The 91黑料爆料 Ethics Advisory Committee provides the full text of all ethics opinions since 1990 online.
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Absent any obligation to retain a client鈥檚 file imposed by law, court order, or rules of a tribunal, a lawyer shall securely store a client鈥檚 file for a minimum of six years after completion or termination of the representation unless: (1) the lawyer delivers the file to the client or the client鈥檚 designee; or (2) the client authorizes destruction of the file in a writing signed by the client, and there are no pending or threatened legal proceedings known to the lawyer that relate to the matter. Rule 1.15(i).
A lawyer may convert files to an electronically stored format, provided the lawyer is capable of producing a paper version if necessary. A lawyer who elects to destroy files shall do so in a manner which protects client confidentiality.听
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Rule 1.16(d) provides that upon termination of representation, a 鈥渓awyer shall take steps to the extent reasonably practicable to protect a client鈥檚 interests,鈥� including by 鈥渟urrendering papers and property to which the client is entitled.鈥� Failure to timely return a client file may subject a lawyer to discipline under Rule 1.16(d). See, e.g., In re Melnyk, 433 S.C. 393, 395, 859 S.E.2d 257, 258 (2021).
The SC Rules of Professional Conduct do not specify what constitutes 鈥減apers 鈥� to which the client is entitled.鈥� In the absence of a specific agreement between the client and the lawyer, the 鈥渃lient file鈥� that must be returned includes all materials provided by the client or obtained by the lawyer in the course of the representation; correspondence sent or received by the lawyer on the client鈥檚 behalf; materials prepared in final form by the lawyer, including filed and unfiled pleadings and legal memoranda; research; and notes of interviews and meetings. See SC Ethics Op. 02-11; SC Ethics Op. 92-37; John Freeman, Turning Over 鈥淭he File,鈥� S.C. Law. (July-Aug. 1998). The lawyer is not required to provide notes regarding the lawyer鈥檚 personal impressions of the client or administrative materials related to the representation. See SC Ethics Op. 02-11; SC Ethics Op. 92-37; ABA Formal Op. 471, at 4 (July 1, 2015).
The lawyer may (and should as a best practice) retain a copy of all documents produced in response to client鈥檚 request for the file. Absent the client鈥檚 prior agreement, the lawyer should bear the cost of copying documents to which the client is legally entitled, except that the lawyer may charge the actual cost of making additional copies of documents previously provided. See In re Massey, 357 S.C. 439, 443, 594 S.E.2d 159, 161 (2004); SC Ethics Op. 92-37.
Rule 1.16(d) further provides that upon termination of representation, the lawyer 鈥渕ay retain papers relating to the client to the extent permitted by other law.鈥� See also id. Comment 9 ( 鈥淭he lawyer may retain papers as security for a fee only to the extent permitted by law.鈥�) South Carolina recognizes a lawyer鈥檚 common law right to assert a retaining lien on a client鈥檚 file and that assertion of such a lien 鈥渋s not a per se鈥� ethical violation. In re Anonymous, 287 S.C. 250, 252, 335 S.E.2d 803, 804 (1985). 鈥淎n attorney must, however, consider whether the assertion of a retaining lien in a particular case would be unethical.鈥� Id. At a minimum, a lawyer who has been discharged for cause has no right to assert a retaining lien. See id. at 252 n.1, 335 S.E.2d at 804 n.1. At the other end of the spectrum, a retaining lien is justified when 鈥渢he client is financially able but deliberately refuses to pay a fee [the client] has 91黑料爆料arly agreed upon and is due.鈥� In re Tillman, 319 S.C. 461, 464, 462 S.E.2d 283, 285 (1995). In all other cases, whether assertion of a lien is ethical must be determined on a case-by-case basis. See id. (identifying factors to be considered in determining whether to assert a retention lien).
The South Carolina Supreme Court has held that failure to pay a court reporter鈥檚, mediator's or expert witness's fee in a timely fashion is a violation of Rules 4.4(a) (rights of third parties) and/or 8.4(e) (engaging in conduct prejudicial to the administration of justice), regardless of whether the client has agreed to be responsible for the costs of litigation. See, e.g., In re Brooker, 433 S.C. 232, 235, 857, S.E. 2d 553, 554 (2021); In re Jackson, 365 S.C. 176, 617 S.E.2d 123 (2005). Payment of other persons providing services in furtherance of an attorney鈥檚 request, including, but not limited to, mediators and expert witnesses, are likely analogous. Cf. In re Johnson, 385 S.C. 501, 504, 685 S.E. 2d 610, 611 (2009) (noting failure to pay expert witness, along with other financial misconduct, in imposing disbarment).
The lawyer has a continuing duty of confidentiality for former clients that is set forth in Rule 1.9. Just like the duty of confidentiality for current clients, this duty for former clients is different from, and is broader than, the attorney-client privilege or the work product doctrine. Pursuant to Rule 1.9, which references 1.6, disclosure would not be permitted without the client鈥檚 permission or a court order. The lawyer should assert the protections of Rule 1.9 on behalf of the former client in response to the subpoena and refuse to produce any documents absent a further court order compelling production.
When, in the course of representation, a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute. Disputed property shall be kept separate until one of the following occurs:
(i) the parties reach an agreement on the distribution of the property;
(ii) a court order resolves the competing claims; or
(iii) the lawyer files an action and a court resolves the dispute; or
(iv) if disbursement to the client is not otherwise prohibited by law or court order, the lawyer may provide written notice to the third party informing the third party that the lawyer may distribute the property to the client unless the third party files a civil action and provides the lawyer with written notice and a copy of the filed action within 90 calendar days of the date of service of the lawyer's notice. If the lawyer does not receive written notice of the filing of a civil action from the third party within the 90-day period, the lawyer may distribute the property to the client after consulting with the client regarding the advantages and disadvantages of disbursing the disputed property and obtaining the client's written informed consent to the distribution.
