SC Bar Professional Responsibility 3 — Questions and Answers
Question 1: Two law partners want to represent opposing parties in the same litigation. Under the imputation rules, this arrangement is:
- Prohibited, because conflicts of one lawyer are imputed to all lawyers in the firm and this direct adversity is generally nonconsentable (Correct answer)
- Permitted if each partner works from a separate office
- Permitted if the partners agree not to discuss the case
- Permitted with a fee-splitting agreement disclosed to both clients
Correct answer: Prohibited, because conflicts of one lawyer are imputed to all lawyers in the firm and this direct adversity is generally nonconsentable
Rule 1.10 imputes conflicts firm-wide, and Rule 1.7 makes assertion of a claim by one client against another in the same litigation nonconsentable.
Question 2: A lawyer who formerly represented a client in a matter may later represent a new client against the former client if:
- The new matter is not the same as or substantially related to the former representation (Correct answer)
- At least two years have passed since the prior representation ended
- The lawyer refunds the fees earned from the former client
- The former client is notified but does not object within 30 days
Correct answer: The new matter is not the same as or substantially related to the former representation
Rule 1.9 bars adverse representation only in the same or a substantially related matter absent the former client's informed written consent.
Question 3: A South Carolina lawyer wants to advertise as a 'specialist' in personal injury law. This is proper only if the lawyer:
- Is certified as a specialist by an organization approved by the South Carolina Supreme Court and identifies the certifying organization (Correct answer)
- Has handled at least 50 personal injury cases
- Includes a general disclaimer on the website
- Has practiced personal injury law for at least 10 years
Correct answer: Is certified as a specialist by an organization approved by the South Carolina Supreme Court and identifies the certifying organization
Rule 7.4 permits claiming specialist certification only when certified by an approved organization that is clearly identified.
Question 4: A client with diminished capacity insists on a decision the lawyer believes is harmful. Under Rule 1.14, the lawyer should:
- Maintain a normal client-lawyer relationship as far as reasonably possible, taking protective action only when the client is at risk of substantial harm (Correct answer)
- Immediately petition for a guardian to be appointed
- Make decisions on the client's behalf without consultation
- Withdraw from the representation at once
Correct answer: Maintain a normal client-lawyer relationship as far as reasonably possible, taking protective action only when the client is at risk of substantial harm
Rule 1.14 directs the lawyer to preserve a normal relationship where possible and take the least restrictive protective action only when substantial harm is at risk.
Question 5: During trial, a lawyer learns that opposing counsel offered a bribe to a sitting juror. The lawyer must:
- Promptly inform the court (Correct answer)
- Confront opposing counsel privately and demand withdrawal
- Move for a mistrial without stating the reason
- Wait to raise the issue on appeal if the verdict is unfavorable
Correct answer: Promptly inform the court
Rule 3.3(b) requires a lawyer who knows of criminal or fraudulent conduct related to the proceeding to take remedial measures, including disclosure to the tribunal.
Question 6: A supervising partner directs an associate to backdate a document for filing. If the associate complies, the associate is:
- Subject to discipline, because following a supervisor's orders does not excuse a clear ethical violation (Correct answer)
- Protected from discipline under the subordinate lawyer rule
- Subject to discipline only if the client is harmed
- Protected as long as the partner signs the document
Correct answer: Subject to discipline, because following a supervisor's orders does not excuse a clear ethical violation
Rule 5.2 shields a subordinate only when acting on a supervisor's reasonable resolution of an arguable question, and backdating is a clear violation.
Question 7: A lawyer serving as a third-party neutral in a mediation must:
- Inform unrepresented parties that the lawyer does not represent them (Correct answer)
- Provide legal advice equally to both sides
- Keep all mediation communications from the parties' attorneys
- File a report with the court describing each party's settlement position
Correct answer: Inform unrepresented parties that the lawyer does not represent them
Rule 2.4 requires a lawyer-neutral to explain to unrepresented parties that the lawyer is not representing them.
SC Bar Professional Responsibility 3
Two law partners want to represent opposing parties in the same litigation.
Under the imputation rules, this arrangement is: