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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VII. INFORMATION ABOUT LEGAL SERVICES

7.1   Rule 7.1 Communications Concerning a Lawyer's Services

7.1:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 7.1. See also S.C. App. Ct. R. 418 (Advertising and Solicitation by Unlicensed Lawyers).
Background References: ABA Model Rule 7.1, Other Jurisdictions
Commentary:

7.1:101      Model Rule Comparison

South Carolina has made the following changes to Model Rule 7.1:

The South Carolina rule prohibits "false, misleading, deceptive, or unfair communications about the lawyer or the lawyer's services," while the ABA Rule is limited to "false or misleading" communications.

South Carolina has added section (d) to the rule, which provides as follows:

(d) contains a testimonial which concerns the quality of the services rendered or results obtained.

The South Carolina comment has been modified to reflect and explain the changes in the rule.

7.1:102      Model Code Comparison

Rule 7.1 is derived from DR 2-101 of the Code of Professional Responsibility.

7.1:200   Lawyer Advertising--In General

Primary SC References: SC Rule 7.1
Background References: ABA Model Rule 7.2, Other Jurisdictions
Commentary:

7.1:210      Prior Law and the Commercial Speech Doctrine

Fee advertising was first permitted after the 1977 decision of the Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350 (1977). The court recognized in that case that the First Amendment prohibits a blanket prohibition on advertising, although advertising might be regulated. Id. at 383. As an example of permitted regulation, the court found that "false, deceptive, or misleading" advertisement clearly is "subject to restraint." Id.

One year after deciding Bates, the Supreme Court considered the power of a state to regulate in-person solicitation of clients by a lawyer. In Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), the court upheld a prophylactic rule against in-person solicitation. Finding that in-person solicitation "is as likely as not to discourage persons needing counsel from engaging in a critical comparison . . . of legal services," the court refused to require proof of actual overreaching or specific injury before discipline can be imposed on a lawyer who engages in in-person solicitation. Id. at 457. A similar prohibition on in-person solicitation for pecuniary gain remains in effect in South Carolina today under Rule 7.3.

The same day as it decided Ohralik, the court reversed a decision of the South Carolina Supreme Court that had imposed discipline on a lawyer who had solicited a client by letter on behalf of the American Civil Liberties Union. In re Primus, 436 U.S. 412 (1978). Distinguishing Ohralik, the court noted that Primus involved political expression and association. In that context, the court held that the state must show actual overing or similar misconduct by the lawyer in order to impose discipline.

South Carolina in 1980 adopted a lengthy, revised disciplinary rule under the old Code of Professional Responsibility, which permitted the publication of 20 specific types of information. DR 2-101(B). The disciplinary rule specifically prohibited certain types of statements and required generally that any publication be "presented in a dignified manner."

Other states also regulated advertising heavily following Bates. In In re R.M.J., 455 U.S. 191 (1982), the Supreme Court struck down advertising regulations in Missouri that it deemed to be more restrictive than was "reasonably necessary to further substantial interests." Id. at 207. The court said that states "may not place an absolute prohibition on certain types of potentially misleading information, . . ., if the information also may be presented in a way that is not deceptive." Id. at 203.

After In re R.M.J. the Supreme Court considered the constitutionality of restrictions on advertisements that were targeted toward specific groups of potential clients and of direct mail solicitations of clients known to need legal services in particular matters. In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the court reversed an order of the Supreme Court of Ohio imposing discipline on a lawyer for publishing newspaper ads soliciting women who had used the Dalkon Shield. Again distinguishing Ohralik, the court concluded that directed advertising does not present the same risks of overor undue influence as in-person solicitation. "We need not . . . address the theoretical question whether a prophylactic rule is ever permissible in this area, for we do not believe that the State has presented a convincing case for its argument that the rule before us is necessary to the achievement of a substangovernmental interest." Id. at 644.

