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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


South Carolina Legal Ethics

INTRODUCTION

0.1:100   Sources of Law and Guidance

0.1:101      Professional Codes

Ethical obligations of members of the South Carolina Bar are governed by the South Carolina Rules of Professional Conduct, adopted by the South Carolina Supreme Court effective September 1, 1990. The South Carolina rules largely follow the American Bar Association's Model Rules but with additions and modifications as set forth in this narrative. See 01.1:104. Prior to adoption of the South Carolina Rules of Professional Conduct, the applicable ethical code was the South Carolina Code of Professional Responsibility.

The Supreme Court adopted significant amendments to the rules governing advertising and solicitation effective September 1, 1998. South Carolina has also adopted ABA Model Rule 1.17 dealing with sale of a law practice (with some modifications) and ABA revised Model Rule 3.6 dealing with trial publicity. The South Carolina rules include a prohibition on threatening criminal prosecution, Rule 4.5, not found in the Model Rules. South Carolina Rule 4.5 is based on DR 7-105 of the Code of Professional Responsibility.

The South Carolina rules dealing with advertising and solicitation extend to lawyers who are not members of the South Carolina under certain circumstances. See S.C. App. Ct. R. 418 (Advertising and Solicitation by Unlicensed Lawyers).

0.1:102      "Other" Law and Moral Obligation

[The discussion of this topic has not yet been written.]

0.1:103      Background of the SC Rules of Professional Conduct

In 1989 the South Carolina Bar filed a petition with the Supreme Court seeking adoption of the South Carolina Rules of Professional Conduct to replace the South Carolina Code of Professional Responsibility. The Bar's petition contained an extensive report comparing the proposed South Carolina rules to the Code of Professional Responsibility and outlining modifications from the ABA Model Rules proposed by the Bar. After holding public hearings on adoption of the rules, the court issued its order on January 10, 1990, adopting the South Carolina rules effective September 1, 1990. After notice and public hearing, the court has amended the rules on a number of occasions since their adoption.

0.1:104      Unusual Aspects of the SC Ethics Rules

Rule 1.5

South Carolina Rule 1.5 follows Model Rule 1.5 with the following changes:

SC Rule 1.5(a)(2) deletes the following language found in the Model Rule: "if apparent to the client." SC Rule 1.5(d)(1) adds the following language: "provided that a lawyer may charge a contingency fee in collection of past due alimony or child support."

The South Carolina comment follows the comments to Model Rule 1.5 with the following additions:

Basis or Rate of Fee

. . .

The South Carolina version of the rule differs from the Model Rule by making the test in paragraph (a)(2) objective rather than subjective because clients may not fully understand why a lawyer who accepts one case may thereby be precluded from other employment. In paragraph (d)(1) the South Carolina rule makes clear that contingency fees are specifically approved in collection of arrearages in domestic relations matters.

Terms of Payment

. . . Note, further, however, that in certain circumstances the client and lawyer may have entered into an arrangement under which there is a nonrefundable retainer fee. This nonrefundable retainer fee may be retained if it is reasonable under the factors listed in Rule 1.5. See Rule 1.16(d).

. . .

Disputes Over Fees

Upon application by a client or fellow member of the South Carolina Bar, an attorney shall submit to the proceedings of the Resolution of Fee Disputes Board.

Rule 1.6

South Carolina follows Model Rule 1.6 except that South Carolina Rule 1.6(b)(1) provides that a lawyer may reveal confidential information "to prevent the client from committing a criminal act."

The South Carolina comments follow the Model Rule except for the following paragraph:

Third, the lawyer may learn that a client intends prospective conduct that is criminal. As stated in paragraph (b)(1), the lawyer has professional discretion to reveal information in order to prevent such consequences. It is very difficult for a lawyer to "know" when such a heinous purpose will actually be carried out, for the client may have a change of mind. Paragraph (b)(1) was modified from the model rule version which has qualifying language to the effect that only those criminal acts which the lawyer believes are likely to result in imminent death or substantial bodily harm may be disclosed. This language was deleted in the South Carolina version to provide greater flexibility for the lawyer, similar to the flexibility present under DR 4-101 of the Code of Professional Responsibility.

Among other modifications, this paragraph deletes the following sentence found in the comments to the model rule: "The lawyer may make a disclosure in order to prevent homicide or serious bodily injury which the lawyer reasonably believes is intended by a client."

Rule 1.7

South Carolina Rule 1.7 and its comments are identical to Model Rule 1.7, except that the last paragraph of the comment deletes the following sentence that is found in the comments to the model rule: "In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants."

Rule 1.8

South Carolina Rule 1.8 is identical to Model Rule 1.8 with the following changes:

In Rule 1.8(i) the word "personally" has been inserted before "represent a client". South Carolina has added Rule 1.8(k):

(k) In any adversarial proceeding, a lawyer shall not serve as both an advocate and an advisor to the hearing officer, trial judge or trier of fact. A lawyer serving as an advocate in a particular matter shall not directly or indirectly engage in ex parte communication with the hearing officer, trial judge or trier of fact concerning the proceeding.

The South Carolina comments are identical to the comments to Model Rule 1.8, with the following additions:

Limiting Liability

Paragraph (h) is not intended to apply to customary qualifications and limitations in legal opinions and memoranda.

Family Relationships Between Lawyers

. . . The South Carolina version slightly modified the model version by inserting "personally".

