The Supreme Court of South Carolina
In re: Amendments to the Lawyers’ Fund for Client
Protection of the South Carolina Bar Rules of Procedure
ORDER
In accordance with Rule 411(c)(2), South Carolina Appellate Court Rules, the South Carolina Bar has proposed a number of amendments to the Lawyers’ Fund for Client Protection of the South Carolina Bar Rules of Procedure. The amendments seek to expedite claims by providing specific deadlines for processing claims. The amendments also include a new section governing confidentiality of applications, proceedings, and reports.
We grant the Bar’s petition to amend the Lawyers’ Fund for Client Protection of the South Carolina Bar Rules of Procedure, as set forth in the attachment to this Order. These amendments shall be effective immediately.
IT IS SO ORDERED.
| s/Jean H. Toal C.J. s/John H. Waller, Jr. J. s/Costa M. Pleicones J. s/Donald W. Beatty J. s/John W. Kittredge J. |
Columbia, South Carolina
March 20, 2009
LAWYERS’ FUND FOR CLIENT PROTECTION
OF THE SOUTH CAROLINA BAR
RULES OF PROCEDURE
. . .
SECTION II. APPLICATION FOR REIMBURSEMENT
. . .
| 6. | If the lawyer is a member in good standing of the South Carolina Bar, the applicant’s cooperation in grievance proceedings against such lawyer shall be a prerequisite to the granting of relief to such applicant from the Fund. The Committee may require that a claimant prosecute or cooperate in appropriate civil proceedings against the accused lawyer as a prerequisite to the granting of relief to such applicant from the Fund. |
SECTION III. PROCESSING APPLICATION
| 1. | The Committee shall cause reasonable investigation of any applications coming to its attention, either by applications for reimbursement or by certification from the Commission on Lawyer Conduct, its agents, or the Board of Governors of the South Carolina Bar. |
||
| 2. | The Chair of the Committee shall cause each such application to be sent to a member of the Committee or other member of the South Carolina Bar for investigation and report. A copy of the application shall be served upon or sent by registered mail to the last known address of the lawyer who it is claimed committed the dishonest act. Whenever possible, the application will be referred to a member of the Committee or member of the South Carolina Bar who practices in the Judicial Circuit wherein the alleged defalcating lawyer practiced. |
||
| 3. | When, in the opinion of the member to whom application has been referred, the application is clearly not for a reimbursable loss, no further investigation need be conducted. A report with respect to such application shall be made as hereinafter specified by the member to whom the application was referred. |
||
| 4. | A member to whom a report is referred for investigation shall conduct such investigation in such manner as deemed necessary and desirable to determine whether the application is for a reimbursable loss and to guide the Committee in determining the extent, if any, to which the application shall be paid from the Fund. |
||
| 5. | Any information obtained by the member from the files of the Commission on Lawyer Conduct shall be used solely by or for the Lawyers’ Fund for Client Protection Committee; but otherwise shall constitute confidential information. |
||
| 6. | Reports with respect to applications shall be submitted by the members to whom they have been referred for investigation to the Committee Liaison within ninety days. |
||
| 7. | The Committee Liaison shall submit reports with respect to applications to the Chair of the Committee and to the members of the Committee within ten working days of their receipt. |
||
| 8. | After considering the reports on applications to be processed, a Committee member may request that testimony be presented. Absent such recommendation or request, applications shall be processed on the basis of information contained in the report of the member who investigated such applications. In all cases, the alleged defalcating lawyer or a personal representative will be given an opportunity to be heard by the Committee if he or she so requests. The “fact” of dishonest conduct is usually determined by the Commission on Lawyer Conduct or a civil or criminal court; not by the Lawyers’ Fund for Client Protection Committee. |
||
| 9. | The Committee shall, in its discretion, determine the amount of loss, if any, for which any client shall be reimbursed from the Fund. In making such determination, the Committee shall consider, inter alia, the following: |
||
| (a) | Any conduct of the client which contributed to the loss. |
||
| (b) | The comparative hardship which the client suffered because of the loss. |
||
| (c) | The total amount of reimbursable losses of the clients of any one lawyer or association of lawyers. |
||
| (d) | The total amount of reimbursable losses in previous years for which the total reimbursement has not been made and the total assets of the Fund. |
||
| (e) | The total amount of insurance or other source of funds available to compensate the client for the loss. |