A state also may not categorically prohibit truthful and nondeceptive direct mail solicitation. Although a personalized letter sent to a potential client may pose "an increased risk of deception, intentional or inadvertent," this potential harm "does not justify a total ban on that mode of protected commercial speech." Shapero v. Kentucky Bar Assn., 486 U.S. 466, 476 (1988). In Shapero, the lawyer had been disciplined for sending letters to persons against whom a foreclosure suit had been filed. The letters suggested that the lawyer might be able to help the recipients save their home from foreclosure and invited the recipients to call the lawyer for a free consultation. The court suggested that, while a total ban on such letters was unconstitutional, the state could regulate direct mail solicitations by requiring the lawyer to prove any fact stated, to explain how the fact had been discovered and verified, and to identify any solicitation as an advertisement. Id. at 477. South Carolina Rule 7.3 imposes restrictions on direct mail solicitation. [see 7.3:300].

Following Zauderer and Shapero, South Carolina in 1990 adopted rules based on the ABA Model Rules of Professional Conduct. The advertising and solicitation rules were substantially revised in 1998, adding new restrictions, particularly on direct mail solicitation. The revisions followed the decision by the United State Supreme Court in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), upholding Florida regulations that prohibit personal injury lawyers from sending targeted direct mail solicitations within 30 days following an accident or disaster.

Rule 7.1 generally permits commercial speech that is not false or misleading. The Supreme Court had noted in Zauderer that "the mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity." 471 U.S. at 648 (ad featured drawing of Dalkon Shield). Prior to Zauderer, the South Carolina Supreme Court had disbarred a lawyer under the old code for, among other things, publishing advertisements that were "presented in a showy and undignified manner unbefitting of the profession." In re Burgess, 279 S.C. 44, 302 S.E.2d 325 (1983).

The issue of whether a state may regulate lawyer advertising to ensure some level of dignity was raised again by the Supreme Court's decision in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995). The purpose of the direct mail regulations was described by the court as "an effort to protect the flagging reputations of Florida lawyers by preventing them from engaging in conduct that, the Bar maintains, 'is universally regarded as deplorable and beneath common decency because of its intrusion upon the special vulnerability and private grief of victims or their families.'" Id. at 624-625. The court found that the state had shown a sufficient interest in "preventing the erosion of confidence in the profession that such repeated invasions have engendered." Id. at 618. The dissent argued that the State's attempt to prohibit "speech some deem offensive . . . is censorship pure and simple." Id. at 640.

The Supreme Court applies an "intermediate" level of scrutiny for lawyer advertising regulations, requiring that the government assert a substantial state interest supporting the regulation, that the government show how the restriction directly and materially advances the asserted interest, and that the regulation be narrowly drawn. In upholding the Florida Bar rule on the timing of direct solicitation, however, the court emphasized that a regulation need not be the least restrictive means of achieving the desired result in order to survive First Amendment scrutiny. The regulation must merely "fit" reasonably the desired objective. 515 U.S. at 632.

7.1:220      False and Misleading Communications

Advertisements must not be false or misleading. A material misrepresentation or omission of a necessary fact may render a statement misleading. Rule 7.1(a). In In re Pavilack, 327 S.C. 6, 488 S.E.2d 309 (1997), the South Carolina Supreme Court examined the content of two commercials advertising petitioner's legal services. The first ad portrayed petitioner summoning a police officer to come to the scene of an accident to determine who was at fault, and the other ad placed petitioner at the scene of an accident instructing the police officer on whom to find at fault. The court held that these ads improperly portrayed respondent as having the ability to control police investigation of an accident. Citing DR 2-101 of the prior code, which similarly prohibifalse or misleading statements or omissions, the court in 1983 disciplined a lawyer in part for advertisements that "promise relief from financial difficulty, yet fail to disclose the nature of the service to be provided (i.e., bankrupt.)" In re Burgess, 279 S.C. 44, 302 S.E.2d 325 (1983) (additional grounds cited as basis for disbarment were undignified advertising and repeated neglect of client matters).

Communications should not include the name of a lawyer holding public office if the lawyer is not "actively and regularly practicing with the firm" at the time of the communication. Rule 7.5(c). A former judge may not continue to use the title of "judge" after returning to the private practice of law. ABA Formal Op. # 95-391.

7.1:230      Creating Unjustifiable Expectations

Any statement likely to create unjustified expectations with regard to anticipated results is improper. Thus, a lawyer should not advertise damage awards in prior cases or refer to the lawyer's "won-lost" record. Client endorsements also may create unjustified expectations and should not be included in an ad. Rule 7.1(d). The ad should not imply that a "lawyer can achieve results" by illegal or improper means. Rule 7.1(b). See In re Shelley, 313 S.C. 144, 437 S.E.2d 86 (1993) (finding that lawyer misled client to believe that lawyer could achieve specific result by influencing a legislator).

7.1:240      Comparison with Other Lawyers

Under South Carolina Rule 7.1(c) advertising that compares the lawyer's services with those rendered by other lawyers is misleading "unless the comparison can be factually substantiated."

7.2   Rule 7.2 Advertising

7.2:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 7.2
Background References: ABA Model Rule 7.2, Other Jurisdictions
Commentary:

7.2:101      Model Rule Comparison

Sections (a), (b), (c), and (d) of South Carolina Rule 7.2 are essentially the same as Model Rule 7.2, except that the South Carolina rule does not include Model Rule 7.2(c)(3), dealing with purchase of a law practice under Rule 1.17. Because South Carolina has adopted Rule 1.17, this omission appears to be of no significance.

South Carolina has added a number of restrictions on advertising that are not found in Model Rule 7.2. See S.C. Rule 7.2(e), (f), (g), (h), and (i).

The South Carolina comments are identical to the comments to Model Rule 7.2, except that the reference to Rule 1.17 is omitted and the following sentence has been added at the end of the comments:

"Usual fees" may include a portion of legal fees collected by an attorney from clients referred by the service when that portion of fees is collected to support the expenses projected for the referral service.

7.2:102      Model Code Comparison

Rule 7.2 is derived principally from DR 2-101(B), DR 2-101(D), and DR 2-103(B) of the Code of Professional Responsibility.

7.2:200   Permissible Forms of Lawyer Advertising

Primary SC References: SC Rule 7.2(a)
Background References: ABA Model Rule 7.2(a), Other Jurisdictions
Commentary: ABA/BNA 81.201, Wolfram 14.2

Rule 7.2 provides that, subject to the requirements of Rules 7.1 and 7.3, "a lawyer may advertise services through public media." Specifically, a lawyer may advertise in telephone or legal directories, in newspapers or other periodicals, by outdoor advertising, on radio and television, or by other means of written or recorded communication. Id. The comment to Rule 7.2 provides a nonexclusive list of acceptable advertising content. A lawyer may advertise directory information, such as name, address, and telephone number, as well as areas of practice. Rule 7.2, cmt. However, care must be taken to comply with Rule 7.4, which sharply limits a lawyer's ability to assert expertise or specialization in an area of practice. The lawyer may advertise fees for specific services or the method of calculating fees. Rule 7.2, cmt. A lawyer may list references and, with the consent of the client, may list names of clients regularly represented, although client endorsements ordinarily should not be included. Rules 7.1, 7.2, and cmts. Rule 7.2 omits an earlier requirement that advertising be dignified, with the comment acknowledging that regulation of taste is a matter of "speculation and subjective judgment."

The rules no longer expressly prohibit a lawyer from indicating that he or she holds two or more professional licenses. See S.C. Bar Ethics Adv. Ops. ## 93-10, 93-37. Nothing in Rule 7.2 or 7.3 is intended to prohibit "communitions authorized by law, such as notice to members of a class in class action litigation." Rule 7.2, cmt.

