The South Carolina Rules of Professional Conduct provide specific provisions for attorneys practicing in more than one jurisdiction. Rule 5.5 (Unauthorized Practice of Law; MJP Practice of Law) and Rule 8.5 (Disciplinary Authority; Choice of Law) encompass the Multijurisdictional Practice Rrules (MJP) (not including rules relating to attorneys licensed in foreign countries). Please see the about MJP General page for additional information.
Overall, Rule 5.5 provides various safe harbors for out-of-state attorneys. Rule 8.5 recognizes that attorneys practicing in more than one jurisdiction will likely be subject to conflicting admission rules, court rules, and rules of professional conduct. Rule 8.5 attempts to minimize such conflicts by clarifying the set of rules governing the attorney’s conduct. In order to avoid the unauthorized practice of law, attorneys should consult the MJP rules, South Carolina’s admission rules, and the rules regulating the attorney’s home jurisdiction. The comments to the MJP rules further clarify and provide examples of permitted practice.
RULE 5.5 (Unauthorized Practice of Law; MJP Practice of Law)
Rule 5.5, particularly 5.5(c) and (d), and the applicable comments allow active attorneys licensed in other jurisdictions to practice in South Carolina on a temporary basis and to practice as South Carolina House Counsel. South Carolina’s Rule 5.5 is substantially similar to the ABA Model Rule 5.5.
Permitted temporary practices include:
- Pro Hac Vice. Legal services that are undertaken in association with a lawyer who is admitted to practice in South Carolina and who actively participates in the matter. (5.5(c)(1)).
- Reasonable Expectation of Pro Hac Vice Admission. (5.5(c)(2)).
- ADR. Legal services that are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in South Carolina or another jurisdiction. The services must arise out of or reasonably relate to the attorney’s practice in a jurisdiction where the attorney is admitted to practice and the services do not require South Carolina Pro Hac Vice admission. (5.5(c)(3)).
Pursuant to Rule 404(h) and (i) of the South Carolina Pro Hac Vice rules, attorneys seeking to provide legal services pursuant to MJP Rule 5.5(c)(3) relating to arbitrations and mediations in more than three matters in one calendar year are presumed to be providing legal services on a regular, and not temporary basis. Attorneys must file a verified statement with the Office of Bar Admissions stating that the attorney has not filed more than three statements in a 365-day period, include a fee, and must serve the statement on opposing counsel, if known. If opposing counsel is unknown at the time the statement is filed, the statement must be filed on opposing counsel within 10 days of learning the opposing counsel’s identity.
- Practice with a Reasonable Relation to the Attorney’s Home Jurisdiction Practice. Legal services that are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably relate to the attorney’s practice in a jurisdiction where the attorney is admitted. (5.5(c)(4)).
House attorneys may practice under the South Carolina House Counsel Rules. South Carolina’s MJP rule also exempts house attorneys from the unauthorized practice of law and the prohibition against establishing an office or other systematic and continuous presence in South Carolina.
- Attorneys may provide legal services to the attorney’s employer or its organizational affiliates so long as the legal services are not those for which a forum requires South Carolina Pro Hac Vice admission. (5.5(d)(1)).
Comment 16 states that the rule does not authorize the provision of personal legal services to the employer’s officer or employees. The rule applies to in-house corporate attorneys, government attorneys, and others who are employed to render legal services to the employer.
Practice Authorized By Law
Attorneys may also render services in South Carolina authorized by South Carolina or federal law. (5.5(d)(2)). Practice under this MJP rule exempts attorneys from the prohibition against establishing an office or other systematic and continuous presence in South Carolina.
RULE 8.5 (Disciplinary Authority; Choice of Law)
South Carolina’s Rule 8.5 is substantially similar to the ABA Model Rule 8.5. The rules contain an additional comment relating to practices that are allowed by non-lawyers but may be the unauthorized practice of law when a lawyer engages in the same conduct.
Disciplinary Authority. A lawyer admitted to practice in South Carolina is subject to the disciplinary authority of South Carolina, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in South Carolina is also subject to the disciplinary authority of South Carolina if the lawyer provides or offers to provide any legal services in South Carolina. A lawyer may be subject to the disciplinary authority of both South Carolina and another jurisdiction for the same conduct. (8.5(a)).
Choice of Law. The South Carolina Rules of Professional Conduct are applied as follows:
For conduct in connection with a matter pending before a tribunal, the applicable rules are those of the jurisdiction where the tribunal sits, unless the rules of the tribunal provide otherwise. (8.5(b)(1)).
For any other conduct, the applicable rules are those of the jurisdiction where the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction will be applied to the conduct. A lawyer is not subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction where the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur. (8.5(b)(2)).
A lawyer giving advice or providing services that would be considered to be the practice of law if provided while the lawyer was affiliated with a law firm is subject to the Rules of Professional Conduct with respect to the advice or services whether or not the lawyer is actively engaged in the practice of law or affiliated with a law firm. In giving such advice and services, a lawyer is considered to be representing a client for the purposes of the Rules of Professional Conduct. (8.5(c)).