South Carolina Legal Ethics
II. COUNSELOR
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.
2.2:100 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).
2.4:100 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.