Amendments to Rule 7.2 adopted by the South Carolina Supreme Court in 1998 have added a number of restrictions on lawyer advertising. Rule 7.2(e) prohibits lawyers from paying all or part of the cost of an advertisement made by another lawyer who is not in the same firm unless certain disclosures are made. The rule is designed to restrict various forms of lawyer referral services and group advertising. Rule 7.2(f) prohibits lawyers from making statements in advertisements that are "merely self-laudatory or which describe or characterize the quality of the lawyer's services." The restriction does not apply to information requested by a client or provided to existing clients. There is some doubt about the constitutionality of Rule 7.2(f) under the Supreme Court's lawyer advertising decisions. [see 7.1:210]. Advertisements about lawyers' fees must disclose whether the client is responsible for expenses and, in percentage fee cases, whether the fee is computed before or after the deduction of expenses. Rule 7.2(g). Lawyers must honor fees that they advertise for at least 90 days, unless the advertisement specifies a shorter period. Fees in publications issued annually must be honored for one year following publication. Rule 7.2(h). An advertisement must disclose the geographic area in which the lawyer practices. Rule 7.2(i).

If a client without the knowledge of the lawyer creates a web page advertising the lawyer's services in connection with a pending case, the lawyer must counsel the client about the consequences of the web page pursuant to Rule 1.2(a) and may withdraw if the client does not modify the page to comply with the lawyer advertising rules. S.C. Bar Ethics Adv. Op. # 99-09.

7.2:300   Retaining Copy of Advertising Material

Primary SC References: SC Rule 7.2(b)
Background References: ABA Model Rule 7.2(b), Other Jurisdictions
Commentary: ABA/BNA 81:401, Wolfram 14.2

A lawyer must retain a copy or recording of any advertisement for two years after its last dissemination. The lawyer also must keep complete records of when and where the ad was used. Rule 7.2(b). These requirements are designed to facilitate enforcement without requiring prior clearance of ads. Rule 7.2, cmt.

7.2:400   Paying to Have Services Recommended

Primary SC References: SC Rule 7.2(c)
Background References: ABA Model Rule 7.2(c), Other Jurisdictions
Commentary: ABA/BNA 81.301, Wolfram 14.2

As a general rule, a lawyer may not give anything of value to a person in exchange for recommending the lawyer's services. Rule 7.2(c). One exception to the general rule does permit a lawyer to pay the reasonable cost of any advertising or other communication permitted under Rule 7.2. A second exception permits a lawyer to pay the usual charges of a "not-for-profit lawyer referral service or other legal service organization." Id. The "usual fees" collected by a referral service may include "a portion of legal fees collected by the attorney from clients" referred to the lawyer by the service, as long as the fees are collected "to support the expenses projected for the referral service." Rule 7.2, cmt. This comment was added by the South Carolina Supreme Court in 1994 after the South Carolina Bar Ethics Advisory Committee expressed concern that a payment to the referral service based upon a percentage of the fee collected "would not relate to the usual costs of advertisements or communications" and, thus, would violate Rule 7.2(c). S.C. Bar Ethics Adv. Op. # 93-09.

Rule 7.2(c) is similar to prior DR 2-103(B) under the Code of Professional Responsibility. In a case decided under the old code, the South Carolina Supreme Court sanctioned a lawyer for making a payment to police officers "intended for the purpose of solicitation." One police officer testified that the payment was made, "at least in part, for prior cases he had referred" to the lawyer. In re Bloom, 265 S.C. 86, 217 S.E.2d 143 (1975).

Rule 7.2(e) prohibits lawyers from paying all or part of the cost of an advertisement made by another lawyer who is not in the same firm unless certain disclosures are made. The rule is designed to restrict various forms of lawyer referral services and group advertising.

