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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


South Carolina Legal Ethics

1.16   Rule 1.16 Declining or Terminating Representation

1.16:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 1.16. S .C. R. Civ. Proc. 11(b). S.C. App. Ct. R. 235.
Background References: ABA Model Rule 1.16, Other Jurisdictions
Commentary:

1.16:101      Model Rule Comparison

South Carolina Rule 1.16 and its comments are identical to Model Rule 1.16, with the following modifications:

Section (b)(4) of the rule has been modified to read as follows: "the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services or payment therefor . . .."

Section (d) has been modified by adding the following sentence at the end of the section:

"The lawyer may retain a reasonable nonrefundable retainer."

The comment on Optional Withdrawal has been modified by adding the following sentence at the end of the comment: "The South Carolina version of paragraph (b)(4) specifically recognizes that nonpayment for services may be a basis for withdrawal."

The comment on Assisting the Client Upon Withdrawal has been modified by adding the following sentence as a new second paragraph: "A lawyer may retain an otherwise proper nonrefundable retainer. See Comment to Rule 1.5."

1.16:102      Model Code Comparison

S.C. Rule 1.16 is based largely on DR 2-110 of the Code of Professional Responsibility.

1.16:200   Mandatory Withdrawal

Primary SC References: SC Rule 1.16(a)
Background References: ABA Model Rule 1.16(a), Other Jurisdictions
Commentary: ABA/BNA 31:1001, ALI-LGL 44, Wolfram 9.54

1.16:210      Discharge by Client

A lawyer must withdraw if discharged by the client. See In re Tillman, 319 S.C. 461, 462 S.E.2d 283 (1995); Rule 1.16(a)(3). But if the matter is pending before a tribunal, the lawyer must obtain court approval. See S.C. R. Civ. Proc. 11(b); S.C. App. Ct. R. 235. The court will strictly enforce the requirement that counsel of record obtain an order prior to withdrawal. See Culbertson v. Clemens, 322 S.C. 20, 471 S.E.2d 163 (1996); Ex Parte Strom, 334 S.C. 605, 514 S.E.2d 599 (Ct. App. 1999). For example, in In re Baldwin, 278 S.C. 292, 294 S.E.2d 790 (1982), the lawyer filed a notice of appeal but failed to perfect the appeal in a criminal case. The claim that the client had discharged the lawyer was no defense because a lawyer may withdraw from an appeal only upon order of the court. See also In re Acker, 308 S.C. 338, 417 S.E.2d 862 (1992); In re Blackmon, 309 S.C. 400, 424 S.E.2d 472 (1992) (misunderstanding as to whether lawyer represented client in later matters resulted in client not being represented at two hearings).

1.16:220      Incapacity of Lawyer

[The discussion of this topic has not yet been written.]

1.16:230      Withdrawal to Avoid Unlawful Conduct

The lawyer must withdraw (again with consent of the court if the matter is pending before a trial or appellate court) if continued representation would cause the lawyer to violate an ethical rule. See In re Brown, 317 S.C. 25, 450 S.E.2d 586 (1994) (lawyer failed to withdraw after conflict arose).

1.16:240      Legal Action for the Purpose of Harassing or Maliciously Injuring Any Person

[The discussion of this topic has not yet been written.]

1.16:300   Permissive Withdrawal

Primary SC References: SC Rule 1.16(b)
Background References: ABA Model Rule 1.16(b), Other Jurisdictions
Commentary: ABA/BNA 31:1101, ALI-LGL 44, Wolfram 9.5.3

1.16:310      Withdrawal to Undertake Adverse Representation

[The discussion of this topic has not yet been written.]

