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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1   Rule 4.1 Truthfulness in Statements to Others

4.1:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 4.1 [see also 3.3:200. 8.4:400]
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary:

4.1:101      Model Rule Comparison

South Carolina Rule 4.1 and its comments are identical to Model Rule 4.1.

4.1:102      Model Code Comparison

Rule 4.1 is based in part on DR 7-102(A)(3) and 7-102(A)(5) of the Code of Professional Responsibility.

4.1:200   Truthfulness in Out-of-Court Statements

Primary SC References: SC Rule 4.1
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary: ABA/BNA 71:201, ALI-LGL 157

The obligation of a lawyer to act truthfully at all times and to avoid assisting in fraudulent conduct is reflected throughout the Rules of Professional Conduct. The Preamble to the Rules describes a lawyer's duty as negotiator to seek "a result advantageous to the client but consistent with requirements of honest dealing with others." Rule 4.1 provides that, in the course of a representation, a lawyer must not make a statement to a third-party of material fact or law known by the lawyer to be false. See In re Hendricks, 319 S.C. 465, 462 S.E.2d 286 (1995) (misrepresentation to title company to obtain title insurance); In re Davis, 279 S.C. 532, 309 S.E.2d 5 (1983) (lawyer misrepresented ownership of real estate); In re Delgado, 279 S.C. 293, 306 S.E.2d 591 (1983) (lawyer misrepresented identity of visitor and purpose of visit on jail logs); In re Christian, 267 S.C. 410, 228 S.E.2d 677 (1976) (lawyer certified title despite knowledge of prior lien to be released at closing or immediately following). See also Rule 3.3(a)(1) (applying similar obligation for statements made to a tribunal). In In re Craig, 269 S.C. 17, 235 S.E.2d 811 (1977), the court ruled that a lawyer acted improperly by agreeing to a settlement and then failing to consummate the agreement or inform opposing counsel of the reason for not doing so.

The comment to Rule 4.1 states that a lawyer "generally has no affirmative duty to inform an opposing party of relevant facts." However, in some situations "[m]isrepresentations can occur by failure to act." See In re Glickman, 271 S.C. 167, 246 S.E.2d 174 (1978) (lawyer failed to disclose liens known to exist, coupled with failure to discharge the prior mortgages immediately after closing). An ABA formal opinion concluded, for example, that a lawyer must, under Rule 4.1, disclose the death of a client to the adverse party in the first communication after the lawyer learns of the client's death. Failure to do so would be "tantamount to making a false statement of material fact." ABA Formal Op. # 95-397.

When a lawyer's nondisclosure is not equivalent to misrepresentation, the lawyer's duty of confidentiality under Rule 1.6 may prevent disclosure of information by the lawyer of material information. Another ABA opinion concludes, for example, that a lawyer is not required to reveal, and may not reveal without client consent, the fact that a limitations period has expired. ABA Formal Op. # 94-387.

4.1:300   Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

Primary SC References: SC Rule 4.1(b)
Background References: ABA Model Rule 4.1(b), Other Jurisdictions
Commentary: ABA/BNA 71:201, ALI-LGL 117A, 151, Wolfram 12.6, 13.3

Rule 4.1(b) requires a lawyer to disclose material facts necessary to avoid assisting in a criminal or fraudulent act by the client only if the disclosure would not violate Rule 1.6. If disclosure is not permitted, the lawyer's only action may be to withdraw from the representation under Rule 1.16.

4.2   Rule 4.2 Communication with Person Represented by Counsel

4.2:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary:

4.2:101      Model Rule Comparison

South Carolina Rule 4.2 and its comments follow Model Rule 4.2 with the following modifications and additions:

South Carolina has not adopted the ABA's 1995 amendment to Model Rule 4.2 which changed the word "party" to "person." The South Carolina comments, however, continue to make reference to "party" rather than "person." South Carolina has not adopted the amendments to the comments that the ABA approved as part of the amendment to Rule 4.2 in 1995. In particular, South Carolina has not adopted comment 2 stating that constitutionally permissible investigative activities by law enforcement officials are authorized by law within the meaning of the rule, comment 3 indicating that the rule applies to communications in transactional as well as adjudicative proceedings, and comment 5 providing that the lawyer must have knowledge that the person is represented by counsel.

4.2:102      Model Code Comparison

The counterpart of Model Rule 4.2 is DR 7-104(A)(1) of the Code of Professional Responsibility.

4.2:200   Communication with a Represented Person

Primary SC References: SC Rule 4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary: ABA/BNA 71:301, ALI-LGL 158-162, Wolfram 11.6.2

Rule 4.2 sets forth a clear rule that a lawyer should never communicate with a person represented by another lawyer regarding the subject matter of the representation, without the prior consent of the other lawyer, unless otherwise permitted to do so by law. The rule applies whenever a lawyer knows that a person has retained legal counsel. A 1995 formal ABA opinion concluded that the rule does not "imply a duty to inquire" as to whether a person is represented, but that a lawyer may not avoid Rule 4.2 "by closing her eyes to the obvious." ABA Formal Op. # 95-396. See also S.C. Bar Ethics Adv. Op. # 97-15 (attorney representing parent in family court action cannot talk with child of parent without notifying and gaining consent of guardian ad litem and guardian's counsel prior to communication because, although child is not technically represented by counsel, appointment of guardian ad litem and guardian's counsel satisfy "representation" requirement in Rule 4.2).

