The Supreme Court of South Carolina

Re: Amendments to Rules 407; 413; 428; 501; and 502, South Carolina Appellate Court Rules

Appellate Case No. 2019-000372

 

ORDER

The Office of Commission Counsel, on behalf of the Commission on Lawyer Conduct and the Commission on Judicial Conduct, has submitted a number of proposed amendments to the Rules for Lawyer Disciplinary Enforcement, which are contained in Rule 413 of the South Carolina Appellate Court Rules; and the Rules for Judicial Disciplinary Enforcement, which are contained in Rule 502 of the South Carolina Appellate Court Rules. 

The amendments to Rule 413 and Rule 502: (1) detail the process for a lawyer or judge to appear before disciplinary counsel to respond to questions; (2) clarify that the official transcript of proceedings is prepared by the Commission court reporter; (3) detail how disciplinary counsel alerts the Supreme Court when a complaint is filed against a lawyer or judge during review of another matter by the Supreme Court; (4) restrict additional filings by any party following a motion for reconsideration of an order placing a lawyer or judge on interim suspension; (5) restructure the rule detailing the process for a lawyer to seek reinstatement following a suspension of less than nine months; (6) require that a lawyer seeking reinstatement after suspension of nine months or more must reimburse, or enter into a payment plan to reimburse, the Lawyers' Fund for Client Protection for all claims paid on the lawyer's behalf; (7) clarify that disciplinary counsel must notify the complainant of the disposition of a complaint, and allow disciplinary counsel to release information about a previously dismissed complaint to the lawyer or judge who was the subject of the dismissed complaint; (8) clarify that the Rules of Civil Procedure and the Rules of Evidence apply only after formal charges have been filed; and (9) require that complaints against lawyers and judges be filed with the Office of Disciplinary Counsel, rather than the Commission on Lawyer Conduct or the Commission on Judicial Conduct. 

The amendment requiring complaints against lawyers and judges be filed with the Office of Disciplinary Counsel requires minor amendments to a number of other court rules. Those other rules include several of the Rules of Professional Conduct ¹, which are contained in Rule 407 of the South Carolina Appellate Court Rules; Rule 428(b) of the South Carolina Appellate Court Rules; and Canon 3D of the Code of Judicial Conduct, which is contained in Rule 501 of the South Carolina Appellate Court Rules.

Pursuant to Article V, Section 4 of the South Carolina Constitution, we grant the Office of Commission Counsel's request to amend these various rules, with some modifications.  The amendments, which are set forth in the attachment to this Order, are effective immediately.         

Columbia, South Carolina
October 23, 2019

The Rules for Lawyer Disciplinary Enforcement (RLDE), which are contained in Rule 413 of the South Carolina Appellate Court Rules (SCACR), are amended to provide as follows:

Rule 2(e), RLDE is amended to provide:

(e) Complaint: information in any form from any source received by disciplinary counsel that alleges, or from which a reasonable inference can be drawn, that a lawyer committed misconduct or is incapacitated. If there is no written complaint from another person, disciplinary counsel's written statement of the allegations constitutes the complaint.

Rule 6(b), RLDE, is amended to add the following provision as paragraph (4), with the remaining paragraphs renumbered to reflect the change:

(4) supervise and monitor scheduling of Commission court reporter;

Rule 9, RLDE, is amended to provide:

RULE 9
CIVIL RULES APPLICABLE

Except as otherwise provided in these rules, the South Carolina Rules of Evidence applicable to non-jury civil proceedings and the South Carolina Rules of Civil Procedure apply in lawyer discipline cases following the filing of formal charges, incapacity cases, and proceedings to determine whether a lawyer is unable to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition. The right to discovery, however, applies only after formal charges have been filed and shall be limited to that provided by Rule 25.

The first sentence of Rule 12(d), RLDE, is amended to provide:

(d) Disclosure Necessary for Withdrawal as Counsel. When it is necessary to obtain the permission of a tribunal to withdraw from representation, a lawyer may reveal the fact that the client filed a complaint with disciplinary counsel to help establish good cause for withdrawal.

Rule 16(c), RLDE, is amended to provide:

(c) Action by Disciplinary Counsel. Upon receiving competent evidence that a lawyer has been charged or convicted of a crime, disciplinary counsel shall determine whether the crime involved is a serious crime as defined by Rule 2. If the crime is a serious crime, disciplinary counsel may seek an interim suspension under Rule 17(a) if the lawyer has been charged with a serious crime, and shall seek an interim suspension under Rule 17(a) if the lawyer has been convicted of a serious crime. If the crime is not a serious crime, disciplinary counsel shall process the matter in the same manner as any other information coming to the attention of disciplinary counsel.

