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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VI. PUBLIC SERVICE

6.1   Rule 6.1 Pro Bono Public Service

6.1:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 6.1
Background References: ABA Model Rule 6.1, Other Jurisdictions
Commentary:

6.1:101      Model Rule Comparison

South Carolina has not adopted the revision to Model Rule 6.1 approved by the ABA in 1993, calling for an aspirational standard of 50 hours of pro bono publico legal services per year. The South Carolina version is the ABA's original Model Rule.

6.1:102      Model Code Comparison

There was no direct counterpart of Rule 6.1 in the disciplinary rules of the Code of Professional Responsibility. EC 2-25 referred to the responsibility of the individual lawyer to assist in providing legal services to indigents.

6.1:200   Lawyer's Moral Obligation to Engage in Public Interest Legal Service

Primary SC References: SC Rule 6.1
Background References: ABA Model Rule 6.1, Other Jurisdictions
Commentary: ABA/BNA 91:6001, ALI-LGL , Wolfram 16.9

The Rules of Professional Conduct suggest pro bono or reduced fee legal assistance or financial support for legal service organizations as appropriate methods of fulfilling the lawyer's acknowledged responsibility to provide public interest legal services. The rules do not impose a mandatory pro bono obligation. Rule 6.1. Another suggested method of fulfilling the public service responsibility is service in activities to improve the law, the legal system, or the profession. Id. Both USC Law School and the South Carolina Bar offer opportunities for law students and lawyers to provide pro bono services.

6.2   Rule 6.2 Accepting Appointments

6.2:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 6.2. See also S.C. App. Ct. R. 608 (Appointment of Lawyers for Indigents).
Background References: ABA Model Rule 6.2, Other Jurisdictions
Commentary:

6.2:101      Model Rule Comparison

South Carolina Rule 6.2 and its comments are identical to Model Rule 6.2.

6.2:102      Model Code Comparison

There was no direct counterpart of Rule 6.2 in the disciplinary rules of the Code of Professional Responsibility. ECs 2-27 and 2-30 referred to limitations on a lawyer's declining appointments that are similar to Rule 6.2.

6.2:200   Duty to Accept Court Appointments Except for Good Cause

Primary SC References: SC Rule 6.2
Background References: ABA Model Rule 6.2, Other Jurisdictions
Commentary: ABA/BNA 91:6201, ALI-LGL 26, Wolfram 16.9

The comment to Rule 6.2 includes language similar to that found in prior code EC 2-27, which balances the lawyer's freedom to select clients against a responsibility not to reject a prospective client simply because of the unpopularity of the client or the client's cause. Another limitation arising from a lawyer's public service responsibilities is the duty to accept appointment as counsel for a party, unless good cause to reject appointment can be shown. Rule 6.2.

Grounds constituting good cause not to accept appointment are set forth in nonexclusive fashion in Rule 6.2. An appointment may be declined if the appointment would cause a violation of any ethical rule, such as by requiring the lawyer to handle a matter in which the lawyer is not competent or by creating an impermissible conflict of interest. Rule 6.2(a). Also, the lawyer may decline an appointment that is "likely to result in an unreasonable financial burden" or that involves a client or cause"so repugnant to the lawyer as to be likely to impair" the representation. Rule 6.2(b) and (c).

The South Carolina Supreme Court has adopted appellate rule 608 dealing with appointment of lawyers to represent indigents. See also S.C. Bar Ethics Adv. Op. # 97-29 (lawyer who has been appointed by court does not violate Rule 6.2 by contracting with another lawyer to render representation for compensation provided necessary court approval is obtained).

6.3   Rule 6.3 Membership in Legal Services Organization

6.3:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 6.3
Background References: ABA Model Rule 6.3, Other Jurisdictions
Commentary:

6.3:101      Model Rule Comparison

South Carolina Rule 6.3 and its comments are identical to Model Rule 6.3.

6.3:102      Model Code Comparison

The Code of Professional Responsibility did not include a counterpart to Model Rule 6.3.

6.3:200   Conflicts of Interest of Lawyers Participating in a Legal Services Organization

Primary SC References: SC Rule 6.3
Background References: ABA Model Rule 6.3, Other Jurisdictions
Commentary: ABA/BNA 91:6401, ALI-LGL 216, Wolfram 16.7.4

In addition to encouraging financial support for legal services organizations, Rule 6.1, the rules attempt to accommodate lawyers who are officers, directors, or members of legal service organizations by providing specific guidance on avoiding impermissible conflicts of interest. The comment to Rule 6.3 acknowledges that it is desirable to encourage lawyers "to support and participate in legal service organization."

