South Carolina Bar Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the South Carolina Bar, with full citations and source links on every page.
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Can a personal-injury lawyer refer clients to a pre-settlement litigation-funding company owned by the lawyer's spouse?
Rarely. Only in unusual circumstances where the lawyer's finances are not significantly intertwined with the spouse's may a lawyer refer clients to a spouse's litigation-funding business; if the lawye…
A lawyer drafted wills for a married couple years ago; now the husband wants new documents disinheriting the wife, who has dementia. Is that a Rule 1.9 conflict?
No, on these facts. Drafting the husband's new documents is not 'substantially related' to the prior joint representation, requires no confidential information from it, and disinheriting a non-spouse-…
Can an insurance-defense lawyer paid a flat fee put his own money toward a settlement to close the gap and resolve the case faster?
No. The lawyer may not contribute part of his fee directly to a settlement, because that would create a prohibited personal financial interest in the client's case. He may instead offer to reduce his …
Can a lawyer already representing a subcontractor against a contractor also represent the homeowners suing that same contractor, when the contractor may not have enough assets to pay both?
Yes, if the lawyer works through Rule 1.7. There is no direct adversity, but the contractor's possibly insufficient assets may create a material-limitation conflict under Rule 1.7(a)(2); if so, the la…
Can a lawyer use a third-party financing company to help clients borrow money to pay legal fees, and do the fees the lawyer pays the company count as sharing fees with a non-lawyer?
Yes. A lawyer may associate with a third-party financing broker that loans clients money to pay fees, and the reasonable fees the lawyer pays the broker are not prohibited fee-sharing because they are…
When a lawyer works for a state enforcement agency, can the same office both prosecute a complaint and advise the agency panel that decides it, and who decides whether to appeal?
An agency lawyer who was substantively involved in investigating a complaint should not later serve as advice counsel to the panel adjudicating it. The decision whether to seek reconsideration or appe…
Can a lawyer let a chiropractor pay part of the lawyer's advertising costs in exchange for client referrals?
Yes. A non-lawyer such as a chiropractor may fund a lawyer's advertising in exchange for referrals, but the arrangement creates a Rule 1.7 conflict that requires the lawyer to disclose the relationshi…
Can a lawyer who is also a licensed insurance agent sell auto insurance for carriers that the lawyer's firm may file claims against?
Yes, provided the lawyer does not perform legal work as an insurance agent and does not represent clients against any carrier where that agency relationship would materially limit the representation, …
If a spouse and his father paid the legal fees for a client's earlier case, can the lawyer later represent that client in a divorce against the spouse?
Yes. Paying another person's legal fees does not, by itself, make the payer a client or prospective client, so a later representation adverse to the payer is not a conflict as long as the prior paymen…
Can a lawyer take cases through an attorney-matching service that pays part of the fee but forbids the lawyer from telling the client what the service paid?
No. Rule 1.8(f) bars the arrangement, because the service's contract prohibits the lawyer from disclosing what it paid, so the lawyer cannot obtain the client's informed consent to the third-party pay…
Can a lawyer represent clients against the agency where the lawyer's spouse used to work as agency counsel, when the spouse has left and they practice in different firms?
Yes. A lawyer may represent or serve as guardian for clients adverse to the Department of Social Services even though the lawyer's spouse formerly litigated those cases for DSS; Rule 1.8(k) does not a…
Can a furloughed government lawyer defend her own agency against other employees' furlough complaints, and may she do so if she is also pursuing her own furlough complaint?
She may defend the agency from furlough complaints if she reasonably believes she can provide competent and diligent representation under Rule 1.7(b)(1), even though her own furlough creates a waivabl…
When a nonprofit pays into a lawyer's trust account to fund a client's representation, who owns and controls the money, and what must the lawyer tell the client?
The payor and client must sort out ownership between themselves; the lawyer must not arbitrate disputed funds. The lawyer decides how to apply the funds to the matter and cannot let the third-party pa…
If a lawyer holds a mortgage on the property in dispute to secure unpaid fees, does advising the client on a settlement that would make that mortgage more valuable create a conflict of interest?
Not automatically. A mortgage securing the fee is permitted if Rules 1.8 and 1.5 are met; a settlement decision that affects the lawyer's fee does not create a conflict unless the lawyer reasonably be…
May a part-time county attorney represent criminal defendants in the same county, where the sheriff's office officers investigate those cases?