Rule 17(d), RLDE, is amended to provide:

(d) Motion for Reconsideration. A lawyer placed on interim suspension may apply to the Supreme Court for reconsideration of the order. A copy of the motion shall be filed with the Commission and served on disciplinary counsel. Any additional filings by the lawyer or disciplinary counsel shall be made only upon request by the Supreme Court.

Rule 19(a), RLDE, is amended to provide:

(a) Screening. Disciplinary counsel shall evaluate all information coming to disciplinary counsel's attention by complaint or from other sources that alleges lawyer misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition. If the information would not constitute misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings if it were true, disciplinary counsel shall dismiss the complaint or, if appropriate, refer the matter to another agency. Disciplinary counsel shall notify the complainant of the disposition of the complaint. Disciplinary counsel is not required to notify the lawyer of the complaint or disposition but may release information about the complaint to the lawyer upon written request. If the information raises allegations that would constitute lawyer misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings if true, disciplinary counsel shall conduct an investigation.

Rule 19(c)(3) and (4), RLDE, are amended to provide:

(3) Before disciplinary counsel or the investigative panel determines its disposition of the complaint under Rule 19(d), either disciplinary counsel or the lawyer may request that the lawyer appear before disciplinary counsel to respond to questions from disciplinary counsel. The appearance shall be on the record at the date, time, and place scheduled by disciplinary counsel, and the testimony shall be under oath or affirmation. The appearance shall be conducted by disciplinary counsel in the manner disciplinary counsel deems appropriate. If disciplinary counsel requests the lawyer's appearance, disciplinary counsel must give the lawyer 20 days' notice.

(4) Any person making an appearance and answering questions pursuant to Rule 19 shall be entitled to obtain the official transcript of his or her testimony from the Commission court reporter upon paying the subscribed charges unless otherwise directed by an investigative panel for good cause shown. The lawyer may arrange to have a separate stenographic record and transcription made at the lawyer's own expense.

The first two sentences of Rule 19(e), RLDE are amended to provide:

(e) Complaints Against Disciplinary Counsel. Complaints against disciplinary counsel or a lawyer member of disciplinary counsel's staff shall be filed with the Commission on Lawyer Conduct for review by Commission counsel. If a complaint is filed with disciplinary counsel and is against disciplinary counsel or a lawyer member of disciplinary counsel's staff, disciplinary counsel shall immediately forward the complaint to Commission counsel.

Rule 26(c)(5), RLDE, is amended to provide:

(5) The hearing shall be recorded verbatim and the official transcript shall be promptly prepared by the Commission court reporter and filed with the Commission. A copy of the transcript shall be made available to the respondent at respondent's expense.

Rule 27(d), RLDE, is amended to provide:

(d) Stay for Further Proceedings. Disciplinary counsel shall advise the Supreme Court if it receives any other complaint(s) against respondent during review by the Supreme Court. Disciplinary counsel may also advise the Supreme Court if there any pending complaints against respondent at the time the matter is submitted for review. The Supreme Court may stay its review pending the Commission's determination of any other complaint(s). The Supreme Court may impose a single sanction covering all recommendations for discipline from the Commission against a respondent.

Rule 29(a), RLDE, is amended to provide:

(a) Lawyers Disciplined or Transferred to Incapacity Inactive Status in Another Jurisdiction. Within fifteen days of being disciplined or transferred to incapacity inactive status in another jurisdiction, a lawyer admitted to practice in this state shall inform disciplinary counsel in writing of the discipline or transfer. Upon notification from any source that a lawyer within the jurisdiction of the Commission has been disciplined or transferred to incapacity inactive status in another jurisdiction, disciplinary counsel shall obtain a certified copy of the disciplinary order and file it with the Commission and the Supreme Court.

Rule 32, RLDE, is amended to provide:

RULE 32
REINSTATEMENT FOLLOWING A DEFINITE SUSPENSION
OF LESS THAN NINE MONTHS

(a) Affidavit for Reinstatement. Unless otherwise provided for in the Supreme Court's suspension order, a lawyer who has been suspended for a definite period of less than 9 months shall be reinstated to the practice of law at the end of the period of suspension by filing with the Supreme Court, and serving upon disciplinary counsel and the Commission on Lawyer Conduct, an affidavit stating that the lawyer:

(1) is in good standing with the Commission on Continuing Legal Education and Specialization with regard to mandatory continuing legal education requirements, and the lawyer has no outstanding license fees due to the South Carolina Bar;

(2) has fully complied with the requirements of the suspension order;

(3) has completed the Legal Ethics and Practice Program Ethics School within the preceding year or the lawyer certifies he or she will enroll in and complete the next available Legal Ethics and Practice Program Ethics School; and

(4) has paid any required fees and costs, including payment of necessary expenses and compensation approved by the Supreme Court to the receiver or the attorney appointed to assist the receiver pursuant to Rule 31, RLDE, to protect the interests of the lawyer's clients for necessary expenses, or to the Lawyers' Fund for Client Protection if the Fund has paid the attorney appointed to assist the receiver under Rule 31(g), RLDE.

