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 lawyer's fee agreement provide for the lawyer's hourly rate to be paid for time later spent testifying as a fact witness about the representation?
Yes. A lawyer may charge a reasonable hourly rate for future time spent responding to discovery or testifying as a fact witness about the representation, and so may include such a provision in the eng…
Can a lawyer charge a payee to recover the stop-payment and reissuance costs for a trust-account check that was never cashed?
Yes. A lawyer may charge a check recipient an amount covering the administrative cost of resolving an uncashed trust-account check (such as stop-payment and postage fees) if the amount is not unreason…
Can a lawyer sell or advertise for sale a fee judgment against a former client, and what confidentiality limits apply?
Yes. A lawyer may sell a fee judgment against a former client and advertise it for sale, but may not disclose information related to the representation when doing so, because post-judgment sale to a t…
When a prior law firm asserts a charging lien on a settlement, how much must successor counsel hold in trust, and does Rule 1.5(e) fee-sharing apply?
Successor counsel must hold in trust an amount equal to the prior firm's charging-lien claim until the dispute is resolved, unless the claim is frivolous under applicable law. The matter is governed b…
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…
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…
If a lawyer signs a mediation agreement promising to pay the client's share of the mediator's fee, is the lawyer ethically bound to pay it?
Yes. Although counsel is not normally a guarantor of a client's debt to a mediator, a lawyer who signs an agreement promising to pay the mediator is bound; refusing without legal justification would l…
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 firm ask a foreclosure court for attorney fees based on a percentage of the debt when its actual contract with the client is a smaller flat fee?
The firm may apply for such fees, but if it petitions for more than the client is obligated to pay under the engagement, Rule 3.3 requires disclosing the contract terms to the court. The committee dec…
Must appointed defense counsel personally pay an investigator for work the indigent-defense commission refused to cover?
No. Where the lawyer incurred no contractual obligation, the Rules of Professional Conduct do not require appointed counsel to supplement what the Commission on Indigent Defense pays; In re Jackson ad…
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…
Can a lawyer apply a client's unearned retainer surplus left in trust on one matter to cover the client's unpaid fees on a different matter?
No. Unearned fees in a client trust account may be withdrawn only as fees are earned on the matter for which they were advanced or refunded to the client; a lawyer may not move them to offset an unpai…
At a real estate closing, can the buyer's lawyer who prepares the settlement statement charge the seller (a non-client) a 'payoff handling fee' for transmitting the mortgage payoff?
Yes. The buyer's lawyer may add a reasonable payoff handling fee to the seller's side of the settlement statement even with no attorney-client relationship with the seller, because Rule 1.5(a)'s reaso…
Can a lawyer add a surcharge when billing a client for the work of a contract attorney hired on a case-by-case basis?
It depends on how the work is billed. If the lawyer supervises and adopts the contract attorney's work as the lawyer's own under Rules 1.1 and 5.1, the work may be billed as a legal fee, subject only …
Can a law firm act as escrow agent for a developer client's real estate deals (for which the firm is not closing counsel) and hold large earnest-money deposits in a non-IOLTA interest-bearing account, and may it charge a percentage holding fee?
Yes. Because the large deposits will be held for months to two years and can earn income for the client exceeding the cost of securing it, they are not 'nominal or short-term,' so under Rule 412(d) th…
Can a lawyer use a trade-credit account processor to finance non-consumer clients' fees, and sell existing receivables to it, the way lawyers accept credit cards?
Yes to both, with informed client consent. The committee treated a trade-credit account processor like a credit-card arrangement (approved in Opinions 81-01 and 96-06): a lawyer may finance fees this …
When a pro se plaintiff's former lawyer claims a charging lien on the settlement, must defense counsel hold the disputed funds in trust even though neither claimant is her client?
Yes. The opinion concludes defense counsel may not pay all settlement proceeds to the pro se plaintiff; under Rule 1.15(e) she must keep the disputed portion separate in trust until the lien dispute i…
Can a closing firm move marked-up recording fees into a non-trust 'Recording Account' before disbursement, and keep the overcharge as profit?
Until the funds are disbursed they remain client funds and must stay in the trust account; a 'Recording Account' holding only the firm's own money is fine and the firm may tender a trust check directl…
When co-counsel agree to split a contingent fee and one lawyer later leaves the case, can the fee still be divided 50/50, or must it track each lawyer's hours?
It depends on when the split was agreed. Under former Rule 1.5(e), an equal split needs the client's written agreement to joint responsibility; absent that, the split is in proportion to services perf…
Can a lawyer hold a client's alimony checks to collect unpaid process-server costs the client incurred during the case?
The lawyer may assert an equitable charging lien and hold only the disputed amount until the dispute is resolved, but the opinion warns the approach is risky here because the checks are payable to the…
Does a lawyer have to report another lawyer for suspected double-billing, and can the lawyer warn the suspected biller's client who is also her firm's client?