Only if he gives the County Sheriff's Office no legal advice on criminal matters. If the county attorney provides any criminal-law advice to the sheriff's office, representing criminal defendants in t…
When a lawyer is a pro se plaintiff, does Rule 4.2 bar him from contacting the opposing party or its insurer directly, and can he have his non-lawyer spouse make the contact instead?
Rule 4.2 applies to a lawyer representing himself pro se, so he may not directly contact a represented opposing party (here, the club) without its counsel's permission; if the insurer is unrepresented…
May a lawyer who is a partner in one law firm also become a partner or 'of counsel' at a second firm while keeping the first partnership?
Yes, with caveats. A lawyer may practice in or be 'of counsel' to a second firm, but the two firms are treated as a single firm for conflict-of-interest and imputed-disqualification purposes, the lawy…
At a real estate closing, may a lawyer tell the borrower or lender that an appraisal-rights waiver attached to the mortgage is potentially unenforceable because it is not on the signature page?
If the lawyer represents only the borrower, the lawyer may disclose the potentially defective waiver to the borrower; whether the lawyer must disclose is a standard-of-care question outside the commit…
Is it a conflict under Rule 1.9 for a lawyer or firm that handled a buyer's real estate closing to later represent a homeowners association enforcing covenants against that buyer?
No. Without more, conducting a residential closing is not substantially related to a later HOA action to enforce covenants or restrictions against the buyer, so Rule 1.9 does not bar the representatio…
May a lawyer limit representation to the collaborative law process, where the lawyer must withdraw if the case fails and litigation begins, and does that withdrawal provision create a non-consentable conflict?
Yes. A lawyer may limit the scope of representation to the collaborative law process with the client's informed written consent. The withdrawal-on-failure provision creates a potential conflict under …
Can a lawyer who served as a child's guardian ad litem in an abuse and neglect case later represent the custodial parent in an action to enforce or modify child support?
No. A lawyer who served as guardian ad litem for the children should not later represent the custodial parent in a child support enforcement or modification action; the child is treated as a former cl…
May a lawyer keep representing a client in a probate appeal while pursuing the lawyer's own personal-injury claim against the client's incarcerated former spouse, and what happens if the client ends the representation?
With the client's informed consent confirmed in writing, the lawyer may continue a limited representation in the probate appeal under Rule 1.2, because the lawyer's and client's interests are aligned …
In a standard residential real estate closing where the borrower retains the lawyer, does the lawyer also represent the lender, and does following the lender's closing instructions create an attorney-client relationship with the lender?
No. Absent additional facts, a lawyer chosen and retained by the borrower does not represent the lender, and merely following the lender's closing instructions does not create an attorney-client relat…
May a lawyer keep practicing in city court when his firm's senior partner is the mayor who sits on the council that appoints the city court judges?
Yes. The Rules of Professional Conduct do not prohibit the lawyer from practicing in city court; ordinary advocacy is not barred and the conflict rules (1.7 through 1.11) do not apply on these facts. …
When several public defenders from the same office represent co-defendants with inconsistent defenses, must each get the client's informed consent in writing under Rule 1.7?
No, if the office satisfies the screening and autonomy exceptions in Rule 1.10(e); when those are met the attorneys need not turn to Rule 1.7 or obtain written informed consent, even if a co-defendant…
A lawyer drafts a custody-modification agreement for two divorced parents; before filing, one parent revokes consent while the other (who paid) insists on filing. May the lawyer file the pleadings?
No. Whether the lawyer has a conflict depends on whether an attorney-client relationship formed with the paying party, but either way the lawyer should not file the pleadings: if both are clients ther…
May a South Carolina lawyer represent a client against an opposing party whose lawyer shares office space, a receptionist, and equipment with the lawyer?
It is not a per se violation, but on these facts (shared receptionist, lobby, conference rooms, fax and copy machines, thin walls) the arrangement carries a high risk of breaching confidentiality unde…
Can a lawyer who settled an injured passenger's insurance claim later represent the driver in a felony DUI prosecution arising from the same accident, after the former client's written waiver?
Yes. The driver's interests likely are not materially adverse to the former client's, since the former client opposes the prosecution; and even assuming adversity, Rule 1.9(a) lets the former client w…
Can a plaintiff's lawyer agree, as a condition of settlement, to personally indemnify the defendant and defense counsel against Medicare or Medicaid subrogation lien claims on the settlement proceeds?
No. A lawyer may not agree to serve as an indemnitor for the released parties against third-party lien claims on settlement proceeds. The demand creates a Rule 1.7 conflict between the lawyer and clie…
In a South Carolina abuse and neglect case, can one lawyer serve as the child's guardian ad litem, as counsel for the GAL, and also as the child's lawyer?
