SC Lawyer, July 2004, #1. Staying ahead of the ADR curve in South Carolina.

• Author: By Van Anderson and Biff Sowell

South Carolina Lawyer

2004.

SC Lawyer, July 2004, #1.

Staying ahead of the ADR curve in South Carolina

South Carolina LawyerJuly 2004Staying ahead of the ADR curve in South CarolinaBy Van Anderson and Biff SowellAs Alternative Dispute Resolution moves from the margin to the mainstream of general acceptance and common practice, it likewise becomes more integrated into the lawyer's several roles as advisor, counselor and representative of clients.

Introduction

This is an exciting time to be a part of the legal system in South Carolina because it is on the verge of so much change. With the revised South Carolina Rules of Professional Conduct (SCRPC) nearing the final stages of promulgation and the implementation of a statewide court-annexed Alternative Dispute Resolution program possibly right around the corner, lawyers and judges alike can expect a continuing shift in the practice of law and dispute resolution. With the arrival of such changes comes the need to adapt to and embrace them. This article discusses some of these issues and offers suggested responses.

Competent representation

The fundamental first requirement in the SCRPC is competent representation. "Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." S.C. App. Ct. R. 407, R. 1.1 (2004). With respect to mediation, every attorney should have an understanding about the fundamental rules pertaining to mediation and a basic comprehension of negotiation tactics.

Without this initial level of competence about ADR, it is unlikely that attorneys will be able to comply with other duties germane to ADR discussed later in this article, particularly relating to the duty to advise. More concretely, exceptionally inept or inexperienced attorney-negotiators can reach unfavorable settlements for their clients and therefore become in technical breach of the SCRPC. To satisfy the requirement of competent representation, the SCRPC encourage lawyers to "engage in continuing study and education." Id. at R. 1.1 cmt. 3. The Supreme Court's Commission on Alternative Dispute Resolution housed at the South Carolina Bar is dedicated to providing such a service and is a rich source of information concerning ADR. For more details about the Commission or CLE opportunities for ADR, visit www.scbar.org/adr or contact Andrew Walsh at andrew.walsh@scbar.org or (803) 799-6653, ext. 159.

The duty to advise about ADR

Currently, there is at most an implied duty to advise about ADR. This implied duty is derived from four sources within the SCRPC. First, the preamble to the SCRPC states that "a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications." Id. at pmbl. Second, "a client also has a right to consult with a lawyer about the means to be used in pursuing th[e] objectives [of litigation]." Id. at R. 1.2 cmt. 1. Third, "a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Id. at R. 1.4(b). Finally, Rule 2.1 states that "in rendering advice, a lawyer may refer not only to law but to other considerations . . . that may be relevant to the client's situation." Id. at R. 2.1.

These statements point to an implied duty to inform and educate a client about ADR when the lawyer...