South Carolina Legal Ethics Tutorial
The practice of law is both a privilege and a profession, and like all professions, it is governed by rules and standards that guide the conduct and actions of those in its ranks. In South Carolina, the ethical and professional responsibilities of lawyers are primarily set forth in the Rules of Professional Conduct and the General Comments found in the Appendix of the South Carolina Appellate Court Rules.
The Rules of Professional Conduct exist to: [a]dopt [provisions] containing the general requirements and aspirations of all members of the Bar; the disciplinary proceedings and remedies available for violation of the Rules; and provisions designed specially to regulate the practice of law in areas where particular concerns pertinent to a particular practice may be involved." Once adopted, the Rules of Professional Conduct were "intended to be applied as well to disciplinary matters . . . as to civil actions for damages based on alleged violations of the disciplinary rules . "
Based on their commentaries, the South Carolina Rules of Professional Conduct "are intended to be construed so as to give effect to the purpose of these rules and to the comments under the Rules and to the purpose of the South Carolina Rules of Professional Conduct," which states that "[a] lawyer should be mindful that he or she bears personal responsibility and regulation of the Lawyer’s conduct as a lawyer, not only [his or her] obligations as a member of the bar."
Importantly, the Rules of Professional Conduct in South Carolina apply to lawyers who are "subject to the authority of the [South Carolina Supreme] Court, the disciplinary authority of the Supreme Court and the rules established by the Supreme Court and the Court’s opinions and orders addressing lawyer conduct and lawyer discipline."
As a result, lawyers in South Carolina are obligated to be familiar with the Rules of Professional Conduct, the General Comments, the opinion of the Court, and any orders issued by the Court regarding lawyer conduct and discipline.
Rules of Professional Conduct Overview
The South Carolina Rules of Professional Conduct are the rules governing the conduct of lawyers in the state. The Rules set forth the ethical standards required of members of the bar of South Carolina. The Rules apply to every member of the South Carolina Bar, including those who are licensed to practice before or appearing before any court or administrative agency of the state; however, they do not apply to members of the bar of other states who are rendering services in South Carolina on a temporary basis.
The South Carolina Rules of Professional Conduct contain a "Preamble" and four "Titles." The Preamble is designed to provide context for the Rules. It contains valuable information about their purpose and functions.
Title I of the South Carolina Rules of Professional Conduct is the "Terminology" subsection. The Terminology subsection contains definitions of terms used throughout the Rules. For example, "consult" under Rule 1.2, and "disclose" under Rule 1.6. The purpose of the Terminology subsection is to avoid an attorney’s need (in all but the most exceptional of circumstances) to go outside the Rules for the definition of a word or term.
Titles II and III of the South Carolina Rules of Professional Conduct contain the heart of the Rules. Title II contains Rule 1.0 to Rule 5.6. These are the "Rules of Client-Lawyer Relationship; Appointments, Client’s Decisions, Fees and Property; Funds and Other Property of Client."
Title III covers the "Advocacy, Transactions with Persons Other than Clients, Impartiality and Decorum of the Tribunal, Confidentiality of Information, Law Firms and Associations; Public Service, Communication with Persons Other Than Clients, Media, Special Responsibilities of a Lawyer, Firm, or Prosecutor, Sales, Purchases, Loans, Gifts, Borrowing from Clients, and Similar Transactions, Partnership and Professional Corporation Agreements, Sale of Practice, Former Government Employees, Client-Lawyer Relationship Prior to Representation in a Matter, Organization as a Client, Media, Imputed Disqualification, A Lawyer’s Duties and Responsibilities, Scope of Representation, Limitations on Representation, Declining or Terminating Representation, Safekeeping Property, Communication with Clients, Fees, Terminating Representation, Withdrawal from Representation, Client Trust Account, Cooperative Communication and Resolution of Disputes, Trial Publicity, Trial Publicity.
"Trial Publicity Rules" is the term which refers to the "In The Matter of Media, Inc. v. King." In that matter the Supreme Court of South Carolina remanded the "Laws of Mediation" to the Bar for further study and formulation. The court set out trial publicity rules which must be complied with by attorneys appearing in West Carolina Courts. The bottom line is that there is now meaning for "Trial Publicity" and it is now meant to refer to the "In the Matter of Frequency of Criminal and Civil Trial Publicity" decision.