No. A lawyer may serve as both the child's guardian ad litem and counsel for the GAL (a self-representation parallel), but may not also represent the child. Representing the child while serving as GAL…
Can lawyers in a firm buy charged-off debts from a client, former client, or non-client, and can an LLC owned by the firm's lawyers hire the firm to collect those debts?
Yes to both, with limits. Rule 1.8(i) bars buying a debt only when it is the subject of litigation the lawyer is conducting for a client, so lawyers may purchase charged-off debts they never handled a…
Does a defense lawyer's personal relationship with a county sheriff disqualify her from representing defendants charged by that sheriff's office?
Not categorically. The committee concluded the lawyer may represent clients charged by the sheriff's office as long as the sheriff is not expected to testify in the case, the lawyer discloses the pers…
Can a private-practice lawyer hire a non-lawyer who works full time for the local prosecutor's office to moonlight on the firm's immigration cases?
Yes, subject to strict screening, confidentiality, and supervision. The committee held the arrangement carries confidentiality and conflict risks under Rule 5.3 but is not prohibited if the assistant …
Can a South Carolina lawyer who is also a licensed real estate agent and a mortgage broker act as mortgage broker, the buyer's real estate agent, and the closing attorney in the same transaction if the client consents in writing?
The committee advises against it. While the Rules do not impose a per se bar, a lawyer's belief that she can competently and diligently represent each affected client while also collecting agent and b…
Can a lawyer who represents only the seller conduct a mail-away residential closing in South Carolina when the buyer is unrepresented, and does a buyer's mortgage loan change the analysis?
Nothing in the Rules flatly prohibits a seller-only mail-away closing if the Opinion 05-16 conditions and the Rule 4.3 disclosures to the unrepresented buyer are met, but who the closing attorney repr…
A lawyer represents both a mother and her injured child; the mother (also the child's guardian ad litem) bars discovery of the at-fault grandmother's assets. What must the lawyer do?
The mother's instruction creates a conflict between her and the minor child the lawyer also represents. The opinion concludes that because the minor cannot consent and the mother's interest may be adv…
When a longtime client has dementia, can the firm represent his daughter in seeking to have her appointed his conservator and guardian ad litem?
The firm may take protective action for a client with diminished capacity under Rule 1.14. If the client's existing power of attorney makes the daughter his legal representative, the firm may represen…
Must a real estate closing lawyer get the lender's or mortgage broker's written informed consent to represent multiple parties, and can the lawyer use an advance consent?
Only if the lender or broker is actually a client. If a client-attorney relationship exists, the lawyer must obtain the lender's informed consent confirmed in writing to multiple representation (or no…
Can a lawyer for an injured servicemember sign the Army's agreement to protect the government's medical-cost recovery out of any personal injury settlement?
Signing the Army's agreement would create a Rule 1.7(a)(2) conflict where liability is questionable and coverage is limited, because the government's independent claim would lower the client's net rec…
Must a foreclosure lawyer get consent when a title search shows the property also has liens held by other clients the lawyer represents in separate foreclosures?
Yes. Foreclosing against lienholders the lawyer represents in other foreclosures is direct adversity between current clients under Rule 1.7(a), requiring each client's consent after consultation. Unde…
Can a former associate represent a client suing the lawyer's old firm over a matter the associate worked on while employed there?
No, not without consent. Because the associate advised the firm (her client under Rule 1.13) on the very dispute, representing the complaining party against the former firm in that same matter would v…
When an estate-planning client has become incapacitated and has a conservator, to whom may the lawyer release the client's file after being discharged?
On withdrawal under Rule 1.16, the lawyer must return the file within a reasonable time, but because the client (not the conservator) is the client, the lawyer must assess the client's capacity under …
Can a lawyer who also owns a title insurance agency advertise that affiliation on the law firm's website, letterhead, and business cards?
Yes, if the advertising complies with Rules 7.1 and 7.5. The current rules no longer bar listing an ancillary business, but the lawyer must observe the conflict rules (1.7 and 1.8) when the law practi…
If a criminal defense lawyer becomes a necessary witness, must the lawyer withdraw, can the lawyer still help with pretrial work, and can a partner take over the trial?
Rule 3.7 may require the lawyer to withdraw from trying the case, but the lawyer may still handle pretrial matters and preparation. A member of the same firm may serve as trial counsel, because Rule 3…
Can a firm that handled a client's home purchase later represent the homeowners' association in placing a lien on that same home for unpaid dues?