Rule 6.3 permits a lawyer to serve as a director of a legal services organization even though "the organization serves persons having interests adverse to a client of the lawyer" subject to two exceptions. First, the lawyer may not participate in any decision or action of the agency that would be incompatible with the lawyer's obligations to a client under Rule 1.7. Rule 6.3(a). Second the lawyer may not participate in any decision or action which could adversely affect a client of the organization with interests adverse to a client of the lawyer. Rule 6.3(b). Thus, a director of a public defender or legal services corporation may represent a criminal defendant with interests adverse to a codefendant represented by the organization so long as the director does not have access to confidential information or participate in decisions concerning the organization's client. S.C. Bar Ethics Adv. Op. # 90-08. Cf. S.C. Bar Ethics Adv. Op. # 98-05 (attorneys serving as board members for business incubator facility established by county government and local branch of university may, with full disclosure of potential conflicts and with care not to compromise representation of existing clients, represent people served by organization). The comment to Rule 6.3 notes that it may be appropriate to reassure a client of the organization that the representation of that client will not be affected by conflicting loyalties of a director or officer. Rule 6.3, cmt.

6.4   Rule 6.4 Law Reform Activities Affecting Client Interests

6.4:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 6.4
Background References: ABA Model Rule 6.4, Other Jurisdictions
Commentary:

6.4:101      Model Rule Comparison

South Carolina Rule 6.4 and its comments are identical to Model Rule 6.4.

6.4:102      Model Code Comparison

There was no counterpart to Rule 6.4 in the Code of Professional Responsibility.

6.4:200   Conflicts of Interest of Lawyers Participating in Law Reform Organizations

Primary SC References: SC Rule 6.4
Background References: ABA Model Rule 6.4, Other Jurisdictions
Commentary: ABA/BNA 91:6401, ALI-LGL , Wolfram 13.8

Like Rule 6.3, Rule 6.4 encourages participation of lawyers in law reform organizations even if the reform proposed would affect the interests of clients, although the rule does not exempt the lawyer from the conflict of interest rules in Rule 1.7. Rule 6.4 permits service as an officer or director of a law reform organization or organization involved in the administration of the law. The rule provides that if a decision of the organization may benefit a client materially, the lawyer must disclose the fact, but need not identify the client. The rule does not address specifically the proper conduct if an action of the organization could affect a client adversely. However, the comment makes clear that the lawyer must comply with the general conflict of interest rules set forth in Rule 1.7. Rule 6.4, cmt.

There is no per se prohibition in Rule 1.7 against a board member of the Department of Youth Services also representing a juvenile in a criminal family court matter if the lawyer as a board member does not participate in individual cases. S.C. Bar Ethics Adv. Op. # 90-26 (superseding Op. # 89-20). See also S.C. Bar Ethics Adv. Op. # 81-12 (service on DSS Board does not prevent criminal representation under prior code).

If there is full disclosure, one member of a law firm may serve as counsel for a public hospital at the same time that another partner is a board member of the hospital. S.C. Bar Ethics Adv. Op. # 85-22. However, while a member of the firm is a director actively involved in the affairs of the hospital, the firm may not represent an adverse party suing the hospital. If the member of the firm is no longer a director, the firm is not disqualified from representing the adverse party simply because the member of the firm was a director at the time of the alleged injury. S.C. Bar Ethics Adv. Op. # 80-02.

6.5   Rule 6.5 Nonprofit and Court-Annexed Limited Legal Service Programs

6.5:100   Comparative Analysis of SC Rule

Primary SC References:
Background References: ABA Model Rule 6.5, Other Jurisdictions
Commentary:

MR 6.5 was added in February 2002. The Reporter's explanation of the change reads as follows:

Rule 6.5 is a new Rule in response to the Commission's concern that a strict application of the conflict-of-interest rules may be deterring lawyers from serving as volunteers in programs in which clients are provided short-term limited legal services under the auspices of a nonprofit organization or a court-annexed program. The paradigm is the legal-advice hotline or pro se clinic, the purpose of which is to provide short-term limited legal assistance to persons of limited means who otherwise would go unrepresented.

6.5:101      Model Rule Comparison

South Carolina has not adopted the new model rule.

6.5:200   Scope of Rule

Primary SC References:
Background References: ABA Model Rule 6.5, Other Jurisdictions
Commentary:

South Carolina has not adopted the new model rule.

6.5:300   Special Conflict of Interest Rule

Primary SC References:
Background References: ABA Model Rule 6.5, Other Jurisdictions
Commentary:

South Carolina has not adopted the new model rule.