The rule applies only to contact by a lawyer and normally does not prohibit parties from talking directly to each other without the consent of their lawyers. An advisory opinion under similar language of old DR 7-104(A)(1), however, concluded that if a party also is a lawyer, contact with other parties should be made only with the consent of their counsel. S.C. Bar Ethics Adv. Op. # 86-10. See In re Vaught, 268 S.C. 530, 235 S.E.2d 115 (1977) (lawyer negotiated release of financial obligation from former client known to be represented by another lawyer). Also, a lawyer should not attempt to circumvent Rule 4.2 by using the client as an intermediary for impermissible communications with another represented party. See S.C. Bar Ethics Adv. Op. # 90-17.

The South Carolina Bar Ethics Advisory Committee has interpreted Rule 4.2 to permit a lawyer to give a second opinion to a client represented by another lawyer. See S.C. Bar Ethics Adv. Op. # 97-07. The prior disciplinary rule had been interpreted to preclude a lawyer from giving a "second opinion" about another lawyer's performance while the client was still represented by that lawyer, other than to suggest that the party discuss any concern with the first lawyer. S.C. Bar Ethics Adv. Op. # 85-26.

Rule 4.2 applies to communications with any represented person, regardless of whether that person is a party to a proceeding and regardless of who initiates the contact. ABA Formal Op. # 95-396. However, it is important to note that the rule prohibits only communications regarding the subject matter of the representation. Thus, when another person is represented only as to a particular matter, a lawyer may contact that person directly regarding a separate matter without consent of counsel. Rule 4.2, cmt. See also ABA Formal Op. # 95-396.

4.2:210      "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

If the other party is an organization such as a corporation, a question arises as to whom a lawyer may contact within the organization without consent of counsel. For example, a lawyer may wish to contact witnesses who are either current or former employees of the other party. If the individual has retained his or her own counsel, the consent of that lawyer is necessary. Rule 4.2, cmt. Otherwise, the comment to Rule 4.2 indicates that the rule prohibits contact, without consent of the organization's counsel, with "persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization."

ABA Formal Opinion # 91-359 inferred from the comment to Rule 4.2 that "communication with all other employees on 'the matter in representation' is permissible without consent," a view reaffirmed in ABA Formal Opinion # 95-396. Several South Carolina advisory opinions conclude that a lawyer may interview current employees of an adverse corporate party without the consent of corporate counsel if the employees are not members of the "control group" and have no authority to bind the employer with regard to the matter at issue. S.C. Bar Ethics Adv. Op. # 94-25 (interpreting Rule 4.2); S.C. Bar Ethics Adv. Op. # 88-21 (interpreting prior code). These opinions did not address communication with employees whose act or omission in the matter might be attributed to the organization, a category of employee covered by the comment to rule 4.2.

There is greater dispute regarding the extent of permitted contact with former employees. The most recent advisory opinion of the South Carolina Bar asserts that a lawyer "may communicate with former employees of a corporate opponent only if the statements or actions of the former employee cannot be imputed to the corporation and if the employee's conduct is not the subject of the representation." S.C. Bar Ethics Adv. Op. # 94-25; see also S.C. Bar Ethics Adv. Op. 92-31. An earlier South Carolina advisory opinion suggested that a lawyer may contact a former employee of a party that is adverse to a client represented by the lawyer, at least as long as the former employee had no decision making authority and had not obtained any relevant privileged information. See S.C. Bar Ethics Adv. Op. # 91-12. See John Freeman, Former Employees May be Interviewed Ex Parte (Usually), S.C. LAW., May-June 1998, at 10.

By contrast, the ABA interpretation of Rule 4.2, recognizing a split among the jurisdictions, adopts a liberal view toward permitting contact with former employees. "[A] lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without violating Model Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without the consent of the corporation's lawyer." ABA Formal Op. # 91-359. The ABA limited its opinion only by noting that the lawyer should not "seek to induce the former employee to violate" any attorney-client privilege attaching to communications made as an employee to corporate counsel. Also, if the witness is unrepresented, the lawyer should observe the requirements of Rule 4.3. Id.

4.2:220      Communications "Authorized by Law" -- Law Enforcement Activities

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

4.2:230      Communications "Authorized by Law" -- Other

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

4.2:240      Communication with a Represented Government Agency or Officer

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

4.2:250      Communication with a Confidential Agent of Non-Client

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

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary:

4.3:101      Model Rule Comparison

South Carolina Rule 4.3 and its comments are identical to Model Rule 4.3.

4.3:102      Model Code Comparison

Rule 4.3 did not have a direct counterpart in the Code of Professional Responsibility but is drawn in part from DR 7-104(A)(2).