No, not without the former client's consent after consultation. The firm's earlier representation of the buyer at the home purchase is substantially related to filing a lien on that home, and the firm…
Can a real estate lawyer privately finance the purchase and construction of a home for a contractor client the lawyer regularly represents?
Yes, if the lawyer satisfies Rule 1.8(a): the transaction must be fair and reasonable, fully disclosed in writing the client can understand, the client must have a reasonable chance to consult indepen…
Can a former prosecutor work on a civil case against an institution they investigated as a public official, and can the new firm still take the case?
No, not without the government agency's consent: a former deputy solicitor who personally and substantially investigated a boys' home while prosecuting an abuse case is barred by Rule 1.11(a) from wor…
Can a South Carolina law office be staffed only by SC-licensed associates who report to partners not licensed in South Carolina?
Yes. A South Carolina lawyer may practice under the supervision of a partner not licensed in South Carolina, but the associate must comply fully with the South Carolina Rules; Rule 5.2's safe harbor d…
Can a lawyer run a law office and a separate non-law business the lawyer owns from the same office, sharing a receptionist and open-cubicle staff space?
Yes, a lawyer may run a law practice and a separately owned business from the same location, but the lawyer remains bound by the Rules of Professional Conduct; the opinion warns that a shared receptio…
Can a firm defend a workers' comp claim when one of its associates already helped the claimant plan the same claim, and would screening or consent cure it?
No. Where an associate had an ongoing personal relationship with the claimant and actively helped plan the claimant's strategy on the same matter, the resulting conflict is imputed to the whole firm u…
Can a lawyer who served as guardian ad litem in a child-custody case later represent one side in a new custody dispute over a sibling?
No. The new representation is substantially related to the lawyer's prior guardian ad litem role, so Rule 1.9 bars it, and the lawyer would also be a necessary witness, which Rule 3.7 prohibits.
Can a lawyer send a client to consult an opposing professional just to create a conflict and get that person disqualified from the case?
No. A lawyer may not advise a client to consult with another lawyer for the purpose of creating a conflict of interest. The committee viewed engineering a disqualification through a sham consultation …
Can a lawyer represent two divorce clients at once and use evidence learned from one client in the other's case?
Yes. The lawyer is not barred from representing both clients merely because crucial evidence came from one of them, as long as neither client objects to using the information, so there is no Rule 1.7 …
Can a lawyer prepare estate documents for donors referred by a nonprofit and be paid by the nonprofit a percentage of the donors' gifts?
The donor is the lawyer's client. The lawyer can take the work and be paid by the nonprofit only if the fee is not a percentage of the gift, is reasonable under Rule 1.5(a), and the lawyer discloses t…
Can a South Carolina lawyer who represents the lender close a real estate transaction using documents prepared by another South Carolina attorney?
Yes. The Rules of Professional Conduct do not prohibit it, but the opinion cautions the lawyer to watch for Rule 1.7 conflicts where the lawyer has a business relationship with the lender, and to ensu…
Does a one-hour consultation that never led to representation still create confidentiality duties that can disqualify the lawyer's firm years later?
It can. The confidentiality duty under Rule 1.6(a) may attach to a prospective client even if no representation forms. If confidences were shared, Rule 1.9(b) and Rule 1.10 can bar the lawyer's firm f…
Can a law firm accept a 2% 'brokerage fee' from a collection agency for referring small accounts the firm could not collect, when the client consents?
The committee concluded the brokerage fees are not unethical fee sharing per se, because the sharing comes from a lay agency's income rather than a lawyer paying for business under Rule 7.2(c); but th…
Can a law firm doing the title search in a real estate closing accept a share of the title insurance premium from the real estate company, on top of charging the client for the closing?
The committee concluded the arrangement does not violate Rule 5.4 and is permissible if the firm properly supervises the title work, charges no excessive or double fee under Rule 1.5, and fully disclo…
Can a lawyer who is being suspended or disbarred sell their law practice to another attorney under Rule 1.17?
The committee concluded a lawyer who has already been suspended or disbarred may not sell the practice, because a trustee steps in and the lawyer no longer has active clients to notify under Rule 1.17…
Can a military prosecutor try a defendant for whom the prosecutor once prepared a will and estate-planning documents in an unrelated matter?
The committee concluded yes: under Rule 1.9 the prior estate-planning work is not substantially related to the later criminal charges and the prosecutor learned no confidential information bearing on …
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Legal ethics opinions from the South Carolina Bar interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.