7.2:500   Identification of a Responsible Lawyer

Primary SC References: SC Rule 7.2(d)
Background References: ABA Model Rule 7.2(d), Other Jurisdictions
Commentary: ABA/BNA 81.201, 81:301, Wolfram 14.2

An advertising cooperative that runs generic lawyer advertising with a toll free number violates Rule 7.2 because it does not provide the name of at least one lawyer responsible for the advertisement. The communication also violates provisions requiring disclosure that several lawyers are sharing the cost of advertising and requiring disclosure of the geographical location of the office where legal services will be performed. S.C. Bar Ethics Adv. Op. # 99-01.

7.3   Rule 7.3 Direct Contact with Prospective Client

7.3:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 7.3
Background References: ABA Model Rule 7.3, Other Jurisdictions
Commentary:

7.3:101      Model Rule Comparison

South Carolina has substantially rewritten and added to Model Rule 7.3. South Carolina imposes significant restrictions on directed mail or recorded solicitations that are not found in the Model Rule. Among the most significant changes made by the South Carolina rule are the following:

South Carolina precludes lawyers from direct mail or recorded solicitations in personal injury cases for 30 days after the occurrence. S.C. Rule 7.3(b)(3). Model Rule 7.3 requires all direct mail or recorded solicitations to be labeled as "ADVERTISING MATERIAL," and South Carolina has adopted this requirement. Rule 7.3(c)(1). In addition, all direct mail or recorded solicitations in South Carolina must include three specific statements set forth in the rule. Rule 7.3(c)(2)(A), (B) and 7.3(c)(3). All written or recorded solicitations must be filed with the South Carolina Commission on Lawyer Conduct within 10 days after the mailing or recording along with a fee of $10. Rule 7.3(i). The rule contains a number of other restrictions and limitations on direct mail solicitation or recording. See Rule 7.3(d), (e), (f), (g), (h), (j).

South Carolina has adopted most of the comments to Model Rule 7.3, but has made a number of additions and modifications to reflect and explain the South Carolina version of the rule.

7.3:102      Model Code Comparison

Rule 7.3 is derived from DR 2-104 of the Code of Professional Responsibility, but with major modifications and additions.

7.3:200   Prohibition of For-Profit In-Person Solicitation

Primary SC References: SC Rule 7.3(a)
Background References: ABA Model Rule 7.3(a), Other Jurisdictions
Commentary: ABA/BNA 81:2001, Wolfram 14.2.5

Rule 7.2 generally permits a lawyer to advertise by any means of written or recorded communication, provided the communication is not false or misleading. However, special concerns for abuse exist whenever a lawyer directly contacts a prospective client. Rule 7.3 expressly forbids certain forms of direct contact. In-person or live telephone solicitation is not permitted if (1) the lawyer has no family or prior professional relationship with the prospective client and (2) a significant motive for the solicitation is the pecuniary gain of the lawyer. Rule 7.3(a).

No direct solicitation by any means (whether written, recorded, or in-person), including solicitation of a prior client, is permitted if (1) the prospective client has made known to the lawyer a desire not to be solicited, (2) the solicitation is coercive or involves duress or harassment, (3) the solicitation involves a personal injury case and the accident or disaster occurred less than 30 days before the solicitation, (4) the solicitation involves a specific matter and the lawyer knows or reasonably should know that the person solicited in the matter is represented by counsel, or (5) the lawyer knows or reasonably should know that the person's physical or emotional condition makes it unlikely that the person will be able to exercise reasonable judgment in employing a lawyer. Rule 7.3(b). If a lawyer has sent a communication to a prospective client and has received no response, the lack of response may be interpreted as a desire not to be solicited further. See Rule 7.3, cmt.

