When may an out-of-state attorney practice law in South Carolina? (Adopted March 17, 2006)
Answer: With respect to ethics issues, the practice of law by out-of state lawyers in South Carolina is generally prohibited by Rule 5.5. Out-of-state lawyers may provide services in South Carolina under four exceptions set forth in Rule 5.5(c), and two exceptions in Rule 5.5(d). Apart from these exceptions, a lawyer not admitted to practice in South Carolina may not establish an office or have systematic and continuous presence in the jurisdiction for the practice of law; or hold out to the public or represent that the lawyer is admitted to practice in the jurisdiction. Rule 5.5(b); see comment 4.
The four exceptions of rule 5.5(c) allow out-of-state lawyers to provide services in the state on a temporary basis, but do not permit a lawyer to open an office or otherwise have a systematic and continuous presence in the state without being admitted. (The exceptions of Rule 5.5(d), explained below, may allow an out-of-state lawyer both to have an office and be present in South Carolina on a systematic and continuous basis.) The Rule 5.5(c) exceptions allow practice by out-of-state lawyers under circumstances that do not create an unreasonable risk to the interests of their clients, the public or the courts. Paragraph (c) identifies four such circumstances, but the fact that conduct is not so identified does not imply that the conduct is or is not authorized. See comment 5. As comment 6 indicates, temporary services may be recurring and may continue over a long period of time. Comment 7 deals with what the term “admitted” means.
The first three exceptions are quite specific: an out-of state lawyer may practice: (i) in association with a lawyer who is admitted in South Carolina, 5.5(c)(1); (ii) in connection with a proceeding in which the lawyer reasonably anticipates to be admitted pro hac vice, 5.5(c)(2); and (iii) in connection with an alternative dispute resolution (ADR) proceeding involving an existing client for which South Carolina does not require pro hac vice admission, 5.5(c)(3). See comments 8-12.
A lawyer providing legal services in ADR matters must comply with South Carolina Appellate Court Rule 404, discussed below. A lawyer who seeks to provide services in more than three ADR matters in a 365-day period is presumed to be providing such services on a regular, rather than a temporary, basis and thus will not come under the exception of Rule 5.5(c)(3). See comment 12.
The fourth exception, 5.5(c)(4), is broad and somewhat vague, covering legal services that "arise out of or are reasonably related to the lawyer's representation of an existing client in a jurisdiction in which the lawyer is admitted to practice," but are not within the first three exceptions. These services include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers. The lawyer’s client may have been previously represented by the lawyer or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer’s work for the client might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client’s activities or the legal issue involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. See comment 14.
Under the two exceptions provided in Rule 5.5(d)(1) and (d)(2), a lawyer who is admitted to practice law in another jurisdiction may establish an office or other systematic or continuous presence in South Carolina without admission to practice law generally in this state.
Rule 5.5(d)(1) applies to in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer, but does not authorize the provision of personal legal services to the employer’s officers or employees or services for which pro hac vice admission is required. See comments 16-17. South Carolina Appellate Court Rule 405 provides for limited certificates of admission for lawyers admitted in another state to enable them to provide legal services to corporate (or other entity) employers. Admission under Rule 405 gives the attorney the right to appear before certain tribunals, while Rule 5.5(d)(1) does not.
A lawyer not admitted to practice in South Carolina may provide legal services in the state under Rule 5.5(d)(2) when authorized by federal law or by other law of the jurisdiction, which includes statute, court rule, executive regulation or judicial precedent. See comment18.
For the application of other rules to lawyers who are practicing pursuant to Rules 5.5(c) or (d), see comments 19-21.
South Carolina Appellate Court Rule 404 provides detailed standards and procedures for admission of lawyers admitted to practice in other jurisdictions "to appear pro hac vice in any action or proceeding before a tribunal of this state if an attorney admitted to practice law in South Carolina is associated as attorney of record." The lawyer must file the application, accompanied by a $250 fee for each matter, with the Office of Bar Admissions. A lawyer may not use the pro hac vice rule to appear in court on a regular basis and thereby circumvent the normal admissions process. South Carolina Medical Malpractice Joint Underwriting Assn. v. Froelich, 297 S.C. 400, 377 S.E.2d 306 (1989).
Rule 404 allows out-of-state lawyers to appear pro hac vice in arbitrations, mediations and other ADR proceedings, but provides that a lawyer who “seeks to provide legal services pursuant to Rule 5.5(c)(3) in more than three matters in a 365-day period shall be presumed to be providing legal services on a regular, not temporary, basis." Rule 404(h). Out-of-state lawyers seeking pro hac vice admission in ADR matters must also file a verified statement with the Office of Bar Admissions and pay a $250 fee for each matter. Rule 404(i).
SCRPC Rule 5.5 Wilcox and Crystal, Annotated South Carolina Rules of Professional Conduct, pp. 281 and 282.
For more information regarding when an out-of-state attorney may file a deed, please see FAQ #7