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South Carolina Legal Ethics
1.4:100 Comparative Analysis of South Carolina Rule
• Primary SC References: SC
Rule 1.4. On the duty to communicate with disabled clients SC
Rule 1.14. On the duty to communicate regarding client funds or property,
see SC Rule 1.15. On the duty to
communicate with multiple clients regarding aggregate settlement offers see
SC Rule 1.8(g).
• Background References: ABA Model Rule 1.4, Other Jurisdictions
Rule 1.4 did not have an exact counterpart in the Code of Professional Responsibility.
1.4:200 Duty to Communicate with Client
Reasonable communication with a client is not only good for client relations, but is the ethical responsibility of a lawyer. Rule 1.4 requires generally that a lawyer keep the client reasonably informed regarding the status of the matter and that the lawyer respond promptly to reasonable client requests for information. Thus, a lawyer may be disciplined for misconduct as basic as failing to return telephone calls or correspondence. See, e.g., In re Matson, 334 S.C. 94, 512 S.E.2d 115 (1999) (failure to return phone calls and respond to inquiries about client's case and departure from South Carolina without informing client of her relocation); In re Larkin, 320 S.C. 512, 466 S.E.2d 355 (1996) (failure to return calls over two-month period or to advise client of court date); In re Chastain, 316 S.C. 438, 450 S.E.2d 578 (1994).
A lawyer must communicate adequately to inform the client of the client's legal position. For example, a lawyer retained to represent an estate was reprimanded in part for failing to inform the client of the legal consequence of the decedent having died intestate. See In re Gates, 295 S.C. 516, 369 S.E.2d 841 (1988). Similarly, a lawyer's failure to inform partners adequately about the affairs of their partnership resulted in discipline. See In re Brown, 308 S.C. 224, 417 S.E.2d 590 (1992). A lawyer who failed to notify a bankruptcy client of critical creditor meetings was disciplined after the client's action was dismissed because of the failure to appear. In re Fulton, 320 S.C. 95, 463 S.E.2d 319 (1995). After a verdict a lawyer should timely inform the client if the lawyer believes that no grounds exist for an appeal or rehearing. In re Warder, 316 S.C. 249, 449 S.E.2d 489 (1994).
A lawyer should not enter into any agreement with a third party that prohibits the lawyer from communicating directly with the client. For example, when a third-party hires the lawyer to represent the client, the lawyer cannot agree to communicate with the client only through the third-party. See S.C. Bar Ethics Adv. Ops. ## 90-33, 91-36, 91-32.
1.4:300 Duty to Consult with Client
The duty to communicate with the client extends beyond simply a duty to keep the client informed as to the progress of a matter. Rule 1.4(b) requires that the lawyer consult sufficiently with the client so as to permit the client to make informed decisions regarding the representation. See In re Cole, 286 S.C. 548, 335 S.E.2d 364 (1985) (lawyer disciplined under prior code for failing to update client adequately and failing to consult with client on matters requiring the client's consent). When advising a client, the lawyer should be candid, SC Rule 2.1, and "should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client." SC Rule 2.1, cmt.
1.4:400 Duty to Inform the Client of Settlement Offers
A lawyer should inform the client of any settlement offer received. See In re Warder, 316 S.C. 249, 449 S.E.2d 489 (1994). Likewise, a lawyer may not settle a matter without consulting the client and obtaining the client's consent. Rule 1.2(a); see In re Ring, 320 S.C. 249, 464 S.E.2d 328 (1995), In re Bosserman, 298 S.C. 198, 379 S.E.2d 130 (1989), In re Edwards, 323 S.C. 448, 448 S.E.2d 547 (1994). See also Crowley v. Harvey & Battey, 327 S.C. 68, 488 S.E.2d 334 (1997) (liability for negligent advice regarding settlement).
In a criminal case, the lawyer must consult with the client and abide by the client's decision specifically as to the appropriate plea, whether to waive a jury trial, and whether the client will testify. Rule 1.2(a). In both civil and criminal matters, it is said that the lawyer generally must abide by the client's decision regarding objectives and consult with the client regarding the means by which to achieve those objectives. Id. The comment to Rule 1.2 recognizes the difficulty at times of distinguishing means from objectives and assigns generally to the lawyer issues of tactics, while deferring to client decisions regarding expenses to be incurred and to client concerns for third persons who might be affected adversely.