4.3:200   Dealing with Unrepresented Person

Primary SC References: SC Rule 4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary: ABA/BNA 71:501, ALI-LGL 163, Wolfram 11.6.3

When a lawyer communicates with a nonlawyer, there always is the risk that the nonlawyer will misunderstand the role of the lawyer. The comment to Rule 4.3 observes that such a person "might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client." Accordingly, Rule 4.3 requires that a lawyer not imply that he or she is disinterested. If it is reasonably apparent that the unrepresented person misunderstands the lawyer's role, the lawyer must take reasonable steps to clarify that role. Rule 4.3.

The comment to Rule 4.3 adds the language of prior code DR 7-104(A)(2) that during a representation, a lawyer "should not give advice to an unrepresented person other than the advice to obtain counsel." A lawyer who does otherwise and offers advice to an unrepresented party, of course, may be held to have undertaken an attorney-client relationship with that party, with the consequent obligations and potential for conflicts of interest. [see 1.2:210]. See John Freeman, Ex Parte Contacts with Potential Witnesses, S.C. LAW., Mar.-Apr. 1997, at 11 (discussing some ethical constraints on lawyers conducting informal discovery).

4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary:

4.4:101      Model Rule Comparison

South Carolina Rule 4.4 and its comments are identical to Model Rule 4.4, except that the South Carolina rule reads "no purpose"no substantial purpose." The comment to the South Carolina rule explains this omission as follows:

The South Carolina version deletes "substantial" which is the qualifier before "purpose" in the model rule. The chilling effect of having to demonstrate a substantial purpose outweighs the protections to be afforded to third persons. A lawyer should not have to determine the relative merits of trial tactics against embarrassment to a third person. As to cross examining an adverse witness, the lawyer's conduct is limited by the rules of evidence and the control which the trial judge exercises over the conduct of the trial. In problems of delaying or burdening witnesses, the trial judge can also exercise control and the witness in certain circumstances can obtain a protective order.

4.4:102      Model Code Comparison

Rule 4.4 did not have a direct counterpart in the Code of Professional Responsibility but is drawn in part from several rules, including DR 7-102(A)(1), DR 7-106(C)(2), DR 7-108(D), and DR 7-108(E).

4.4:200   Disregard of Rights or Interests of Third Persons

Primary SC References: SC Rule 4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary: ABA/BNA 71:101, ALI-LGL 163, 166, 167, Wolfram 12.4.4

In addition to competently and zealously representing the client, a lawyer owes duties of truthfulness and fairness to the court and to other persons, including opposing parties and their counsel. As stated in the comment to Rule 4.4, "[r]esponsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons." The Preamble to the rules establishes the general aspirational goal that a lawyer should use the law "only for legitimate purposes and not to harass or intimidate others." That goal is reflected specifically by Rule 4.4, which requires that a lawyer not "use means that have no purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person." See In re Clarkson, 271 S.C. 5, 244 S.E.2d 512 (1978) (by unspecified methods, lawyer withheld welfare check from individual in effort to force settlement with lawyer's client). The lawyer, thus, should have some legitimate purpose for tactics that might cause embarrassment or delay or impose a significant burden on a party or witness. See also Rule 3.4(d)(prohibiting frivolous discovery requests). The comment suggests, however, that Rule 4.4 is not intended to prohibit a lawyer from using good faith tactics that may embarrass a witness and notes that in the courtroom a judge has inherent authority to prevent abusive practices. Rule 4.4, cmt.

Ethical considerations in the old Code of Professional Responsibility added a duty of courtesy in dealing with other lawyers. See EC 7-38. An advisory opinion, relying on that language of the code, found no ethical problem with the longstanding custom allowing a lawyer to grant an extension of time requested in good faith by the opposing side prior to expiration of the original period, if there is no prejudice to the client. S.C. Bar Ethics Adv. Op. # 89-19.

4.4:210      Cross-Examining a Truthful Witness; Fostering Falsity

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

4.4:220      Threatening Prosecution [see 8.4:900]

South Carolina retained the Model Code provision regarding threats of criminal prosecution.

Rule 4.5, which does not appear in the Model Rules but was added in South Carolina, prohibits a lawyer from bringing criminal charges or threatening to bring criminal charges against another person solely to obtain an advantage in a civil matter. The current rule thus retains the language of prior code DR 7-105. Although the rule of professional conduct prohibiting an attorney from threatening a criminal prosecution usually applies to an attorney's threatening criminal prosecution on behalf of a client, the rule equally applies to an attorney's dispute with his own client. In In re Yarborough, 327 S.C. 161, 488 S.E.2d 871 (1997), respondent wrote his client a letter threatening to proceed criminally against her unless she paid him for rental car fees that he had paid on her behalf in connection with a wreck case.

The prohibition of Rule 4.5 includes threats made to the other party's counsel, see S.C. Bar Ethics Adv. Op. # 92-01, and apparently includes a threat to report an adverse party to the Internal Revenue Service. See S.C. Bar Ethics Adv. Op. # 89-18. See also ABA Formal Op. # 94-383 (finding it unethical to threaten to report lawyer misconduct unless a matter is settled, at least when there is an obligation to report the misconduct).