(b) Pending Disciplinary Investigations. The lawyer must also provide a statement from disciplinary counsel stating whether any disciplinary investigations are currently pending against the lawyer. If a disciplinary investigation is currently pending against the lawyer, the Supreme Court shall give disciplinary counsel an opportunity to oppose the lawyer's reinstatement pending the conclusion of that investigation. For the purposes of meeting this requirement, a lawyer who files a petition for reinstatement under this rule waives the confidentiality provisions of Rule 12 concerning any pending investigations.

(c) Additional Requirements for Criminal Convictions. If suspended for conduct resulting in a criminal conviction and sentence, the lawyer must also successfully complete all conditions of the sentence, including, but not limited to, any period of probation or parole. In such a case, the lawyer must attach to the affidavit documentation demonstrating compliance with this provision.

(d) Proof of Service; Filing Fee. The affidavit filed with the Supreme Court shall be accompanied by proof of service on disciplinary counsel and the Commission on Lawyer Conduct and a filing fee of $200.

(e) Order Granting Petition. When all preconditions set out in this rule are met, the Court shall issue an order of reinstatement. The order shall be public.

Rule 33(f), RLDE, is amended to add paragraph (12), which provides:

(12) The lawyer has reimbursed the Lawyers' Fund for Client Protection for all claims paid on the lawyer's behalf or has entered into a payment plan with the Commission on Lawyer Conduct for reimbursement to the Lawyers' Fund for Client Protection for all claims paid on the lawyer's behalf.

The Rules for Judicial Disciplinary Enforcement (RJDE), which are contained in Rule 502 of the South Carolina Appellate Court Rules (SCACR), are amended as follows:

Rule 2(e), RJDE, is amended to provide:

(e) Complaint: information in any form from any source received by disciplinary counsel that alleges or from which a reasonable inference can be drawn that a judge committed misconduct or is incapacitated. If there is no written complaint from another person, disciplinary counsel's written statement of the allegations constitutes the complaint.

Rule 6, RJDE, is amended to add the following provision as paragraph (3), with the remaining paragraphs renumbered to reflect the change:

(3) supervise and monitor scheduling of Commission court reporter;

Rule 9, RJDE, is amended to provide:

RULE 9. CIVIL RULES APPLICABLE

Except as otherwise provided in these rules, the South Carolina Rules of Evidence applicable to non-jury civil proceedings and the South Carolina Rules of Civil Procedure apply in judicial discipline cases following the filing of formal charges, incapacity cases, and proceedings to determine whether a judge is unable to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition. The right to discovery, however, applies only after formal charges have been filed and shall be limited to that provided by Rule 25.

Rule 16(c), RJDE, is amended to provide:

(c) Action by Disciplinary Counsel. Upon receiving competent evidence that a judge has been charged or convicted of a crime, disciplinary counsel shall determine whether the crime involved is a serious crime as defined by Rule 2. If the crime is a serious crime, disciplinary counsel may seek an interim suspension under Rule 17(a) if the judge has been charged with a serious crime, and shall seek an interim suspension under Rule 17(a) if the judge has been convicted of a serious crime. If the crime is not a serious crime, disciplinary counsel shall process the matter in the same manner as any other information coming to the attention of disciplinary counsel.

Rule 17(d), RJDE, is amended to provide:

(d) Motion for Reconsideration. A judge placed on interim suspension may apply to the Supreme Court for reconsideration of the order. A copy of the motion shall be filed with the Commission and served on disciplinary counsel. Any additional filings by the judge or disciplinary counsel shall be made only upon request by the Supreme Court.

Rule 19(a), RJDE, is amended to provide:

(a) Screening. Disciplinary counsel shall evaluate all information coming to disciplinary counsel's attention by complaint or from other sources that alleges judicial misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition. If the information would not constitute misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings if it were true, disciplinary counsel shall dismiss the complaint or, if appropriate, refer the matter to another agency. Disciplinary counsel shall notify the complainant of the disposition of the complaint. Disciplinary counsel is not required to notify the judge of the complaint or disposition but may release information about the complaint to the judge upon written request. If the information raises allegations that would constitute judicial misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings if true, disciplinary counsel shall conduct an investigation.