In several cases decided under the old code, the South Carolina Supreme Court sanctioned lawyers for direct solicitation. See In re Reaves, 272 S.C. 213, 250 S.E.2d 329 (1978) (physician referred patients to lawyer in scheme that amounted to solicitation); In re Houston, 271 S.C. 259, 247 S.E.2d 315 (1978) (lawyer went to home of accident victim and offered to represent victim); In re Morris, 270 S.C. 308, 241 S.E.2d 911 (1978) (lawyer alleged to have solicited employment from prospective client with regard to disability benefits claim); In re Craven, 267 S.C. 33, 225 S.E.2d 861 (1976) (without prior contact, employee of lawyer personally visited accident victims or victim's survivors and transported them to lawyer's office where employment contract was signed); In re Crosby, 256 S.C. 325, 182 S.E.2d 289 (1971) (lawyer solicited accident cases through automobile repair shop). While these cases largely predate the application of the commercial speech doctrine to lawyer advertising, they are almost certainly still good law because the Supreme Court has ruled that states may constitutionally prohibit in-person solicitation under circumstances likely to involve abuse or overreaching. See Ohralik v. Ohio State Bar Assn. and In re Primus discussed in section 7.1:210.

7.3:210      Solicitation by Non-Profit Public Interest Organization

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

7.3:220      Solicitation of Firm Clients by a Departing Lawyer

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

7.3:300   Regulation of Written and Recorded Solicitation

Primary SC References: SC Rule 7.3(b)
Background References: ABA Model Rule 7.3(b), Other Jurisdictions
Commentary: ABA/BNA 81:2001, Wolfram 14.2.5

Every written or recorded communication from a lawyer soliciting professional employment from a prospective client who has not requested information, see Rule 7.3, cmt, and who is "known to be in need of legal services in a particular matter," other than communications to family or to persons with whom the lawyer has had a prior professional relationship, must comply with the requirements of Rules 7.1, 7.2, 7.3(b) and must contain certain specific notices and disclaimers. Rule 7.3(c). Unless otherwise noted, these requirements apply both to written and recorded solicitations:

(1) The words "ADVERTISING MATERIAL" must be printed in capital letters and in prominent type on the front outside of the envelope and on the front of each page of written material. The beginning and end of recordings must state that they are advertisements.

(2) Each written or recorded communication must contain three statements, the wording of which is specified in the Rule. The statements (i) recommend to the recipients that they may wish to consult another lawyer, inform them how to obtain information about other lawyers, and advise them to direct any questions to their current lawyer if they already are represented, Rule 7.3(c)(2)(A); (ii) warn the client that the information in the communication may not apply to the client's particular situation, Rule 7.3(c)(2)(B); and (iii) notify the recipient how to report complaints about the conduct of the lawyer, Rule 7.3(c)(3).

In addition to the notices and disclaimers set forth above, written or recorded solicitations must comply with the following requirements: Written communications must be sent by regular U.S. mail, not registered or other forms of restricted or certified delivery. Rule 7.3(d). Written communications should not be made to resemble pleadings or other legal documents. Rule 7.3(e). If the communication relates to a specific occurrence, the lawyer must disclose in any written communication how the lawyer obtained information prompting the communication. Rule 7.3(f). Communication which seeks employment of a specific client in a specific matter must not reveal on outside of the envelope or on the outside of a self-mailing brochure or pamphlet the nature of the client's problem. Rule 7.3(g). If a lawyer other than the lawyer whose signature appears on the communication will be handling the matter, the communication shall so advise the potential client. Rule 7.3(h). All written or recorded solicitations must be filed with the South Carolina Commission on Lawyer Conduct within 10 days after the mailing or recording along with a fee of $10. When the communication is made to a number of people similarly situated, a representative copy must be filed, along with a list of persons to whom the communication was sent. Rule 7.3(i). Lawyers who use written or recorded communications must maintain a file for two years containing information showing the basis by which the lawyer knows that the recipient needs legal services and the factual basis for statements made in written or recorded communications. Rule 7.3(j).

7.3:400   Disclaimers for Written and Recorded Solicitation

Primary SC References: SC Rule 7.3(c)
Background References: ABA Model Rule 7.3(c), Other Jurisdictions
Commentary: ABA/BNA 81:401, Wolfram 14.2.5

If a lawyer makes a general mailing of brochures to potential clients, the lawyer need not comply with the requirements of Rule 7.3(c) if the recipients are not "known to be in need of legal services in a particular matter." S.C. Bar Ethics Adv. Op. # 97-05. A lawyer who purchases a banner advertisement on an Internet service provider must comply with the rules on advertising but need not comply with the solicitation rules because the consumer has voluntarily accessed the service. S.C. Bar Ethics Adv. Op. # 99-04.