Serving as an Advocate and Advisor in Adversarial Proceedings

This provision addresses those situations which arise primarily in administrative proceedings in which a lawyer who serves as an advisor to that body is permitted to prosecute matters which are adjudicated by that body. This rule prohibits a lawyer who has served or is serving as an advisor on a particular matter from also prosecuting or defending that particular matter. It does not prevent one lawyer from prosecuting an administrative matter in which another lawyer in the same office serves as an advisor to the hearing body, as long as the lawyers do not communicate with one another or share information about the particular case. Communications by the prosecuting lawyer and the advising lawyer with respect to a particular matter would operate as an indirect ex parte communication with the hearing officer, trial judge or trier of fact, because the information gained by the advising lawyer would be available to the hearing officer, trial judge or trier of fact.

By way of example only:

(A) A lawyer assigned to serve as an advisor to the Board of Dentistry may not prosecute a disciplinary action against Dentist Doe while at the same time he advises the Board on matters relative to the Doe matter. He may advise the Board on the Doe matter while another lawyer employed by the same employer prosecutes the Doe matter, but the two lawyers may not share information with one another, except in the regular course of discovery, with notice to Doe. The lawyers must operate as if they are in separate firms, even though they are employed by a common employer.

(B) General counsel employed by a state-supported university may not defend the university in a dispute brought by an employee under the university's internal employee grievance system while at the same time serving as an advisor to the internal panel which is adjudicating the employee grievance matter. One lawyer in general counsel's office may advise the employee grievance body on the particular matter while another lawyer in the same office defends the university in the matter, as long as the two lawyers do not share information concerning the matter. The lawyers must operate as if they are in separate firms, even though they are employed by a common employer.

It is recognized that lawyers in private practice would be prohibited, under Rule 1.7, from representing an adjudicatory body in a particular matter while another lawyer in the same law firm prosecutes or defends the same matter before the adjudicatory body. Because of the nature of public employment of lawyers, however, some accommodation must be made to permit the sharing of responsibilities among lawyers of a common employer. The erection of a "Chinese wall" regarding sharing of information among lawyers employed by a common employer permits the efficient carrying out of administrative functions, while at the same time protecting the rights of individuals whose rights are being adjudicated in the proceedings.

Rule 1.14

South Carolina Rule 1.14 and its comments are identical to Model Rule 1.14, except that South Carolina has not adopted comment paragraphs 6 and 7 dealing with emergency assistance, which were approved by the ABA in 1997.

Rule 1.15

South Carolina Rule 1.15 and its comments are identical to Model Rule 1.15, except that South Carolina has deleted the last sentence of the comment to the Model Rules because South Carolina has adopted a client's security fund. See S.C. App. Ct. R. 411.

Rule 1.16

South Carolina Rule 1.16 and its comments are identical to Model Rule 1.16, with the following modifications:

Section (b)(4) of the rule has been modified to read as follows: "the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services or payment therefor . . .."

Section (d) has been modified by adding the following sentence at the end of the section:

"The lawyer may retain a reasonable nonrefundable retainer."

The comment on Optional Withdrawal has been modified by adding the following sentence at the end of the comment: "The South Carolina version of paragraph (b)(4) specifically recognizes that nonpayment for services may be a basis for withdrawal."

The comment on Assisting the Client Upon Withdrawal has been modified by adding the following sentence as a new second paragraph: "A lawyer may retain an otherwise proper nonrefundable retainer. See Comment to Rule 1.5."

Rule 1.17

South Carolina Rule 1.17 generally follows Model Rule 1.17, with the following modifications and differences:

In section 1.17(a)(1) South Carolina has chosen the "geographic area" option.

The time for client objection has been reduced from 90 to 45 days.

South Carolina requires publication in a newspaper of general circulation of notice of the proposed sale. S.C. Rule 1.17(a)(4).

South Carolina has added a section allowing reasonable restrictions on the right of the seller to practice law without violating Rule 5.6. See S.C. Rule 1.17(c).

The comments to S.C. Rule 1.17 generally follow Model Rule 1.17, but with a number of modifications and additions.

Rule 3.2

South Carolina Rule 3.2 and its comments are identical to Model Rule 3.2, except the South Carolina comment omits the following last sentence of the comment to the Model Rule: "Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client."

Rule 3.5

South Carolina Rule 3.5 and its comments are identical to Model Rule 3.5 with the following modifications and additions:

In section (a) the South Carolina rule substitutes "member of the jury venire" for "prospective juror." The comment explains this change as follows:

The South Carolina version of paragraph (a) refers to "member of the jury venire" rather than "prospective juror" (as is found in the model rule) since any person technically could be the latter.

South Carolina has also added section (d), imposing conditions on participation by lawyers in judicial portrait funds or memorials.

Rule 3.8

South Carolina Rule 3.8 and its comments are identical to Model Rule 3.8 with the following changes:

Subsection (f)(2) has been modified to read as follows: "the evidence sought is relevant to an ongoing investigation or prosecution."

Subsection (f)(3) has been modified to read as follows: "there is no other feasible alternative to obtain the information."

South Carolina has not adopted Model Rule 3.8(g) and its accompanying comment dealing with the duty of a prosecutor not to make extrajudicial comments that "have a substantial likelihood of heightening public condemnation of the accused."