The South Carolina Rules of Professional Conduct categorizes the rules into four distinct areas. The first, the Terminology Section, is helpful in defining the rules and providing an overview of the purpose of the Rules of Professional Responsibility. The bulk of the Rules, formed by Titles II and III, cover the areas of client confidentiality, what a law office needs to do to comply with the rules, and general procedures guidelines for lawyers.
Core Requirements for a Lawyer
At the heart of the South Carolina Rules of Professional Conduct is the need for attorneys to carefully consider the impact of emphasizing a client’s legal and ethical duties over their own or other competing interests. Failure to do so can lead to disciplinary action under Rule 8.4 of the Rules and to professional discipline for violating the Rules. The Rules impose a minimum standard of professional conduct for attorneys through rules designed to: Honor clients Maintain client confidentiality Take only those matters that can be handled competently Communicate with clients Manage funds ethically A few of these rules will be discussed here. Honoring Clients Most of the time, clients come to attorneys seeking help with a problem in which the attorneys have expertise. Lawyers build long-term client relationships when they treat clients with dignity and respect, while providing candid legal and business advice.
Client Confidentiality The most sacred relationship under the law is attorney-client. Rule 1.6 strictly prohibits both the discussion of confidential information and the retelling of confidential information through quotes or paraphrases. Client confidentiality encompasses more than just what is said to the lawyer. It includes all client information, as well as information gained through observation and eavesdropping.
Only Handle Those Matters You Can Handle Competently Attorneys are strictly limited to areas in which they are competent. The South Carolina Rules of Professional Conduct obligate lawyers only to accept those matters which can be handled competently and diligently (Rules 1.1 and 1.3).
Resolving Conflicts of Interest
The South Carolina Rules of Professional Conduct have specific provisions related to handling conflicts of interest. Rule 1.7, concerning conflict of interest with current clients, states that a lawyer shall not represent a client if the representation involves concurrent conflicts of interest, unless the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client, the representation is not prohibited by law, the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal, and each affected client gives informed consent, confirmed in writing.
When it comes to a conflict between current clients and former clients, Rule 1.9 governs. A lawyer who has formerly represented a client in a matter must not: (1) use information relating to the representation to the disadvantage of the former client, except as provided by Rule 1.6 or when the information has become generally known; or (2) reveal information relating to the representation of the former client, except as Rule 1.6 or other law would permit.
As outlined in Rule 1.9(a)(1)-(3), for current conflicts, the attorney should only proceed with the representation if he or she:
When talking about former conflicts, the attorney cannot do any of the following, according to Rule 1.9(a):
Rules 1.10 and 1.11 focus on addressing the role that a firm, or insiders of a firm, play when an attorney leaving one firm joins another firm. If it is a situation involving a former employee going to a new employee, Rule 1.10 turns over the conflicts of interest to the new firm. The firm will be vicariously prohibited from the new employee’s conduct. Rule 1.11, however, contains language that specifically addresses former government employees. It prohibits a lawyer who has formerly served as a public officer or employee of the government from later representing a client on a matter that is "same or substantially related to a matter in which the lawyer participated personally and substantially as a public officer or employee."
Preserving Client Secrets and Confidentiality
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized to carry out the representation or the disclosure is permitted by paragraph (b). Paragraph (b) permits a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
- (1) to prevent reasonably certain death or substantial bodily harm;
- (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used the lawyer’s services;
- (3) to prevent, mitigate or rectify substantial injury to the financial interest or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
- (4) to secure legal advice about the lawyer’s compliance with these Rules;
- (5) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct arising out of the lawyer’s representation of the client; or
- (6) to comply with these Rules, a court order or other law .
In the case of a disclosure protected by the attorney-client privilege under South Carolina law, a lawyer may disclose information relating to the representation to the extent allowed by the South Carolina Rules of Civil Procedure, the South Carolina Rules of Evidence, Code of Professional Responsibility, or by the Federal Rules of Evidence. A lawyer who receives a subpoena for a client’s confidential information should consult with the client to determine if the client consents to the disclosure of the information.
The Rules of Professional Conduct are intended to protect the client. The Comments to the rules also explain that "the duty of confidentiality is an independent duty and applies regardless of the client’s intention or knowledge."