7.3:500   Solicitation by Prepaid and Group Legal Services Plans

Primary SC References: SC Rule 7.3(d)
Background References: ABA Model Rule 7.3(d), Other Jurisdictions
Commentary: ABA/BNA 81:2501, Wolfram 16.5.5

A lawyer may participate in a prepaid or group legal service plan that solicits potential members or subscribers by in-person or live telephone contact, as long as (1) the organization operating the plan is not owned or directed by the lawyer and (2) the persons contacted by the plan are not known to need legal services in a particular matter covered by the plan. Rule 7.3(k). Any lawyer providing services under the plan should not make an in-person or live telephone solicitation contact. Rule 7.3, cmt. Lawyers participating in the plan "must reasonably assure" that the sponsors of the plan conform with Rules 7.1, 7.2, and 7.3(b). Id.

Under the prior code, a lawyer in South Carolina could cooperate only with not-for-profit organizations that recommended, provided, or paid for legal services for their members. DR 2-103(d)(5). Even in that context, participation was narrowly permitted only "to the extent that controlling constitutional interpretation" required the allowance of such activities. The current rules contain no similar limitations requiring legal service plans to be operated by not-for-profit organizations.

7.4   Rule 7.4 Communication of Fields of Practice

7.4:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 7.4. See also S.C. App. Ct. R. 408 (Continuing Education and Specialization)
Background References: ABA Model Rule 7.4, Other Jurisdictions
Commentary:

7.4:101      Model Rule Comparison

The South Carolina version of Rule 7.4 and its comments deviate substantially from the wording of Model Rule 7.4. Rule 7.4(a) authorizes lawyers who are certified as specialists under Rule 408 to state publicly that they are so certified. Rule 7.4(b) provides that lawyers who are not certified pursuant to Rule 408, may advertise that they limit their practices or practice in certain areas, but prohibits noncertified lawyers from using the words "certified," "specialist," "expert" or "authority." Rule 7.4(c) provides for advertising of the traditional areas of specialization: patent, trademark, and admiralty law. South Carolina has not adopted the ABA's 1992 amendment to Rule 7.4(c) responding to the Supreme Court's decision in Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91 (1990), which held that states could not constitutionally prohibit lawyers from advertising that they had been certified as specialists by bona fide organizations.

7.4:102      Model Code Comparison

Rule 7.4 is based on DR 2-105(A) of the Code of Professional Responsibility, but with modifications.

7.4:200   Regulation of Claims of Certification and Specialization

Primary SC References: SC Rule 7.4
Background References: ABA Model Rule 7.4, Other Jurisdictions
Commentary: ABA/BNA 21:4001, 81:501, Wolfram 14.2.4

A lawyer may concentrate in certain practice areas or limit a practice to particular areas of law and may publicly indicate those limitations. Rule 7.4(b). However, only lawyers certified as specialists in a particular practice area by the South Carolina Supreme Court under Appellate Court Rule 408 may use any form of the words "certified", "specialist", "expert", or "authority" in public statements or advertisements. Id. Special provision is made for patent, trademark, and admiralty attorneys, permitting lawyers in those fields to advertise their areas of specialization. Rule 7.4(c). Areas of specialization currently recognized in South Carolina are estate planning and probate law, taxation, employment and labor law, and bankruptcy. S.C. App. Ct. R. Part IV Appendix E. See S.C. Bar Ethics Adv. Op. # 96-03 (use of term "master mariner" on legal letterhead of former merchant marine officer falsely implies expertise in admiralty law); S.C. Bar Ethics Adv. Op. # 96-29 (lawyer who is also a certified mediator may indicate certification on professional letterhead and card).