Rule 4.2

South Carolina Rule 4.2 and its comments follow Model Rule 4.2 with the following modifications and additions:

South Carolina has not adopted the ABA's 1995 amendment to Model Rule which changed the word "person" to "party". South Carolina has not adopted the amendments to the comments that the ABA approved as part of the amendment to Rule 4.2 in 1995. In particular, South Carolina has not adopted comment 2 stating that constitutionally permissible investigative activities by law enforcement officials are authorized by law within the meaning of the rule, comment 3 indicating that the rule applies to communications in transactional as well as adjudicative proceedings, and comment 5 providing that the lawyer must have knowledge that the person is represented by counsel.

Rule 4.4

South Carolina Rule 4.4 and its comments are identical to Model Rule 4.4, except that the South Carolina rule reads "no purpose" rather than "no substantial purpose." The comment to the South Carolina rule explains this omission as follows:

The South Carolina version deletes "substantial" which is the qualifier before "purpose" in the model rule. The chilling effect of having to demonstrate a substantial purpose outweighs the protections to be afforded to third persons. A lawyer should not have to determine the relative merits of trial tactics against embarrassment to a third person. As to cross examining an adverse witness, the lawyer's conduct is limited by the rules of evidence and the control which the trial judge exercises over the conduct of the trial. In problems of delaying or burdening witnesses, the trial judge can also exercise control and the witness in certain circumstances can obtain a protective order.

Rule 4.5

There is no equivalent Model Rule to South Carolina Rule 4.5. This rule prohibits a lawyer from bringing criminal charges or threatening to bring criminal charges against another person solely to obtain an advantage in a civil matter.

Rule 5.6

South Carolina Rule 5.6 and its comments are identical to Model Rule 5.6, except the South Carolina comments do not include comment 3 from the Model Rule dealing with restrictions on the right to practice law pursuant to sale of a law practice under Rule 1.17. The omission is probably not significant because S.C. Rule 1.17(c) provides that the agreement for sale of a law practice may include reasonable restrictions on a seller's right to practice without violating Rule 5.6.

Rule 5.7

South Carolina has not adopted Model Rule 5.7 or any equivalent provision.

Rule 6.1

South Carolina has not adopted the revision to Model Rule 6.1 approved by the ABA in 1993, calling for an aspirational standard of 50 hours of pro bono publico legal services per year. The South Carolina version is the ABA's original Model Rule.

Rule 7.1

South Carolina has made the following changes to Model Rule 7.1:

The South Carolina rule prohibits "false, misleading, deceptive, or unfair communications about the lawyer or the lawyer's services," while the ABA Rule is limited to "false or misleading" communications.

South Carolina has added section (d) to the rule, which provides as follows:

(d) contains a testimonial which concerns the quality of the services rendered or results obtained.

The South Carolina comment has been modified to reflect and explain the changes in the rule.

Rule 7.2

Sections (a), (b), (c), and (d) of South Carolina Rule 7.2 are essentially the same as Model Rule 7.2, except that the South Carolina rule does not include Model Rule 7.2(c)(3), dealing with purchase of a law practice under Rule 1.17. Because South Carolina has adopted Rule 1.17, this omission appears to be of no significance.

South Carolina has added a number of restrictions on advertising that are not found in Model Rule 7.2. See S.C. Rule 7.2(e), (f), (g), (h), and (i).

The South Carolina comments are identical to the comments to Model Rule 7.2, except that the reference to Rule 1.17 is omitted and the following sentence has been added at the end of the comments:

"Usual fees" may include a portion of legal fees collected by an attorney from clients referred by the service when that portion of fees is collected to support the expenses projected for the referral service.

Rule 7.3

South Carolina has substantially rewritten and added to Model Rule 7.3. South Carolina imposes significant restrictions on directed mail or recorded solicitations that are not found in the Model Rule. Among the most significant changes made by the South Carolina rule are the following:

South Carolina precludes lawyers from direct mail or recorded solicitations in personal injury cases for 30 days after the occurrence. S.C. Rule 7.3(b)(3). Model Rule 7.3 requires all direct mail or recorded solicitations to be labeled as "ADVERTISING MATERIAL," and South Carolina has adopted this requirement. Rule 7.3(c)(1). In addition, all direct mail or recorded solicitations in South Carolina must include three specific statements set forth in the rule. Rule 7.3(c)(2)(A), (B) and 7.3(c)(3). All written or recorded solicitations must be filed with the South Carolina Commission on Lawyer Conduct within 10 days after the mailing or recording along with a fee of $10. Rule 7.3(i). The rule contains a number of other restrictions and limitations on direct mail solicitation or recording. See Rule 7.3(d), (e), (f), (g), (h), (j).

South Carolina has adopted most of the comments to Model Rule 7.3, but has made a number of additions and modifications to reflect and explain the South Carolina version of the rule.

Rule 7.4

The South Carolina version of Rule 7.4 and its comments deviate substantially from the wording of Model Rule 7.4. Rule 7.4(a) authorizes lawyers who are certified as specialists under Rule 408 to state publicly that they are so certified. Rule 7.4(b) provides that lawyers who are not certified pursuant to Rule 408, may advertise that they limit their practices or practice in certain areas, but prohibits noncertified lawyers from using the words "certified," "specialist," "expert" or "authority." Rule 7.4(c) provides for advertising of the traditional areas of specialization: patent, trademark, and admiralty law. South Carolina has not adopted the ABA's 1992 amendment to Rule 7.4(c) responding to the Supreme Court's decision in Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91 (1990), which held that states could not constitutionally prohibit lawyers from advertising that they had been certified as specialists by bona fide organizations

Rule 8.3

South Carolina Rule 8.3 and its comments are identical to Model Rule 8.3 with the following modifications and additions:

South Carolina has slightly modified Rule 8.3(b) by including "honesty" and "trustworthiness" to to make the rule parallel with 8.3(a).