||
| (f) | The Committee may, in its discretion, allow further reimbursement in any year of a reimbursable loss allowed by it in prior years with respect to a loss which has not been fully reimbursed; provided such further reimbursement would not be inconsistent or in conflict with any previous determination with respect to such a loss. |
||
| (g) | No reimbursement shall be made to any client, a report of whose application has not been submitted to the Committee, except as provided below. No reimbursement shall be made to any client unless said reimbursement is approved by a majority vote of the Committee at a duly held meeting at which a quorum is present, except as provided below. |
||
| Small claims may be authorized by the Chair of the Committee and paid without a meeting of the Committee upon compliance with the following procedure: |
|||
| (i) | The application is for reimbursement in an amount of $1,000 or less; |
||
| (ii) | The investigating member has represented that all elements justifying reimbursement under these rules have been satisfied; and |
||
| (iii) | The members of the Committee are provided a copy of the client’s application and the investigating member’s report, a majority of members approve such reimbursement, and approvals are filed with the records of the Committee. |
||
| 10. | An applicant may be advised of the status of the Committee’s consideration of his application and shall be advised of the final determination of the Committee. |
||
| 11. | All participants in the application, investigation or proceeding (including the applicant) shall conduct themselves so as to maintain the confidentiality of the application, investigation or proceedings. This provision shall not be construed to deny relevant information to the Commission on Lawyer Conduct or authorized agencies investigating qualifications for governmental employment, or to prohibit the release of statistical information which does not disclose the identity of the parties. If requested, any information from the files of the Lawyers’ Fund for Client Protection may be provided to law enforcement and the Commission on Lawyer Conduct. | ||
. . .
Section VII. GENERAL PROVISIONS
No publicity shall be given to applications for reimbursement until payment is approved; thereafter, publicity shall be within the discretion of the Committee subject to the provisions of Section III.
These Rules may be changed at any time by the majority vote of the Committee subject to the approval of the Board of Governors of the South Carolina Bar and provided such change is not inconsistent with the Rule of the Supreme Court of South Carolina establishing the Lawyers’ Fund for Client Protection. Members of the Committee, investigating members and Bar staff shall be immune from liability and suit while acting within the scope of their duties under this Rule or any rules which may be promulgated by the Committee.
Section VIII. CONFIDENTIALITY
The Committee, pursuant to Rule 411(c)(4), memorializes a Rule regarding the confidentiality of applications, proceedings and reports. Unless otherwise directed by the lawyer that the matter be made public pursuant to the Rule, this Rule shall apply.
| 1. | Upon filing of an application pursuant to Rule 411, the lawyer whose alleged conduct predicates the application shall be provided a copy of that application. The copy shall be sent to the address of the lawyer on the Bar member register, unless another address is known. |
| 2. | The cover letter forwarding the application to the lawyer will also identify the investigator assigned to the matter and invite that lawyer to contact the investigator should he or she deem it necessary. The investigator is under no obligation to contact the lawyer. |
| 3. | During the course of investigation, individual investigators gather information and prepare reports for the Committee to consider. The reports submitted by the individual investigator provide background and make a recommendation, although the recommendation is not binding upon the Committee. The reports are intended to provide as much information as possible so that the Committee can have a full and frank deliberation. All file materials, other than the application and the Committee’s decision, are deemed confidential work product and shall not be produced. |
| 4. | Nothing contained herein shall be construed to deny access to relevant information to appropriate authorized agencies as authorized by the Committee’s Rules of Procedure. To that extent, information regarding obligations of lawyers to the Fund may be shared with appropriate authorities determining the feasibility of reinstating the lawyer to the practice of law. The deliberations and reasoning for the award amounts will not be shared with those agencies absent a case-by-case approval by the Committee. |
| 5. | Civil subpoenas will be honored as to specific matter, but work product produced in the course of an investigation shall not be produced. |