility by accepting a fair share of unpopular matters or indigent or unpopular clients."

As a provider of professional services, a lawyer must put the interests of clients ahead of the lawyer's own financial interests and be prepared to make services available from time to time to persons who cannot otherwise afford them. The Comment to Rule 6.2 recognizes that it is a shared responsibility among lawyers to provide indigent services. It would be inappropriate, therefore, for one lawyer to attempt to avoid appointed service in a manner that unfairly increased the burden imposed upon another lawyer.

A lawyer appointed by the court to represent a client, however, may believe that the client would be better served by referral of the matter to another lawyer with more experience or more time to devote to the cause. The lawyer should notify client that the substitution of counsel is being sought. If the lawyer wishes to refer the appointed client to another lawyer and to compensate the second lawyer for undertaking the representation in his or her stead, the purposes of Rule 6.2 are fulfilled. The client receives the appointed legal representation and the second lawyer, who actually handles the matter, does not bear an unfair share of the economic burden.

There is, therefore, no inherent ethical bar to the contractual arrangement proposed. However, when an appointed client is properly referred to another lawyer, the lawyer originally appointed should ensure that all necessary court approval is obtained for the substitution of counsel in the matter.