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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary:

3.1:101      Model Rule Comparison

South Carolina Rule 3.1 and its comments are identical to Model Rule 3.1.

3.1:102      Model Code Comparison

Model Rule 3.1 is based on DR 7-102(A)(1) of the Code of Professional Responsibility with some modifications.

3.1:200   Non-Meritorious Assertions in Litigation

Primary SC References: SC Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA 61:101, ALI-LGL 170, Wolfram 11.2

It is a lawyer's ethical duty not to bring or defend an action or raise or challenge an issue unless there is a nonfrivolous basis for doing so. Rule 3.1. See In re James, 267 S.C. 474, 229 S.E.2d 594 (1976) (lawyer sued insuror without first making a good faith attempt to collect insurance without litigation). Any disciplinary punishment for violation of Rule 3.1 may be in addition to a sanction imposed by the court under S.C. R. Civ. Proc. 11(a). See 3.1:300.

Rule 3.1 does not preclude "a good faith argument for an extension, modification or reversal of existing law." The comment to Rule 3.1 also clarifies that a matter is "not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery," nor is a matter automatically deemed frivolous merely because the lawyer did not believe the client ultimately would prevail. Rule 3.1, cmt. For example, a lawyer properly may commence an action based upon a good faith argument that existing law ought to be reversed, even though the lawyer may not expect the argument to be adopted. See id.

The intentions of the party bringing the action also may be critical to a determination of whether it violates Rule 3.1. The comment to Rule 3.1 indicates that an action may not be instituted "primarily for the purpose of harassing or maliciously injuring a person." Rule 3.1, cmt. (emphasis added). While this language suggests that the existence of a legitimate justification for an action will not be sufficient if the primary motive is improper, it should be compared with Rule 4.4, which prohibits tactics by a lawyer having "no purpose other than to embarrass, delay, or burden a third person." Rule 4.4 (emphasis added). The comment to that rule suggests that the South Carolina Supreme Court intentionally limited misconduct to the use of tactics having no legitimate purpose whatsoever.

Disciplinary cases imposing public sanction for the commencement of a malicious action typically have indicated that the action was brought merely as a means of harassment. See In re Cheek, 303 S.C. 280, 400 S.E.2d 139 (1991) (libel claim was brought merely to harass or maliciously injure another); In re Amick, 288 S.C. 486, 343 S.E.2d 623 (1986) (lawyer filed claim with knowledge that limitations period had expired); In re Edwards, 279 S.C. 89, 302 S.E.2d 339 (1983) (libel actions against party filing grievance were filed merely to harass or injure another); In re Rubens, 273 S.C. 154, 255 S.E.2d 348 (1979) (lawyer encouraged client to stage false ground for divorce); In re Clarkson, 271 S.C. 5, 244 S.E.2d 512 (1978) (lawyer filed second action to collect fee after first action dismissed with prejudice).

3.1:300   Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

Primary SC References: SC Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA 61:151, ALI-LGL 170, Wolfram 11.2

The South Carolina Frivolous Civil Proceedings Sanctions Act provides as follows:

Any person who takes part in the procurement, initiation, continuation, or defense of any civil proceeding is subject to being assessed for payment of all or a portion of the attorney's fees and court costs of the other party if:

(1) he does so primarily for a purpose other than that of securing the proper discovery, joinder of parties, or adjudication of the claim upon which the proceedings are based; and

(2) the proceedings have terminated in favor of the person seeking an assessment of the fees and costs. S.C. Code Ann. 15-36-10.

The Act provides that a party "must be considered to have acted to secure a proper purpose . . . if he reasonably believes in the existence of facts upon which his claim is based" and

(1) reasonably believes that under those facts his claim may be valid under the existing or developing law; or

(2) relies upon the advice of counsel, sought in good faith and given after full disclosure of all facts within his knowledge and information which may be relevant to the cause of action; or

(3) believes, as an attorney of record, in good faith that his procurement, initiation, continuation, or defense of a civil cause is not intended to merely harass or injure the other party. S.C. Code Ann. 15-36-20.

