The intent is to allow lawyers from other jurisdictions to work remotely here
I begin this blog by admitting that I wouldn’t have thought this Supreme Court Order was a big deal if the brilliant Teri Callen (Chicago Title lawyer and USC Law School Adjunct Professor) had not pointed out its significance.
On March 15, The South Carolina Supreme Court amended Comment 4 to Rule 5.5, South Carolina Rules of Professional Conduct, Rule 407, by adding the following sentence at the end of the comment:
“A lawyer admitted in another jurisdiction does not establish an office or other systematic presence in this jurisdiction for the practice of law by engaging in remote work in this jurisdiction, provided the lawyer’s legal services are limited to services the lawyer is authorized to perform by a jurisdiction in which the lawyer is admitted, and the lawyer does not state, imply, or hold out to the public that the lawyer is a South Carolina lawyer or is admitted to practice law in South Carolina.”
This type of remote work in South Carolina by out-of-state lawyers was formerly only allowed in the event of a state of emergency, as in a global pandemic. Now, a lawyer admitted in New York can live, permanently or temporarily, in Hilton Head and practice law from her computer and telephone. The South Carolina Bar had requested an amendment to this comment, and the Court adopted a modified version of the Bar’s proposal.
Teri has previously taught us that a South Carolina lawyer working remotely in another state might be participating in the unauthorized practice of law. A Charleston lawyer who decides to live, permanently or temporarily, in the mountains, should check the court rules of that state to determine whether remote work is considered UPL in that state.
Remember that our Supreme Court adamantly told us in In re Lester* that a lawyer must be physically present for a closing. Prior to Lester, a closing attorney might be on vacation and available by telephone to answer closing questions. Lester called a halt to that practice.
The Court didn’t weigh in on whether a South Carolina lawyer is allowed under our rules to work remotely in another state where he is not licensed without running afoul of our rules. Our Court probably wouldn’t touch that issue because of the implications and unintended consequences that might occur. For example, if it is permissible for a South Carolina lawyer to work remotely in another state, is it also permissible to perform a South Carolina closing there?
There are land mines everywhere, lawyers. I feel as if I end 9 out of 10 blogs with the thought that everyone needs to be careful out there. This blog falls in the “be careful” category.
* 353 S.C. 246, 578 S.E. 2d 7 (2003).