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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

II. COUNSELOR

2.1   Rule 2.1 Advisor

2.1:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 2.1
Background References: ABA Model Rule 2.1, Other Jurisdictions
Commentary:

2.1:101      Model Rule Comparison

South Carolina Rule 2.1 and its comments are identical to Model Rule 2.1.

2.1:102      Model Code Comparison

There was no counterpart to Rule 2.1 in the Code of Professional Responsibility.

2.1:200   Exercise of Independent Judgment

Primary SC References: SC Rule 2.1
Background References: ABA Model Rule 2.1, Other Jurisdictions
Commentary: ABA/BNA 31:701, ALI-LGL 151, Wolfram 4.3

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

2.1:300   Non-Legal Factors in Giving Advice

Primary SC References: SC Rule 2.1
Background References: ABA Model Rule 2.1, Other Jurisdictions
Commentary: ABA/BNA 31:701, ALI-LGL 151, Wolfram 4.3

Rule 2.1 expressly recognizes that the lawyer's role as advisor may exceed that of solely legal counselor. In rendering legal advice, it is permissible for a lawyer to refer to considerations, other than purely legal concerns, such as moral or economic factors, that may affect the client's situation.

2.2   Rule 2.2 Intermediary

2.2:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary:

2.2:101      Model Rule Comparison

South Carolina Rule 2.2 and its comments are identical to Model Rule 2.2.

2.2:102      Model Code Comparison

Rule 2.2 did not have an exact counterpart in the Code of Professional Responsibility.

2.2:200   Relationship of Intermediation to Joint Representation

Primary SC References: SC Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary: ABA/BNA 51:1501, ALI-LGL 153, Wolfram 8.7, 13.6

Rule 2.2 recognizes that a lawyer may at times best serve the interests of two clients by acting as an intermediary between them. The rule, however, does not necessarily expand the circumstances beyond those permitted under Rule 1.7 in which a lawyer may represent multiple parties in the same matter. Under Rule 2.2, the lawyer may act as intermediary only if each client consents after full disclosure of the advantages and risks of multiple representation, if the lawyer reasonably believes the matter can be resolved "on terms compatible with the clients' best interests," if there is little risk of prejudice to any client if the intermediation fails, and if the lawyer reasonably believes that the matter can be handled impartially and without "improper effect" on other duties to the clients. The rule makes clear that the lawyer must consult with each client as to any decisions and must withdraw from representing all of the clients if any client requests or if any of the conditions are no longer satisfied. Rule 2.2 (b) & (c).

2.2:300   Preconditions to Becoming an Intermediary

Primary SC References: SC Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary: ABA/BNA 51:1501, ALI-LGL 153, Wolfram 8.7, 13.6

Rule 2.2 permits a lawyer to act as an intermediary when any conflict between the interests of the clients remains a potential rather than actual conflict. In McNair v. Rainsford, 330 S.C. 332, 499 S.E.2d 488 (Ct. App. 1998), a seller of property brought suit against an attorney retained by the seller and purchaser to complete the paperwork for the transaction after the parties had reached agreement on their own about the terms of the transaction. After discussing the general principles set forth in Rules 1.7(b) and 2.2 regarding the propriety of representation of parties in business transactions, the court concluded that issues of fact existed as to whether the attorney violated the standard of care in his handling of the transactions.

2.2:400   Communication During Intermediation

Primary SC References: SC Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary: ABA/BNA 51:1501, ALI-LGL 153, Wolfram 8.7, 13.6

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

2.2:500   Consequences of a Failed Intermediation

Primary SC References: SC Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary: ABA/BNA 51:1501, ALI-LGL 153, Wolfram 8.7, 13.6

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

2.3   Rule 2.3 Evaluation for Use by Third Persons

2.3:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary:

2.3:101      Model Rule Comparison

South Carolina Rule 2.3 and its comments are identical to Model Rule 2.3.

2.3:102      Model Code Comparison

Model Rule 2.3 does not have a counterpart in the Code of Professional Responsibility.

2.3:200   Undertaking an Evaluation for a Client

Primary SC References: SC Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary: ABA/BNA 71:701, ALI-LGL 152, Wolfram 13.4

With the consent of the client, it may be appropriate for a lawyer to evaluate a matter for the benefit of a third-party. The example given in the comment to Rule 2.3 is an evaluation of the client's title to be provided to a prospective purchaser or lender dealing with the client. In that case, the lawyer may undertake responsibilities to the recipient of the evaluation. The lawyer, therefore, should perform the evaluation only if doing so is compatible with the lawyer's obligations to the client. Rule 2.3(a)(1). The client must be aware of the potentially conflicting obligations of the lawyer prior to giving consent to the undertaking. Any material limitations on the evaluation should be disclosed in the report.

2.3:300   Duty to Third Persons Who Rely on Lawyer's Opinion [see also 1.1:420]

Primary SC References: SC Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary: ABA/BNA 71:701, ALI-LGL 152, Wolfram 13.4.4

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

2.3:400   Confidentiality of an Evaluation

Primary SC References: SC Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary: ABA/BNA 71:701, ALI-LGL 152, Wolfram 13.4.3

A special rule governs information obtained in connection with the preparation by the lawyer of an evaluation for the use of a third-party in a matter affecting the client. The evaluation may be provided only with the client's consent after consultation. Rule 2.3(a). That consultation should include information regarding the type and extent of disclosures likely to be made in the evaluation. Rule 2.3(b) contemplates that disclosures of protected information will occur, providing that any information not required to be disclosed in connection with the evaluation remains protected by Rule 1.6. A reasonable inference is that Rule 1.6 does not prevent the disclosure of other information required to be disclosed in the evaluation report. Rule 2.3(b).

2.4   Rule 2.4 Lawyer Serving as a Third-Party Neutral

2.4:100   Comparative Analysis of SC Rule

Primary SC References:
Background References: ABA Model Rule 2.4, Other Jurisdictions
Commentary:

MR 2.4 was added in February 2002. The Reporter's explanation of the change reads as follows:

The role of third-party neutral is not unique to lawyers, but the Commission recognizes that lawyers are increasingly serving in these roles. Unlike nonlawyers who serve as neutrals, lawyers may experience unique ethical problems, for example, those arising from possible confusion about the nature of the lawyer's role. The Commission notes that there have been a number of attempts by various organizations to promulgate codes of ethics for neutrals (e.g., aspirational codes for arbitrators or mediators or court enacted rules governing court-sponsored mediators), but such codes do not typically address the special problems of lawyers. The Commission's proposed approach is designed to promote dispute resolution parties' understanding of the lawyer-neutral's role.

2.4:101      Model Rule Comparison

South Carolina has not adopted the new model rule.

2.4:200   Definition of "Third-Party Neutral"

Primary SC References:
Background References: ABA Model Rule 2.4, Other Jurisdictions
Commentary:

South Carolina has not adopted the new model rule.

2.4:300   Duty to Inform Parties of Nature of Lawyer's Role

Primary SC References:
Background References: ABA Model Rule 2.4, Other Jurisdictions
Commentary:

South Carolina has not adopted the new model rule.