South Carolina has deleted the language in Rule 8.3(c) dealing with confidential information gained in lawyer assistance programs and has substituted Rule 8.4(d), which reads as follows:

(d) Inquiries or information received by the South Carolina Bar Lawyers Caring about Lawyers Committee or an equivalent county bar association committee regarding the need for treatment for alcohol, drug abuse or depression, or by the South Carolina Bar Law Office Management Assistance Program or an equivalent county bar association program regarding a lawyer seeking the program's assistance, shall not be disclosed to the disciplinary authority without the written permission of the lawyer receiving assistance. Any such inquiry or information shall enjoy the same confidence as information protected by the attorney-client privilege under applicable law.

South Carolina has added comments to reflect these changes.

Rule 8.4

South Carolina Rule 8.4 and its comments are identical to Model Rule 8.4 with the following additions and modifications:

South Carolina has added section 8.4(c), which provides as follows: "(c) engage in conduct involving moral turpitude." The remaining sections have been renumbered.

South Carolina has rewritten the first paragraph of the comments and added a new second paragraph, which read as follows:

A lawyer should maintain high standards of professional conduct and should refrain from all illegal and morally reprehensible conduct. Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud, violence, dishonesty, breach of trust, or serious interference with the administration of justice, and the offense of willful failure to file an income tax return. Because of the lawyer's position in society, even minor violations of law by the lawyer may tend to lessen public confidence in the legal profession. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

The South Carolina version of this Rule differs from the Model Rules in that it includes conduct involving moral turpitude as professional misconduct. This is carried over from DR1-102(A)(3).

South Carolina has not incorporated the comment adopted by the ABA in 1998 dealing with discriminatory activity as conduct prejudicial to the administration of justice. South Carolina has adopted the last two paragraphs of the ABA comments to Model Rule 8.4.

Rule 8.5

South Carolina Rule 8.5 and its comments differ from Model Rule 8.5. In particular, South Carolina has not adopted Model Rule 8.5(b) dealing which choice of law, although the comments refer to choice of law principles.

0.2:200   Forms of Lawyer Regulation in SC

0.2:210      Judicial Regulation

The South Carolina Supreme Court has authority to regulate the practice of law and to discipline members of the South Carolina Bar, as well as any lawyer admitted to practice pro hac vice and any lawyer whose advertisements or solicitations are subject to S.C. App. Ct. R. 418. See S.C. Code Ann. 40-5-20, 40-5-40. The court asserts jurisdiction to regulate lawyers already under suspension or disbarment. See Kirvin v. Secretary of the Board of Commissioners, 271 S.C. 194, 246 S.E.2d 857 (1978).

Lawyer conduct is governed by the South Carolina version of the Rules of Professional Conduct, S.C. App. Ct. R. 407. Judicial conduct is governed by the South Carolina version of the Code of Judicial Conduct, S.C. App. Ct. R. 501. The procedures for discipline of lawyers and judges are found in S.C. App. Ct. R. 413 and 502.

The court substantially revised its Rules for Lawyer Disciplinary Enforcement, Appellate Court Rule 413, effective as of January 1, 1997. At the same time the court amended its Rules for Judicial Disciplinary Enforcement. The amended version applies to all matters filed after that date, as well as to all matters pending as of January 1, 1997, except for pending matters in which the prior Board of Commissioners of Grievances and Discipline had already begun to hear the merits of a formal complaint under the old rule.

0.2:220      Bar Organizations

Pursuant to its authority to regulate the practice of law, the South Carolina Supreme Court has created a number of entities and committees to carry out various functions.

The South Carolina bar is a unified bar. South Carolina Appellate Court Rule 410 requires that "[e]very person admitted to practice law in South Carolina shall, within sixty (60) days after admission, register with the Secretary of the South Carolina Bar." Rule 410 also specifies the purposes, duties, and powers of the South Carolina Bar.

Rule 402 establishes the Board of Law Examiners and the Committee on Character and Fitness, as well as the qualifications that one must meet before admitted to practice law in South Carolina. Appendix A specifies the rules governing the Board of Law Examiners and Appendix B specifies the rules governing the Committee on Character and Fitness.

The Commission on Continuing Legal Education and Specialization is established under Rule 408; this rule also sets forth the continuing legal education requirements of lawyers. Appendix D allows the CLE Commission to establish advisory boards "in each field of law designated by the Commission in which certification shall be offered" and to appoint "members of such Boards."

Rule 411 establishes the Lawyers' Fund for Client Protection Committee, "whose function shall be to receive, hold, manage, and disburse . . . funds . . . for the purpose of maintaining the integrity and protecting the good name of the legal profession by reimbursing . . . losses caused by the dishonest conduct of members of the South Carolina Bar."

Interest on lawyer trust accounts is governed by Rule 412, a rule commonly referred to as IOLTA. This rule provides that, unless choosing to opt-out, "a member of the South Carolina Bar shall maintain one (1) or more interest-bearing trust accounts for client funds which are nominal in amount or to be held for a short period of time . . . established with a bank or saving and loan association." Furthermore, a lawyer using such an account must direct the depository institution "to remit interest or dividends . . . to the South Carolina Bar Foundation, Inc." and to transmit a quarterly report of the activity of the account to both the Bar Foundation and the depositing lawyer.

