South Carolina Lawyer’s ‘Niceties’ Do Not Establish ‘Prospective Client’ Relationships

A federal judge in South Carolina, when ruling on a motion to disqualify counsel, held that a lawyer communicating “[c]ustomary niceties” such as “I hope we get the opportunity to work together” does not form an attorney-client relationship within the meaning of South Carolina’s ethics rules. Specifically, the judge reasoned that the language of the state’s rules regarding duties to prospective clients sets a “stricter standard” than that of ABA Model Rule 1.18, such that “only a subset of individuals who discuss the possibility of forming a client-lawyer relationship” may “claim status as prospective clients.”

South Carolina Ethics Rule 1.18 states: “[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 the relationship.” The court reasoned that the “reasonable expectation” language of the South Carolina rule places a higher burden on a party intending to show that an attorney-client relationship was formed. As such, simply consulting with an attorney about the possibility of retaining him/her as a lawyer is not enough to constitute an attorney-client relationship.

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