SC Lawyer, Jan. 2005, #3. A clearer understanding: South Carolina's Ethics 2000.

AuthorBy Timothy W. Bouch

South Carolina Lawyer


SC Lawyer, Jan. 2005, #3.

A clearer understanding: South Carolina's Ethics 2000

South Carolina Lawyer January. 2005

A clearer understanding: South Carolina's Ethics 2000By Timothy W. BouchIn the spring of 1997, the American Bar Association commissioned a comprehensive study and evaluation of the Model Rules of Professional Conduct. The Commission on the Evaluation of the Rules of Professional Conduct (subsequently known as Ethics 2000) was charged with a complete review of the rules with an eye to promoting national uniformity and consistency, reflecting the developments in the law and in the legal profession. This evaluation revealed substantive shortcomings in some rules and a lack of clarity in others. Advancing case law under varying facts underscored the need for review and change. The Commission was aided in its work by the extensive and innovative work of the ALIs Restatement of the Law Governing Lawyers then reaching completion.

The Commission's final report was submitted to the ABA House of Delegates in August 2001. The House began its consideration at the 2001 ABA Annual Meeting and completed it in February 2002. The ABA House adopted all of the Commission's recommendations with a handful of important exceptions. With a new set of Model Rules in place, in the spring of 2002 Chief Justice Toal appointed the South Carolina Rules Commission (SC Commission) to study and recommend to the Court changes in light of the Ethics 2000 report and the adoption of the revised Model Rules by the ABA.

In approaching its work, the SC Commission was mindful of the changes to the legal profession, both internal and external, and the profession's expanded scope. The complexity of client activities, advancing technology and competitive pressures on lawyers and their firms presented challenges that a rules revision could help address. These concerns included questions of specialization, multidiscipline and multijurisdictional practice, advertising and the use of in-house counsel. The SC Commission examined questions on traditional jurisdictional limits on law practice, allocation of authority between the attorney and client, fee sharing, mobility of lawyers and the special status of government lawyers. The parameters of traditional concepts of confidentiality, civility and conflicts of interest were analyzed along with new issues of law firm responsibility for its constituent lawyers.

The SC Commission decided to retain the basic concepts and structure of the Model Rules. As a starting point, the ABA Ethics 2000 report and the rules subsequently adopted by the ABA House of Delegates were utilized as a foundation against which the present South Carolina rules, case law and commentary were measured. A number of significant changes are proposed to the existing rules. Many suggested changes were not recommended unless significant clarification and amplification to the commentary provided clear guidance in applying and interpreting the rule. Purely stylistic changes were generally rejected. Aspirations or "good practice" commentary were also largely rejected as being out of place in a...

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