Rule 413 establishes the Commission on Lawyer Conduct, the organization "hav[ing] jurisdiction over all allegations that a lawyer has committed misconduct or is incapacitated," and sets forth the grounds for discipline, the sanctions imposed, and the procedures followed in disciplinary proceedings. See 0.2:230 and 0.2:240 below.

The Resolution of Fee Disputes Board, which arbitrates fee disputes, is established under Rule 416.

0.2:230      Disciplinary Agency

References in this section are to subrules of S.C. App. Ct. R. 413.

A Commission on Lawyer Conduct appointed by the South Carolina Supreme Court investigates and hears all disciplinary matters. All sanctions other than a private reprimand or deferred disciplinary agreement are imposed by the Supreme Court at the end of the disciplinary process. The commission is composed of 42 lawyers and 2 nonlawyers appointed to four-year terms. Rule 3(c). One lawyer member serves as chair of the commission and another as vice-chair. Rule 4(a). The commission is divided by the chair into 8 panels of 5 lawyers. Panels sit as either investigative panels or hearing panels. When designated to sit as an investigative panel, a panel also will include either the chair or vice chair and a nonlawyer member. A member of an investigative panel in a matter cannot serve on the hearing panel in the same matter.

The Commission on Lawyer Conduct can be contacted as follows:

P.O. Box 11330
Columbia, South Carolina 29211
803-734-2038

Disciplinary counsel, who is an active member of the South Carolina Bar appointed by the Supreme Court, conducts investigations, recommends disposition of matters following investigation, files and prosecutes formal charges, files appropriate briefs and petitions with the Supreme Court, maintains appropriate records, and prosecutes contempt proceedings against a person alleged to have practiced law while on inactive status or while under disbarment or suspension. Disciplinary counsel is authorized to hire investigators and experts needed to fulfill the duties of the office.

The rules also authorize the appointment of commission counsel, who serves as legal advisor to the commission. Commission counsel is responsible for advising hearing panels and drafting the decisions, orders, or reports of the hearing panel. Commission counsel also may supervise commission staff and perform other duties as directed by the commission. Rule 6.

0.2:240      Disciplinary Process

References in this section are to subrules of S.C. App. Ct. R. 413.

Complaints.

A complaint may consist of information received by disciplinary counsel from any source alleging or reasonably implying misconduct or incapacity by a lawyer . Rule 2(c). Information of possible disciplinary violations also may come from notice of discipline in another jurisdiction, Rule 29(a). Upon the filing of any indictment, information, or complaint charging a lawyer with a crime, the clerk of court is required to send a certified copy to disciplinary counsel within ten days. Rule 16(a). Similarly, the clerk must forward to disciplinary counsel within ten days a copy of any judgment of conviction of a lawyer. Rule 16(b).

Information of incapacity may come from a complaint received by disciplinary counsel, as well as from an order of involuntary commitment or an adjudication of incompetency. A claim by a lawyer that the lawyer is unable to defend a disciplinary matter may also be the basis for commencement of a proceeding to determine incapacity. Rule 28(a).

Disciplinary counsel is required to "evaluate all information coming to disciplinary counsel's attention by complaint or from other sources that alleges lawyer misconduct or incapacity." Rule 19(a). A complainant is entitled to notice from disciplinary counsel that the complaint has been received, along with notice of final disposition of the matter. Rule 18. disciplinary counsel has only limited authority to resolve matters without investigation.

Preliminary Investigations.

Disciplinary counsel has limited subpoena power during the preliminary investigation to compel the attendance of the lawyer or witnesses or the production of documents and records. The subpoena power is available at this stage only with the approval of the chair or vice-chair and only upon a showing of "exigent circumstances." Examples of such circumstances include situations in which it is reasonable to believe that information will be destroyed or altered or where the lawyer appears to pose a "substantial threat of serious harm" to the public and a subpoena is needed to determine whether a temporary suspension is appropriate.

After the preliminary investigation, disciplinary counsel may recommend a full investigation if there is evidence supporting the allegations or if disciplinary counsel has "grounds to believe that evidence supporting the allegations could be obtained by subpoena or further investigation." Rule 19(b)(2). If a full investigation is recommended by disciplinary counsel, the investigative panel may either order the full investigation, refer the matter to another agency, or dismiss the complaint. Rule 4(f). The lawyer is entitled to notice of a dismissal or referral and to a copy of the complaint if one has not already been received by the lawyer. Rule 19(b)(4).

Full Investigations.

Only disciplinary counsel can conduct full investigations. Rule 19(c)(5). Disciplinary counsel has subpoena power to require attendance of witnesses or the production of records. Rule 19(c)(5). The lawyer under investigation also may request that the investigative panel issue subpoenas for specific records or witnesses. Copies of witness statements or records received under a subpoena must be provided to the other side within ten days. Rule 15(b).

Disciplinary counsel must, within 20 days after a full investigation is ordered, give notice to the lawyer, unless notice is deferred by the investigative panel. In any event, notice must be given to the lawyer prior to disciplinary counsel issuing recommendations at the end of the full investigation. The required notice must include the name of the complainant (unless the investigative panel finds good cause to withhold that information), the specific allegations, and the rules allegedly violated, along with a statement that the scope of the investigation can be expanded.

