About a week or so ago, I learned something new about South Carolina’s ethics rules – thanks to the law-student-powered blog of the University of Miami (FL) School of Law, Legal Ethics in Motion. They wrote about a South Carolina federal court case in which a motion to disqualify premised on South Carolina Rule 1.18 was denied. I learned a second new thing about South Carolina’s ethics rules in reading that opinion.
The first new thing I learned about South Carolina was that it has a weird-ish wrinkle in its Rule 1.18(a).
Most jurisdictions, including Tennessee, follow the lead of ABA Model Rules and have a version of Rule 1.18(a) that defines a “prospective client” as someone who “consults with” or “discusses with” a lawyer the “possibility of forming a client-lawyer relationship with respect to a matter.”
South Carolina, however, takes a different approach. Its RPC 1.18(a) reads as follows:
A person with whom a lawyer discusses the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client only when there is a reasonable expectation that the lawyer is likely to form a relationship.
Now, that “only when there is a reasonable expectation that the lawyer is likely to form a relationship” language can have some obvious benefits in avoiding having to deal with certain situations where most folks would agree that the array of protections afforded to a person as a prospective client under RPC 1.18 just shouldn’t come into existence. Like, if the only reason someone is reaching out is to get a lawyer disqualified – usually just dealt with through language in the Comment — this language should suffice to prevent RPC 1.18 protection from coming to pass. Likewise, if say a person a lawyer has never met before calls out of the blue and starts running on at the mouth about their case before the lawyer could get a word – like “stop” – in edgewise, this rule’s “reasonable expectation” and “likely to form” language would be a very good tool for shutting down any RPC 1.18 argument.
But, even having only just learned of the existence of such language, I was still surprised to then learn what the federal court in South Carolina thought it meant. Instead of resolving a disqualification motion on the basis that there didn’t seem to be any “significantly harmful” information that was ever transmitted, the court concluded that a series of events spanning a voice mail message, a telephone conference about a possible engagement, and an email exchange thereafter with a South Carolina lawyer was not sufficient to ever create the existence of a prospective client at all.
The court’s own description of the events is really all that should be needed to understand my surprise:
On July 7, 2016, Plaintiff’s attorney Jay Wolman (Wolman) called and left a voice mail for Wyche attorney Tally Parham Casey (Casey) about a possible engagement in a case. Wolman and Casey discussed the possibility of Wyche’s serving as local counsel for Plaintiff in this matter in a telephone conference on July 11, 2016. Wolman subsequently emailed Casey on July 11, 2016, and provided Plaintiff’s and Gari’s names “[f]or conflict purposes” and requested a fee agreement “[i]f there is no conflict.” Casey responded on that same day with applicable hourly rates and stated, “I hope we get the opportunity to work together.” On July 12, 2016, however, Casey sent Wolman an email stating, “I’m afraid we have a conflict and will not be able to assist you with this matter.”
Pardon the wordplay and all, but I’m not sure it is “likely” that a multitude of judges would agree with how that particular line was drawn on the RPC 1.18(a) front in this particular South Carolina decision.
While I am on the subject of South Carolina and its ethics rules, one other development is worthy of mention here. South Carolina’s Supreme Court has issued a public censure against an Arkansas lawyer for his role regarding using investigators to “pose as customers in an effort to obtain evidence to prove that the defendant was violating the intellectual property rights of the plaintiffs.” The Court explained that the Arkansas lawyer’s investigators “made false statements to the defendant’s employees and used tactics designed to prod the employees into making statements about the product,” and also “tape-recorded these conversations without notice to the employees.”
Many, many moons ago (2012), I wrote an article for an ABA publication called Landslide about the ethical problems for lawyers stemming from investigations relying on pretext in intellectual property matters. I don’t think I’m bragging when I say that billions of people never read that article. While it is probably a pretty safe bet to guess that this Arkansas lawyer was among the billions of people who didn’t read it, I can’t actually call that something I truly learned today because the conduct for which he is now being punished in 2017 with that public reprimand actually took place back in 2009.
Thus, if I’m flailing around trying to add one more thing to my list of nuggets learned today, it would have to be this, the South Carolina Court was actually a bit kind to this Arkansas lawyer in terms of how it described the problems. It pointed out, in issuing a public reprimand against the lawyer in question, that the lawyer was “unaware that secret tape-recording, pretexting, and dissembling were in violation of the South Carolina Rules of Professional Conduct.” Had it wanted to be a bit more damning in its explanation of events, it could have pointed out that the South Carolina rules upon which the discipline against the Arkansas lawyer rested (RPC 4.4(a) and RPC 8.4) say the same thing that Arkansas’s own version of those rules say and, thus, that it probably would not be a stretch to say that Arkansas’s ethics rules are also violated by (at least) pretexting and dissembling.