No. A mere suspicion of double-billing is not the actual knowledge Rule 8.3 requires, so no report is mandatory, even if the other lawyer brags about billing 15 hours; and Rule 4.2 does not bar contac…
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 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 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…
When a client fires one of two lawyers who agreed to split a fee and then objects to paying the discharged lawyer, can the other lawyer honor the agreed split, and what should happen to the disputed money?
The committee concluded that, absent the client's genuine written agreement to joint responsibility, a fee division under Rule 1.5(e) must be proportional to each lawyer's services; merely sending the…
Can a lawyer hold a former client's file, including research and meeting notes, until an unpaid bill is paid?
Not if it would prejudice the client. The committee concluded that under Rule 1.16(d) an attorney may not withhold a former client's file over an unpaid invoice where doing so would substantially and …
Can a lawyer in a civil case pay a fact witness the expense money another lawyer promised her for testifying in an earlier, concluded criminal case?
No. The committee concluded that paying a fact witness for testimony in a concluded criminal case is the payment of an antecedent debt unrelated to the present civil litigation, which is improper unde…
When a contingency-fee client fires the lawyer, can the lawyer hold the file until paid and bill hourly for the work done, including travel?
The committee concluded the lawyer should not withhold the file but should promptly deliver it to the client, because the retaining-lien factors recognized in South Carolina case law do not favor a li…
When a relative pays a lawyer's flat fee for a client who then fires the lawyer and demands a refund, who gets the unearned portion, the client or the relative who paid?
The committee concluded the lawyer must not unilaterally decide whether the client or the third-party payor is entitled to the unearned fee; because both may have a claim (depending on whether the pay…
Can a South Carolina lawyer put a mandatory arbitration clause in a fee agreement with a client?
The committee found no hard South Carolina rule and noted other states are split; it concluded the preferable course is to reference the Bar's Resolution of Fee Disputes Board rather than a mandatory …
Can a closing attorney represent a buyer when the seller or lender will pay the buyer's fees only if their own attorney is used?
The committee concluded the attorney has no duty to ask the seller or lender to drop the condition (so long as the attorney did not pay for the referral through reduced fees or otherwise), but if the …
When a lawyer leaves a firm and agrees to split fees with the old firm without telling the client, can the lawyer pay the old firm over the client's objection?
Rule 1.5(e) requires telling the client about a fee split that is not in proportion to the work performed. Because the client was not informed and objects, the committee advised the lawyer to hold the…
Can a lawyer pass the credit card company's service fee on to clients who pay fees or retainers by credit card, and does it matter if the retainer is nonrefundable?
The committee concluded a lawyer may charge clients the actual credit-card service fee so long as the total fee is reasonable under Rule 1.5(a), the lawyer fully discloses the charges before billing t…
Can a South Carolina law firm pay paralegals a bonus calculated as a percentage of the amount each paralegal billed to clients?
The committee concluded a firm may pay paralegals a bonus based on amounts billed to clients as a permitted profit-sharing arrangement under Rule 5.4(a)(3), so long as the amounts billed remain reason…
Can a South Carolina lawyer let a real estate seller pay the lawyer's fee for buyers who use the lawyer's firm to close, and recommend that arrangement to developer clients?
The committee concluded the seller may pay the lawyer's fee if the lawyer satisfies Rule 1.8(f) (client consent after consultation, no interference with independent judgment, confidentiality), avoids …
Can a South Carolina lawyer give new residents a discount coupon for legal fees through a Welcome Wagon packet and follow up by letter if they do not respond?
The committee concluded a lawyer may offer a discount coupon for legal services so long as it is not false or misleading, but a follow-up letter to a non-responding recipient has the potential to viol…
Can a South Carolina lawyer collect a fee in a domestic case by suing on a note and foreclosing a mortgage given as security for the fee?
The committee concluded there is no general ethical bar to collecting a fee by suing on a note or foreclosing a mortgage given as security, but a lawyer may not take a security interest in property wh…
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?
The committee concluded a lawyer with no attorney-client relationship to the judge and no role in his defense is not barred from establishing and serving as trustee of his legal defense fund; Rule 3.5…
Can a South Carolina lawyer hire an independent or freelance paralegal service and bill clients for its work?
The committee concluded a lawyer may employ an independent paralegal assistance service, including independent contractors, as long as the lawyer adequately supervises the work and remains responsible…
Can a South Carolina law firm have clients pre-authorize charges to their credit cards for legal fees?
The committee concluded a credit card pre-authorization policy is not prohibited by the Rules, subject to Rule 1.5(b)'s requirement to communicate the basis or rate of the fee and Rule 1.5(a)'s requir…
Can a South Carolina lawyer who is also a licensed real estate broker collect both a commission and a legal fee in the same transaction?
