PROPOSED ADDITION TO TERMINOLOGY, SCRPC, RULE 407, SCACR

 TERMINOLOGY

"Client" includes any person to whom a lawyer provides legal advice or services as well as any person who gives anything of value to receive advice, services, or products from an enterprise if the enterprise provides any of the advice or services through a lawyer whom the recipient contemporaneously knows to be a lawyer.

"Fee" includes anything of value given by a client for representation by a lawyer.

"Firm" or "law firm" denotes a lawyer or lawyers in a private firm, lawyers employed in the legal department of a corporation or other organization, lawyers associated with an enterprise who represent clients within the scope of that association and lawyers in a legal services organization.  See Comment, Rule 1.10.

"Represent" and "representation" used in the context of a lawyer serving a client denotes providing advice or services to that person.

PROPOSED AMENDMENT TO RULE 8.5, SCRPC, JURISIDICTION, RULE 407, SCACR

(a) A lawyer admitted to practice . . . .

(b) A lawyer giving advice or providing services that would be considered to be the practice of law if provided while the lawyer was affiliated with a law firm is subject to the Rules of Professional Conduct with respect to the giving of such advice or the providing of such services whether or not the lawyer is actively engaged in the practice of law or affiliated with a law firm.  In giving such advice and in providing such services, a lawyer shall be considered to be representing a client for purposes of the Rules of Professional Conduct.

Comment:

The Rules of Professional Conduct apply to a lawyer giving advice or providing services that are not prohibited as the unauthorized practice of law when provided by a non-lawyer but are considered to be the practice of law when provided by a lawyer.  For instance, an accountant giving tax advice to a client is not normally engaged in the unauthorized practice of law.  However, if a lawyer gives the same advice, he or she is giving legal advice and is subject to the Rules of Professional Conduct, whether working for a law firm, an accounting firm, a consulting firm or another enterprise.  Of course, this is also true if the lawyer is giving advice or providing services that would constitute the unauthorized practice of law by a non-lawyer.  In giving both kinds of services, a lawyer is considered to be representing a client for the purposes of determining which of these Rules govern the lawyer's conduct.

This rule does not permit lawyers to engage in activities that would otherwise violate Rules 5.4 and 5.5 or any other of the Rules of Professional Conduct.