The United States Supreme Court in 1990 overturned a disciplinary sanction against an Illinois lawyer whose letterhead stated that he was certified as a trial specialist by the National Board of Trial Advocacy. Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91 (1990). Noting that certification by NBTA was verifiable as are "the predicate requirements for that certification," the court rejected the argument that the designation was deceptive in fact or inherently misleading. The court distinguished the case from one in which the organization issued certifications without any inquiry into the lawyer's qualifications or indiscriminately for a price. The court also rejected the state's claim that the public might be misled by such certifications. After Peel, a total prophylactic ban on specialist designations may be overbroad, although the state can require the lawyer to show that certification is available to all lawyers meeting "objective and consistently applied stan." Id. at 109.

7.5   Rule 7.5 Firm Names and Letterheads

7.5:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 7.5
Background References: ABA Model Rule 7.5, Other Jurisdictions
Commentary:

7.5:101      Model Rule Comparison

South Carolina Rule 7.5 and its comments are identical to Model Rule 7.5.

7.5:102      Model Code Comparison

Rule 7.5 is derived from DR 2-102(A), (B), (C), (D) of the Code of Professional Responsibility. DR 2-102(B) prohibited lawyers from practicing under a trade name, while Rule 7.5 allows such designations.

7.5:200   Firm Names and Trade Names

Primary SC References: SC Rule 7.5(a)
Background References: ABA Model Rule 7.5(a), Other Jurisdictions
Commentary: ABA/BNA 81:3001, Wolfram 14.2.4

A law firm may use a trade name, as long as the name does not imply a connection with a governmental agency or a charitable or government sponsored legal services organization. Rule 7.5(a). A trade name with a geographical designation may require an express disclaimer that the firm is not a public legal aid organization. Rule 7.5, cmt. Most forms of trade names were prohibited under the prior Code of Professional Responsibility. See DR 2-102(B).

The firm name may include some or all of the members of the firm, including deceased members if "there has been a continuing succession in the firm's identity." Rule 7.5, cmt. The firm name should not include the names of persons not associated with the firm or with a predecessor to the firm. Id.

7.5:300   Law Firms with Offices in More Than One Jurisdiction

Primary SC References: SC Rule 7.5(b)
Background References: ABA Model Rule 7.5(b), Other Jurisdictions
Commentary: ABA/BNA 81:3001, Wolfram 15.4

A multijurisdictional law firm may use the same name in each jurisdiction. Rule 7.5(b). See also ABA Formal Op. # 94-388 (guidelines for firm name when formal relationship exists among law firms). In a multi-jurisdictional practice, the listing of lawyers in a particular office should indicate the jurisdictional limitations of any lawyers not licensed to practice in the jurisdiction in which the office is located. Rule 7.5(b).

7.5:400   Use of the Name of a Public Official

Primary SC References: SC Rule 7.5(c)
Background References: ABA Model Rule 7.5(c), Other Jurisdictions
Commentary: ABA/BNA 81:3001, Wolfram 14.2.4

The firm name should not include the name of any lawyer holding public office, if the lawyer for any substantial period of time is not "actively and regularly practicing with the firm." Rule 7.5(c).

7.5:500   Misleading Designation as Partnership, etc.

Primary SC References: SC Rule 7.5(d)
Background References: ABA Model Rule 7.5(d), Other Jurisdictions
Commentary: ABA/BNA 81:3001, ALI-LGL 79, Wolfram 14.2.4

A firm name must not be false or misleading as defined by Rule 7.1 and should not falsely state or imply that lawyers are practicing as a partnership or other organization unless such is the case. Rule 7.5(a) & (c). See S.C. Bar Ethics Adv. Op. # 98-31 (firm's letterhead should indicate when attorney practicing with firm is "Of Counsel" and when attorney is practicing as professional association, in order to prevent firm's letterhead from being misleading or deceptive).