1.16:320      Circumstances Justifying Discretionary Withdrawal

The client has an expectation that a lawyer will not withdraw from a representation without some justification if the withdrawal will prejudice the interests of the client. A lawyer may withdraw (with court approval if the matter is pending before a trial or appellate court) if the withdrawal does not materially and adversely affect the interests of the client. Rule 1.16(b). When withdrawal would have a material adverse effect, the lawyer may withdraw if the client has previously used the lawyer to commit a crime or fraud or if the client persists in conduct reasonably believed by the lawyer to be fraudulent or criminal. Rule 1.16(b)(1) & (2). If the client's future illegal or fraudulent conduct would involve the assistance of the lawyer, the lawyer must withdraw, rather than violate Rule 1.2(d). See Rule 1.16(a).

A lawyer also may withdraw for other good cause, including but not limited to an insistence by the client on pursuing a repugnant or imprudent objective, Rule 1.16(b)(3); a failure by the client to perform commitments to the lawyer such as payment for services, Rule 1.16(b)(4)(if the lawyer gives reasonable warning of the intent to withdraw and an opportunity to perform); or the imposition of an unreasonable financial burden on the lawyer or conduct by the client that renders the representation unreasonably difficult. Rule 1.16(b)(5). See S.C. Bar Ethics Adv. Op. # 82-24 (if client deliberately disregards obligation to pay when required to do so under the agreement, despite having the ability to pay, lawyer may seek to withdraw from representation). If an attorney cannot locate a client, after pursuing all reasonable efforts,, the attorney can reasonably assume that the representation has been terminated. S.C. Bar Ethics Adv. Op. # 98-07. Withdrawal is permitted after the client objects to the lawyer's recommended settlement and stops communicating with the lawyer. S.C. Bar Ethics Adv. Op. # 96-05.

1.16:400   Order by Tribunal to Continue Representation

Primary SC References: SC Rule 1.16(c)
Background References: ABA Model Rule 1.16(c), Other Jurisdictions
Commentary: ABA/BNA 31:1101, ALI-LGL 44, Wolfram 9.5.1

In In re Anonymous Member of the Bar, 303 S.C. 306, 400 S.E.2d 483 (1991), the court attempted to clarify when the representation ends for a lawyer who is retained only for trial of a criminal matter. Upon a client's conviction, the trial lawyer must ensure the client is aware of appeal rights and is advised of the merits of any possible appeal. If the client wishes to appeal, the lawyer must also serve and file the Notice of Appeal. If the client claims indigency, the trial lawyer must request a determination of indigency. If the client is deemed to be indigent, the lawyer is relieved automatically unless the Office of Appellate Defense requests otherwise. If the client is not indigent, the lawyer must continue to represent the client until relieved by court order. A lawyer may be disciplined for violating these guidelines by refusing to initiate a criminal appeal until after the client pays an additional fee. In re Warder, 316 S.C. 249, 449 S.E.2d 489 (1994).

1.16:500   Mitigating Harm to Client Upon Withdrawal

Primary SC References: SC Rule 1.16(d)
Background References: ABA Model Rule 1.16(d), Other Jurisdictions
Commentary: ABA/BNA 31:1201, ALI-LGL 44, 45, Wolfram 9.5.1

Whenever a lawyer withdraws from representation, the lawyer must take reasonable steps to protect the client's interests. Rule 1.16(d). See In re Lynch, 318 S.C. 366, 458 S.E.2d 39 (1995) (lawyer failed to notify client that lawyer had stopped practicing in the state). See also In re Ring, 320 S.C. 249, 464 S.E.2d 328 (1995). Beyond taking steps necessary to comply with Rule 1.16(d), however, a discharged lawyer may not continue to perform legal work for the client after the discharge. In re Tillman, 319 S.C. 461, 462 S.E.2d 283 (1995).

1.16:600   Fees on Termination

Primary SC References: SC Rule 1.16(d)
Background References: ABA Model Rule 1.16(d), Other Jurisdictions
Commentary: ABA/BNA 31:701, 31:1001, 31:1101 , ALI-LGL 43, 52, Wolfram 9.5

1.16:610      Termination of Lawyer's Authority [see 1.2:270 and 1.16:500]

[The discussion of this topic has not yet been written.]