Rule 19(c)(3) and (4), RJDE, are amended to provide:

(3) Before disciplinary counsel or the investigative panel determines its disposition of the complaint under Rule 19(d), either disciplinary counsel or the judge may request that the judge appear before disciplinary counsel to respond to questions from disciplinary counsel. The appearance shall be on the record at the date, time, and place scheduled by disciplinary counsel, and the testimony shall be under oath or affirmation. The appearance shall be conducted by disciplinary counsel in the manner disciplinary counsel deems appropriate. If disciplinary counsel requests the judge's appearance, disciplinary counsel must give the judge 20 days' notice.

(4) Any person making an appearance and answering questions pursuant to Rule 19 shall be entitled to obtain the official transcript of his or her testimony from the Commission court reporter upon paying the subscribed charges unless otherwise directed by an investigative panel for good cause shown. The judge may arrange to have a separate stenographic record and transcription made at the judge's own expense.

Rule 26(c)(5), RJDE, is amended to provide:

(5) The hearing shall be recorded verbatim and the official transcript shall be promptly prepared by the Commission court reporter and filed with the Commission. A copy of the transcript shall be made available to the respondent at respondent's expense.

Rule 27(d), RJDE, is amended to provide:

(d) Stay for Further Proceedings. Disciplinary counsel shall advise the Supreme Court if it receives any other complaint(s) against respondent during review by the Supreme Court. Disciplinary counsel may also advise the Supreme Court if there any pending complaints against respondent at the time the matter is submitted for review. The Supreme Court may stay its review pending the Commission's determination of any other complaint(s). The Supreme Court may impose a single sanction covering all recommendations for discipline from the Commission against a respondent.

The following Rules of Professional Conduct, which are located in Rule 407 of the South Carolina Appellate Court Rules (SCACR), are amended to provide as follows.

The first sentence of Rule 1.15(h), RPC, is amended to provide:

(h) Every lawyer maintaining a law office trust account shall file with the financial institution a written directive requiring the institution to report to the Office of Disciplinary Counsel when any properly payable instrument drawn on the account is presented for payment against insufficient funds.

Rule 5.1, Cmt. 9, RPC, is amended to provide:

[9] Paragraph (d) expresses a principle of responsibility to the clients of the law firm. Where partners or lawyers with comparable authority reasonably believe a lawyer is suffering from a significant cognitive impairment, they have a duty to protect the interests of clients and ensure that the representation does not harm clients or result in a violation of these rules. See Rule 1.16(a). One mechanism for addressing concerns before matters must be taken to the Office of Disciplinary Counsel is found in Rule 428, SCACR. See also Rule 8.3(c) regarding the obligation to report a violation of the Rules of Professional Conduct when there is knowledge a violation has been committed as opposed to a belief that the lawyer may be suffering from an impairment of the lawyer's cognitive function.

Rule 7.3(d)(3), RPC, is amended to provide:

(3) Each solicitation must include the following statement: "ANY COMPLAINTS ABOUT THIS COMMUNICATION OR THE REPRESENTATIONS OF ANY LAWYER MAY BE DIRECTED TO THE OFFICE OF DISCIPLINARY COUNSEL, 1220 SENATE STREET, SUITE 309, COLUMBIA, SOUTH CAROLINA 29201—TELEPHONE NUMBER 803-734-2038." Where the solicitation is written, this statement must be printed in capital letters and in a size no smaller than that used in the body of the communication.

Rule 8.3(a) and (b), RPC, is amended to provide:

(a) A lawyer who is arrested for or has been charged by way of indictment, information or complaint with a serious crime shall inform the Office of Disciplinary Counsel in writing within fifteen days of being arrested or being charged by way of indictment, information or complaint.

(b) A lawyer who is disciplined or transferred to incapacity inactive status in another jurisdiction shall inform the Office of Disciplinary Counsel in writing within fifteen days of discipline or transfer.

Rule 428(b), SCACR, is amended to provide:

(b) The Attorneys to Intervene shall promptly report to the Executive Director whether any actions were recommended to the lawyer, whether the lawyer agreed to any recommendations, and whether further action is recommended. Further action may include action under Rule 28, RLDE, Rule 413, SCACR. In the event a referral to the Office of Disciplinary Counsel is recommended by the Attorneys to Intervene, that referral shall be made by them promptly.

Canon 3D(4) of the Code of Judicial Conduct, which is contained in Rule 501, SCACR would also be amended to provide:

(4) A judge who is arrested for or has been charged by way of indictment, information or complaint with a serious crime shall inform the Office of Disciplinary Counsel in writing within fifteen days of being arrested or being charged by way of indictment, information or complaint.