Enforcement and Disciplinary Measures
Enforcement of the rules is vested first in an attorney’s own conscience. Failing that, the South Carolina Bar is delegated with taking complaints concerning attorney misconduct for preliminary investigation. This initial investigation is accomplished through the Ethics Advisory Committee, who has various subcommittees to assist in investigating and making recommendations to The Office of Disciplinary Counsel as to any possible violations of the ethics rules by attorneys licensed to practice law in South Carolina. The Office of Disciplinary Counsel can be thought of as the prosecutor or guardian of our profession. The Office of Disciplinary Counsel is charged with prosecuting attorney licensees for ethical misconduct, which occurs in the course of their representing clients, as well as non-client ethical and criminal misconduct which impacts their ability to practice law; such as conviction of a felony, getting arrested and even appearing to have misappropriated client funds by closing out a trust account pursuant to a recent opinion by the Supreme Court of South Carolina.
The Consensual Disposition Guidelines are the internal guidelines for the Office of Disciplinary Counsel and provide when the Office of Disciplinary Counsel will employ its discretion to offer a letter of caution or admonition to an attorney which states the conduct or activity at issue did not warrant formal charges or discipline. The Guidelines are non-binding, however they do provide insight into the discretion the Office of Disciplinary Counsel employs in prosecuting cases against attorneys.
After a full investigation is conducted by the Office of Disciplinary Counsel, if there is sufficient evidence to prove ethical misconduct, then formal charges are issued against an attorney. Formal charges are not a criminal indictment, which persons charged with a crime must suffer through; however, it is a formal charge alleging an ethics violation of the rules of professional conduct. The charges are filed against the attorney only after the sufficient evidence is reviewed by a Senior Assistant Deputy Disciplinary Counsel and approved in writing.
Formal charges can result in public or private reprimand, probation, suspension or revocation of law license. In reviewing the history of lawyers subjected to disciplinary action, we recently reviewed sanctions imposed as of March 15, 2023. There have been sixteen (16) public reprimands, only two (2) private reprimands, thirty eight (38) suspensions and seventeen (17) revocations for misappropriation of client funds over the last four (4) years.
Recent Amendments and Changes
Recent updates and developments in the South Carolina Rules of Professional Conduct, or "SCRPC," can be tracked back to January 1, 2007 when major changes were adopted. The American Bar Association revised the national Model Rules of Professional Conduct in 2002 and 2003, among other things, following the 2002 Sarbanes-Oxley Act and the passing of Rule 503 of the Federal Rules of Evidence (2006). The amendments to the SCRPC are intended to assist practitioners in the state of South Carolina to remain current, and to prevent differences and inconsistencies from developing between the SCRPC and the Model Rules. Several of the newer updates from the Model Rules have been adopted in the SCRPC, but not all. The most significant change has been in the adoption of rules pertaining to "lawyer advertising" and "law firm names." The comments to the changes state that the law concerning the approval of "advertisements" is evolving in South Carolina. Internet ads fall under the new SCRPC Rule 7.2, which states: "unless expressly prohibited or limited by law or court order, a lawyer may advertise services through written, electronic or broadcast communication…affiliated with, or a part of, an established practice, institution or organization." The Supreme Court of South Carolina has issued a Commission on Lawyer Advertising ("COLA"), which will review communications submitted for review. An on-line application can be submitted to COLA, as well as by email or by submitting a paper copy. Each communication submitted can be reviewed at no cost. However, the SCRPC provides that "if COLA determines, in its discretion…that a communication submitted should be approved for general circulation, COLA shall notify the lawyer whose communication was submitted as well as the South Carolina Commission on Lawyer Conduct, the South Carolina Supreme Court and any other state bar association or lawyer associations of the State whose members might reasonably be expected to be recipients of the communication." In addition, South Carolina’s Public Disclosure System may be made available. A "law firm name" or a "lawyer name must not contain a nonlawyer’s name or trade name," except in the case of a legal clinic or other organization.
Attorney Resources
For further reading on the Rules of Professional Conduct, consider the following:
Seminars
The South Carolina Bar CLE Division offers a seminar on the Rules of Professional Conduct every year, as well as continuing education programs and distance learning opportunities throughout the year.
Publications
The West Group publishes a searchable database of South Carolina appellate cases and administrative codes , which can be found on Court and Agency Cases under the Resources tab. The ABA also publishes the Model Rules of Professional Conduct, which can be found on the ABA/BNA Lawyers’ Manual.
Professional Organizations
The South Carolina Bar maintains a website with various resources for attorneys, including CLE and practice and technology tools.