The notice also must inform the lawyer of a duty to respond and of the opportunity to meet with disciplinary counsel. Rule 19(c). The lawyer under investigation may be asked to respond to the allegations within 30 days following service of the notice. Rule 19(c)(3). See also John Freeman, Mishandling Grievances, S.C. LAW., Sept.-Oct. 1999, at 11 (suggestions for lawyers to consider when called on to respond to grievance). Service at this stage of the investigation must comply with South Carolina Appellate Court Rule 233(b). At this stage, disciplinary counsel may no longer dismiss the matter, but may recommend that the investigative panel do so. Disciplinary counsel may recommend relatively minor action, such as a private admonition, letter of caution, or deferred discipline. Counsel may also recommend the filing of a petition for transfer of the lawyer to incapacity inactive status, referral to another agency, a stay, or the filing of formal charges specifying acts of misconduct or incapacity. Rule 19(d). See 0.2:230.

Sanctions by Consent Prior to Formal Charges.

A sanction by consent may be entered into prior to the filing of formal charges. The consent must include specific admissions of fact and specific rules that have been violated and must be signed by the lawyer, by disciplinary counsel, and by counsel for the lawyer, if any. The signature of lawyer's counsel is a certification that the accused lawyer has been advised by counsel and that counsel believes the accused lawyer is voluntarily entering into the agreement with a full understanding of its effect. Rule 21(a). The agreement also must include an affidavit of the accused lawyer verifying the facts admitted and verifying the voluntariness of the statement. Rule 21(b).

If entered into prior to the filing of formal charges, the consent agreement must be submitted to the investigative panel. The panel may reject the agreement, recommend its approval to the Supreme Court, or approve the agreement, without submission to the Supreme Court, if the agreement is for only a private admonition or deferred discipline agreement. In the latter case, the sanction can be imposed without court approval. Rule 21(c). If an agreement is submitted to the Supreme Court, the court may either reject the agreement or issue a decision based on the agreement. If a consent to sanction is rejected by either the panel or the court, the agreement and affidavit are withdrawn and may not be used against the lawyer in further proceedings

Formal Charges.

If a matter is not dismissed, the investigative panel may direct the filing of formal charges, issue a letter of caution, or propose a private admonition or deferred discipline agreement. If the lawyer does not consent to the private admonition or deferred discipline, the panel may either dismiss the complaint or direct the filing of formal charges.

Service of formal charges must be by personal service upon the lawyer or lawyer's counsel or by registered or certified mail to the lawyer's last known address. Rule 14(c). The formal charges must adequately notify the lawyer of the nature of the alleged misconduct or incapacity. Rule 22. The accused lawyer must file with the commission a written answer to the formal charges and serve the answer upon disciplinary counsel within 30 days after service of the formal charges. An extension of the time to respond can be granted by the hearing panel. Rule 23. The answer may be filed with the commission by delivering it to the commission or to the clerk of the Supreme Court or by depositing the document in the U.S. mail, properly addressed to the commission or to the clerk of the Supreme Court, with sufficient first-class postage. Service upon disciplinary counsel must comply with South Carolina Appellate Court Rule 233(b). The document filed must include proof of service on all other parties. Rule 14(c)-(d).

Failure to answer is deemed to be an admission of the factual allegations. Any failure to appear as ordered is deemed an admission of any factual allegations that were the subject of that hearing. Also, a failure to appear is concession of the merits of any motion or recommendations being considered at the hearing. A wilful failure to appear may be punished as contempt of court. Rule 24. A failure to cooperate with disciplinary authorities under prior rules has frequently been cited as an additional ground for punishment.

Sanction by Consent after Formal Charges.

An agreement to sanction by consent may be entered into after filing of formal charges. The consent must include admission or denial of the allegations contained in the formal charges and must be signed by the lawyer, by disciplinary counsel, and by counsel for the lawyer, if any. The signature of lawyer's counsel is a certification that the accused lawyer has been advised by counsel and that counsel believes the accused lawyer is voluntarily entering into the agreement with a full understanding of its effect. Rule 21(a). The agreement also must include an affidavit of the accused lawyer verifying the facts admitted and verifying the voluntariness of the statement. Rule 21(b).

If entered into after the filing of formal charges, the consent agreement must be submitted to the hearing panel. The panel may reject the agreement or recommend its approval to the Supreme Court. Rule 21(c). If an agreement is submitted to the Supreme Court, the court may either reject the agreement or issue a decision based on the agreement. If a consent to sanction is rejected by either the panel or the court, the agreement and affidavit are withdrawn and may not be used against the lawyer in further proceedings.

Discovery and Hearings.

Only limited discovery is permitted prior to the hearing on formal charges. Within 20 days after the filing of an answer, parties must exchange the names and addresses of any people known to have knowledge of relevant facts. This information may be withheld only with the permission of the hearing panel chair for good cause. Id. Disciplinary counsel and the accused lawyer also must exchange relevant unprivileged evidence, documents to be presented at the hearing, witness statements, and summaries of interviews with witnesses to be called at the hearing.

Hearing panels conduct the hearing on formal charges, submitting findings and recommendation for action to the Supreme Court. A hearing panel may designate a subpanel or hearing officer to conduct the hearing, with the full panel then reviewing the findings of the subpanel or hearing officer and issuing its own findings and recommendations to the Supreme Court. Rule 4(g). The hearing panel has no authority to dispose of a matter on its own.