The committee concluded a lawyer probably may not act as broker for one party and lawyer for the other, but may serve the same party as both broker and lawyer, and take both a commission and a legal f…
Can a lawyer bill a client at an hourly rate for a secretary or file clerk's time just because the staffer earned a weekend paralegal certificate?
The committee concluded a lawyer may bill an agreed hourly rate for support-staff time if the client agrees in advance and the fee is not illegal, unconscionable, or misrepresentative; the lawyer must…
Can a lawyer join a barter exchange that takes a 10% commission when the lawyer spends the credits earned from legal fees?
The committee concluded the arrangement clearly violates Rule 5.4's bar on sharing legal fees with a non-lawyer and Rule 7.2(c)'s bar on paying a non-lawyer a commission for channeling work, because t…
When a successor lawyer settles a workers' comp case, what does she owe the discharged prior lawyer who had a contingency agreement and a fee claim?
The committee concluded the successor must hold the settlement funds, notify the prior lawyer, and deliver what he is owed under Rule 1.15 if he has a lien or fee interest, and must disclose the prior…
Can a South Carolina lawyer use a collection agency, report a client to a credit bureau, or run a credit check to handle unpaid legal fees?
The committee concluded a lawyer may use a collection agency for past-due fees and may run a credit check if the client's status is not revealed, but should not report a non-paying client to a credit …
Can a lawyer use a former client's confidential information to fight discharge of unpaid fees in the client's bankruptcy?
The committee concluded the lawyer may use public-record information and, under Rule 1.6(b)(2), confidential information obtained during the representation to establish a claim for unpaid fees in bank…
Can a lawyer take a contingency fee on the whole recovery and also a percentage of the subrogated insurer's share?
The committee concluded, following the South Carolina Supreme Court's decision in In re Jones, that a lawyer may not take both a contingency fee on the entire recovery and a percentage fee of the subr…
Can a lawyer withhold a former criminal client's file under a retaining lien until the client pays a copying fee?
The committee concluded the attorney may not withhold the file on these facts, because even where a retaining lien exists the lawyer should ordinarily forego it when withholding would prejudice the cl…
Can a lawyer charge a contingent fee to non-spouse parties pulled into a divorce case over whether titled property is marital?
The committee concluded that a contingent fee was permissible, because the parents' claim, that property titled in their name was non-marital, did not seek the divorce, alimony, support, or property s…
If a client fires the lawyer early, does the lawyer have to refund the unused part of a non-refundable retainer?
The committee concluded that if a non-refundable retainer is reasonable, the attorney may keep the unused portion after the representation ends, because Rule 1.16(d) permits retaining a reasonable non…
If a court-ordered attorney's fee award is reversed on appeal, must the lawyer who already received and applied it to the client's bill refund it?
The committee concluded the attorney need not repay either the opposing party or the client; once the client directed the voluntarily paid funds to satisfy her fee contract they became the attorney's …
Can a law firm agree to advance all collection costs for a lending-institution client and absorb them out of its percentage fee?
The committee concluded that paying costs out of the fee rather than being reimbursed would give the firm a prohibited financial interest in the cases; reworded so the firm advances costs and the clie…
Can a lawyer take a contingent fee to collect a property-division award that was already set in a final divorce decree?
The committee concluded a contingent fee is appropriate here because the fee is not contingent on securing a divorce or on the amount of the property settlement, both already fixed by the decree; only…
When a lawyer properly represents both an injured plaintiff and the plaintiff's health insurer claiming subrogation, can the lawyer collect a fee from both?
The committee concluded that where dual representation of the plaintiff and the subrogated health insurer is itself permitted (under Opinion 91-25's conditions), there is no prohibition on collecting …
Can a lawyer donate legal services to be auctioned at a charity fundraiser?
The committee concluded that donating legal services for a charity auction does not violate the Rules, provided the lawyer makes express qualifications: defining the nature and scope of the donated se…
Can a lawyer advertise a 'Workers Compensation Legal Clinic' offering free assistance, and is that misleading?
The committee concluded that 'Workers Compensation Legal Clinic' is an improper trade name under Rules 7.2 and 7.5 because it implies a connection with the Workers' Compensation Commission and the ad …
Can a law firm's partnership agreement reduce or eliminate a departing partner's share of accounts receivable?
The committee concluded that a partnership amendment denying withdrawal compensation applied equally to all departing partners, regardless of whether they keep practicing, does not appear to violate R…
If an associated co-counsel in a contingency case is court-ordered to withdraw, can he still recover a share of the fee, and how is it measured?
The committee concluded that a co-counsel who worked on a contingency case without disqualification but was later ordered by the court to withdraw, through no fault of his own, may recover a reasonabl…
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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.