(v) A lawyer may also disburse funds claimed by third parties if the lawyer determines that the claim is not a matured legal or equitable claim under applicable law1. The lawyer does so at the risk that a subsequent tribunal may determine that the lawyer鈥檚 judgment was erroneous. A lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party. (1.15(e) and Comment 4)
If the lawyer is notified in writing of a civil action filed within the 90-day period, the lawyer shall continue to hold the property unless and until the parties reach an agreement on distribution of the property or a court resolves the matter.
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Generally, no. The preparation and filing/recording of deeds is considered the practice of law in South Carolina and, therefore, may only be done under the supervision of a lawyer licensed to practice in South Carolina, unless one of the exceptions of Rule 5.5(c) applies. See Boone v. Quicken Loans, Inc., 803 S.E. 2d. 707 (S.C. 2017).
A lawyer shall not disburse funds from a trust account unless the funds to be disbursed have been deposited in the account and are collected funds and the lawyer has not received any notice indicating the funds were not yet credited to the trust account. Notwithstanding that requirement, a lawyer may disburse funds from a trust account at the lawyer鈥檚 risk when the deposit is made:
If a deposit is not collected, a lawyer is obligated to deposit replacement funds in the account as soon as practical, but no more than five business days after notice to lawyer. See Rule 1.15 and comments 5 鈥� 8 thereto for more specific information and instruction. Additionally, see Rule 417, SCACR regarding Financial Recordkeeping.
See Ethics Opinion 18-02.
A lawyer is obligated to 鈥渁bide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.鈥澨齊ule 1.2(a).听听Further, a lawyer 鈥渟hall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive.鈥澨齏hen a client cannot be located, however, a lawyer may take only such action as is impliedly authorized to carry out the representation.听听Rule 1.2(a).听Such action would necessarily include diligent efforts to locate a client who has effectively disappeared.听Continued inability to locate and communicate with the client would eventually constitute 鈥済ood cause鈥� for withdrawal from representation pursuant to Rule 1.16(b).
When the relationship between lawyer and client terminates, regardless of reason, the lawyer must take steps to the extent reasonably practicable to protect a client鈥檚 interests.听Rule 1.16(d).听That routinely includes return of all files, funds, and any other property belonging to the client.听The responsibility for accounting for unclaimed escrow funds is indefinite.听Accordingly, when a client cannot be located, the lawyer is tasked with holding the client鈥檚 property until such time as either the client, or some person or entity authorized to speak on the client鈥檚 behalf, directs further action by the lawyer.
Alternatively, after diligent attempts by the lawyer to disburse the funds to the rightful owner thereof have proved unsuccessful for the requisite period of time, the lawyer may follow the statutory procedure set forth in the Uniform Unclaimed Property Act, S.C. Code Ann. 搂 27-18-10 (1976), et seq. That statute allows for funds to be deemed abandoned if they remain unclaimed for longer than five years. In compliance with that statute, such funds may then be delivered to the custody of the State. See Ethics Advisory Opinion 02-05.
Upon termination of representation, a lawyer must refund "any advance payment of fee or expense that has not been earned or incurred" Rule 1.16(d). That is true regardless of label, including fees identified as "nonrefundable," although a "lawyer may retain a reasonable nonrefundable retainer." Id. (Also, see Rule 1.5(a) for the factors to consider in determining reasonableness of a fee.)
The language describing "nonrefundable" arrangements varies, and includes terms such as flat fee, fixed fee, earned on receipt, or nonrefundable retainer. Regardless of label, a lawyer may enter a fee arrangement that allows the lawyer to treat fees paid in advance of performing legal services as immediately earned only if the fee agreement is reduced to writing. The written agreement must notify the client of the following:
(1) the nature of the fee arrangement and the scope of the services to be provided;
(2) the total amount of the fee and the terms of payment;
(3) that the fee will not be held in a trust account until earned;
(4) that the client has the right to terminate the lawyer-client relationship and discharge the lawyer; and
(5) that the client may be entitled to a refund of all or a portion of the fee if the agreed-upon legal services are not provided. RPC, Rule 1.5(f).
Can a South Carolina lawyer pay an out of state lawyer a referral fee for sending client(s) to the South Carolina lawyer?
No, this would be an impermissible referral fee. A lawyer may only pay reasonable costs of advertisements or communications permitted by the Rules, the usual charges of a legal service plan or a not-for-profit referral service, or the purchase of a law practice in accordance with the Rules. If the payment requested by the out of state lawyer is a portion of the fees paid to the South Carolina lawyer, it would be permissible only if in compliance with Rule 1.5(e). See Rules 7.2(c) and 1.5(e).
The 91黑料爆料听Ethics Advisory Committee provided this collection of the most commonly submitted questions and its summary opinion on the ethical considerations raised by these issues that arise on a frequent basis. Just as with the Committee鈥檚 formal opinions, however, please be aware that this committee has no disciplinary authority. Lawyer discipline is administered solely by the South Carolina Supreme Court through the Office of Disciplinary Counsel and the Commission on Lawyer Conduct. As such, the information presented is merely advisory in nature, although it is intended to assist the reader in finding relevant controlling authority in many instances, including the for lawyers, which can be found in their entirety within Rule 407 of the . Rule references are to the South Carolina Rules of Professional Conduct as existing at the time of the drafting unless otherwise stated.