The hearing panel sets a date for the exchange of lists of witnesses expected to be called at the hearing. Depositions are not allowed as a matter of right. Disciplinary counsel also must provide the lawyer with any relevant exculpatory evidence. The parties have a continuing duty to update discovery. Rule 25. Discovery must be completed within 60 days after the filing of the answer to formal charges.

Notice of the time, date, and place of a hearing is given by the hearing panel to the parties after the answer is filed or the time for submission of an answer has expired. The hearing before the hearing panel or subpanel is open to the public. Testimony must be given under oath and a verbatim record is required. A transcript must be filed promptly with the commission and a copy may be obtained by the respondent lawyer at cost to the lawyer.

Both parties may offer witnesses and have a right to cross-examine. The respondent lawyer may be required to testify if called as a witness by disciplinary counsel. Rule 26(c). At the conclusion of the hearing, the parties may submit proposed findings and recommendations. Within 30 days after the transcript is filed, the hearing panel will file a report (a different time frame applies if the matter is heard by a subpanel or hearing officer) with the Supreme Court, with service of copies upon the parties. Rule 26(d).

Supreme Court Proceedings.

Within 30 days after service of the hearing panel report and recommendations, disciplinary counsel and respondent lawyer may file a brief with the Supreme Court setting forth and arguing any exceptions to the report. Response briefs may be filed within 30 days after service of the other party's brief, and reply briefs may be filed within 15 days after service of a response brief. The failure to file exceptions to the findings, conclusions, and recommendations of the hearing panel report is construed as acceptance. Rule 27(a). Prior to the issuance of a final decision, the Supreme Court may remand for additional hearing, require additional briefing, or set all or part of the matter for oral argument. Rule 27(c). The parties do not have a right to oral argument before the Supreme Court.

Privilege and Public Access.

Communications to the commission, commission counsel, disciplinary counsel or their staffs, related to misconduct or incapacity, as well as testimony in any proceeding, are absolutely privileged and may not be the subject of civil lawsuit against a complainant or witness. Absolute immunity extends to any conduct within the course of official duties of the commission, commission counsel and staff, and disciplinary counsel and staff. Rule 13. See In re Edwards, 279 S.C. 89, 302 S.E.2d 339 (1983) (lawyer filed civil and criminal libel actions against a complainant; even though complainant was in error, lawyer reprimanded for violating previous Disc. Proc. R. 26.). See also In re Burgess, 275 S.C. 315, 270 S.E.2d 436 (1980) (lawyer improperly contacted complainant after grievance was filed under prior disciplinary procedures).

The filing of a formal charge and answer trigger public access to information on a disciplinary matter. Rule 12(b). Prior to a proceeding becoming public, the commission, Disciplinary counsel, the Supreme Court, and their staffs may not reveal the existence of a complaint except to those directly involved in the matter. The gag rule does not apply to the complainant or to the lawyer against whom the complaint is made. Thirty days after an answer to formal charges has been filed or after the time to answer has expired, the formal charges and the answer, if any, become public information. All subsequent records and proceedings are open to the public. Public access does not extend, however, to information regarding allegations of incapacity. Rule 12. The public has no right of access to attorney work product, to commission deliberations, or records of those deliberations. Rule 12(f). The commission may disclose information at any time with the written consent of the lawyer or if needed to protect another person, the public, or the administration of justice. Also, information indicating that a criminal act has occurred may be released by the commission at any time to law enforcement officials. Rule 12(c).

0.2:245      Mandatory Disbarment Upon Conviction of a Crime Involving Moral Turpitude

South Carolina does not recognize mandatory disbarment. Lawyers are, however, subject to automatic suspension on conviction of a "serious crime." S.C. App. Ct. R. 413, Rule 17(a).

0.2:250      Sanctions in Judicial Proceedings

References in this section are to subrules of S.C. App. Ct. R. 413.

Range of Sanctions.

Possible sanctions for breach of disciplinary rules include a private admonition issued by an investigative panel, a deferred discipline agreement, public reprimand, suspension for a definite period not to exceed two years, indefinite suspension, and disbarment. The commission also uses two types of letters of caution. One version involves "a written caution or warning about past or future conduct issued when it is determined that no misconduct has been committed." The second version is used when "only minor misconduct not warranting the imposition of a sanction has been committed." See Rule 2(p). The court also may order repayment of unearned or inequitable fees, assessment of costs of the disciplinary proceeding, and limitations on the nature and extent of the lawyer's future practice. Restitution be ordered to clients or third parties who have suffered financial injury as a consequence of the lawyer's misconduct.

Disbarred or suspended lawyers must notify all clients of the sanction by registered or certified mail and file an affidavit with the court within 15 days certifying compliance with the provisions of Rule 30. The lawyer also shall advise clients to seek other legal counsel of their own choice, Rule 30(a), and shall advise litigation clients of the need to substitute other counsel promptly. Rule 30(b).

In litigation matters, notice also must be given to opposing counsel. Rule 30(b). If substitute counsel is not found within 10 days, the disbarred or suspended lawyer must move for leave to withdraw. Rule 30(c). A lawyer who resigns for reasons of ethical misconduct or who is disbarred or suspended may not be employed by any member of the Bar as a "paralegal, investigator, or in any other capacity connected with the practice of law." Rule 34.

Reciprocal Discipline.

