According to the Ethics Advisory Committee, it would not comply with the ethics rules if I were to stop showing up at preliminary hearings for all of my clients. However, there is no published opinion.
The South Carolina Bar has a procedure by which attorneys can request an advisory opinion as to whether a particular course of action would violate the ethics rules or not. The opinions that are issued are published and are searchable online, and it is an invaluable tool – when you are not sure if a certain course of conduct is ethical per the rules, you can look it up. If it is not found in prior published opinions, you can request an opinion from the Ethics Advisory Committee.
Last year I requested an opinion from the Committee as to whether it would violate the rules if I were to stop having preliminary hearings for all of my clients. The question posed was as follows:
I have a primarily criminal defense practice with an active case load of just under 200 cases. Each criminal defendant may request a preliminary hearing pursuant to S.C. Code Section § 22-5-320, and many do so before I undertake their representation. Is it ethical, specifically in reference to South Carolina Rules of Professional Conduct 1.1 (Competence), 1.3 (Diligence), and 3.1 (Meritorious Claims and Contentions), to:
1) Decline to request preliminary hearings in all of my criminal cases, regardless of the facts of the case or whether my client wants me to request a preliminary hearing; and
2) Waive all preliminary hearings that my clients request on their own, regardless of the facts of the case or whether my client wants to go forward with their preliminary hearing?
I was told they accepted the question, and I waited for a response. I waited for an opinion to be published, and eventually I received a phone message from a member of the committee. The message was no, it would not be ethical. We played phone tag for a while, and finally I emailed her and asked what the response was and whether it would be published. The response:
Hey Bobby -
The committee declined to issue a formal opinion, and opted instead for me to contact you and give you the information. What they said was that you should not adopt a “policy” of waiver. Instead, each case must be considered on an individual basis. If waiver for one client is the best thing, then you should do it. However, waiver may not be best for all and you have to look at each client individually to make that determination.
Please let me know if you have any other questions… I will be happy to help clarify if you need it.
So, the answer is no, it is not ethical. Why was it not published?