A lawyer admitted in this state must report discipline by another jurisdiction promptly to disciplinary counsel. Rule 29(a) Disciplinary counsel then files a certified copy of the disciplinary order with the commission and the court. Id. The court then provides the affected lawyer with notice to show within 30 days why the same discipline should not be imposed in this state. Rule 29(b). Unless there is a showing that due process was violated, that the proof was so lacking as to create a "clear conviction" on the part of the court that it could not accept the findings, that reciprocal discipline would be gravely unjust, or that the misconduct warrants substantially different discipline, the court must impose identical discipline. Rule 29(d). The finding of misconduct by another state conclusively establishes misconduct for purposes of sanction in this state.

Similar rules apply to a finding in another jurisdiction that a lawyer should be placed on inactive status because of incapacity. The South Carolina Supreme Court, however, may decline to require a transfer to similar status in this state if the reason for the transfer to inactive status no longer exists. Rule 29(d)(5).

Reinstatement.

Any person suspended for a definite period in excess of six months, suspended indefinitely, or disbarred from the practice of law must petition the court for reinstatement. A person disbarred may not petition for reinstatement within five years following the order of disbarment. Rule 33(a). A person suspended indefinitely may reapply only after two years. Id. If a petition for reinstatement is rejected, the person may not apply again for two more years, unless the court provides otherwise in the order denying reinstatement. Rule 33(g). A person suspended for a definite period of six months or less may be reinstated by an order of the Supreme Court after filing an affidavit with the court (served also on disciplinary counsel) "stating that the lawyer has fully complied with the requirements of the suspension order, has paid any required fees and costs, and is currently in good standing with the Commission on Continuing Legal Education and Specialization." Rule 32.

To be readmitted after any suspension in excess of six months or disbarment, a person must show by clear and convincing evidence, Rule 33(f), that there is "good and sufficient reason for reinstatement." Rule 33(b). Among the showings required to be made to the court is that the person has complied with all terms of the disciplinary order and has not attempted to engage in the unauthorized practice of law during the period of suspension or disbarment. Rule 33(e). The person seeking readmission must acknowledge the wrongfulness and seriousness of the previous violations. Rule 33(e). A person who was disbarred or indefinitely suspended also must retake and pass the bar exam and complete Bridge the Gap. Id.

The petition for reinstatement is first considered by the Committee on Character and Fitness. After a public hearing, the committee must report to the court its findings as to the applicant's character and rehabilitation and its recommendations. Rule 33(f). The court may require further briefing or oral argument before deciding whether to grant the petition. Rule 33(g). If the court determines that the conditions for reinstatement have been met, but that certain precautions are appropriate to protect the public, the court may impose conditions upon the reinstatement. Rule 33(h).

Upon the disbarment, suspension, disappearance, or death of a lawyer who does not have a law partner, if there is no person capable of handling the lawyer's affairs, disciplinary counsel shall petition the Supreme Court to appoint a lawyer to take any necessary action to protect client interests. Rule 31. The appointment continues until terminated by the Supreme Court and the lawyer appointed to serve usually serves without compensation. Rule 31 (e)-(f).

0.2:260      Criminal and Civil Liability

See discussion throughout this narrative.

0.2:270      Federal Courts and Agencies

[The discussion of this topic has not yet been written.]

0.2:280      Ethics Rules Applied in Federal Courts in South Carolina

The United States District Court for the District of South Carolina has adopted the South Carolina Rules of Professional Conduct (S.C. App. Ct. R. 407), as modified from time to time, as the ethical standards that apply in federal district court, except to the extent otherwise provided by specific district court rule. See Local Rule 83.I.08. Local rules do establish specific standards that differ from the South Carolina rules in some ways. For example, the local rules set forth restrictions on trial publicity to assure fair trials in both criminal and civil cases. See Local Rules 57.II.2 (criminal) and 83.III.02 (civil). Local rules also provide specific obligations of lawyers who conduct and defend depositions. See Local Rule 30.04.

Lawyers who have been suspended or disbarred in other jurisdictions, or who are emotionally or mentally unstable, are subject to automatic suspension or disbarment, unless the member shows good cause to the contrary. See Local Rule 83.I.09(A). Local rules also provide for institution of proceedings against attorneys who engage in misconduct. See Local Rule 83.I.09.

0.3:300   Organization of This Library and the Model Rules

[The discussion of this topic has not yet been written.]

0.4:400   Abbreviations, References and Terminology

0.4:410      "Belief" or "Believe"

The South Carolina rules define these terms identically to the Model Rules.

0.4:420      "Consults" or "Consultation"

The South Carolina Rule adds "or other person" after "client".

0.4:430      "Firm" or "Law Firm"

The South Carolina rules define these terms identically to the Model Rules except the cross reference is to the Comment to Rule 1.10 rather than Rule 1.9.

0.4:440      "Fraud" or "Fraudulent"

The South Carolina rules define these terms identically to the Model Rules.

0.4:450      "Knowingly," "Known," or "Knows"

The South Carolina rules define these terms identically to the Model Rules.

0.4:460      "Partner"

The South Carolina rules define this term identically to the Model Rules.

0.4:470      "Reasonable" or "Reasonably"

The South Carolina rules define these terms identically to the Model Rules.

0.4:480      "Reasonable belief" or "Reasonably believes"

The South Carolina rules have modified the definition of these terms to read as follows:

"Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

The South Carolina rules define "reasonably should know" identically to the Model Rules.

0.4:490      "Substantial"

The South Carolina rules define this term identically to the Model Rules.

0.4:500   Additional Definitions in SC

None.