In Hanahan v. Simpson, 326 S.C. 140, 485 S.E.2d 903 (1997), the Supreme Court held that sanctions may not be assessed when a party survives pretrial motions to dismiss and for summary judgment. The court reasoned that if the trial court concluded that the matter was sufficient to go to trial, the party against whom sanctions were sought had a reasonable belief that the claim was valid. Accord Whitfield Constr. Co v. Bank of Tokyo Trust Co., 1999 WL 997130 (Ct. App. 1999). See also John Freeman, Know When to Fold, S.C. LAW., May-June 1996, at 11 (discussing "the permissible limits of puffing and bluffing in the conduct of civil litigation").

Sanctions may also be awarded under Rule 11 of the South Carolina Rules of Civil Procedure. See Runyon v. Wright, 322 S.C. 15, 471 S.E.2d 160 (1996) (sanctions of attorney fee incurred by other party for violation of Rule 11 by filing frivolous lawsuit).

3.1:400   Civil Liability for Abusive Litigation Practice [see 1.1:520]

Primary SC References: SC Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA 61:101, ALI-LGL 77, 170, Wolfram 11.2

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

3.1:500   Complying with Law and Tribunal Rulings

Primary SC References: SC Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA 16:1201, ALI-LGL 165, Wolfram 12.1.3, 13.3.7

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

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary:

3.2:101      Model Rule Comparison

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."

3.2:102      Model Code Comparison

Model Rule 3.2 is based in part on DR 7-101(A)(1) and DR 7-102(A)(1).

3.2:200   Dilatory Tactics

Primary SC References: SC Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA 61:201, ALI-LGL 166, Wolfram 11.2.5

In addition to the duty to bring only nonfrivolous actions, the lawyer must make reasonable efforts "to expedite litigation consistent with the interest of the client." Rule 3.2. The question, according to the comment to Rule 3.2, is "whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay."

Rule 3.2 complements the general obligation of a lawyer to a client under Rule 1.3 to act with reasonable diligence in all matters, emphasizing the existence of additional responsibilities owed by the lawyer to the court and legal system in the context of litigation. The rule also complements Rule 3.4(d), since a lawyer who engages in frivolous discovery requests or who fails to make diligent efforts to comply with legitimate requests, presumably could be subject to discipline also under Rule 3.2. See In re Sifly, 279 S.C. 113, 302 S.E.2d 858 (1983) (as defendant in action, lawyer was untrustworthy and did not cooperate in efforts to settle without litigation).

3.2:300   Judicial Sanctions for Dilatory Tactics

Primary SC References: SC Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA 61:201, ALI-LGL 166, Wolfram 11.2.5

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

3.3   Rule 3.3 Candor Toward the Tribunal

3.3:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 3.3
Background References: ABA Model Rule 3.3, Other Jurisdictions
Commentary:

3.3:101      Model Rule Comparison

South Carolina Rule 3.3 and its comments are identical to Model Rule 3.3.

3.3:102      Model Code Comparison

Model Rule 3.3 is based largely on DR 7-102(A)(3), DR 7-102(A)(4), DR 7-102(A)(5), DR 7-102(B)(1) and DR 7-106(B)(1) of the Code of Professional Responsibility with some modifications.

3.3:200   False Statements to a Tribunal

Primary SC References: SC Rule 3.3(a)(1) & (2)
Background References ABA Model Rule 3.3(a)(1) & (2), Other Jurisdictions
Commentary: ABA/BNA 61:301, ALI-LGL 180, Wolfram 12.5

Rule 3.3(a) specifically prohibits any statement by a lawyer to any tribunal of material fact or law known by the lawyer to be false. The rule applies to statements made in open court as well as to pleadings and other papers filed with the court. See In re Weinberg, 317 S.C. 300, 454 S.E.2d 316 (1995) (lawyer denied knowledge of forged order when questioned by judge and misrepresented to judge resolution of matter); In re Gates, 311 S.C. 246, 428 S.E.2d 716 (1993) (lawyer misrepresented to court that client had been notified of hearing); In re Dumas, 309 S.C. 5, 419 S.E.2d 791 (1992) (deliberate misrepresentation to clerk of court); In re Iseman, 290 S.C. 391, 350 S.E.2d 922 (1986) (filing of false CLE compliance report); In re Amick, 288 S.C. 486, 343 S.E.2d 623 (1986) (lawyer misrepresented that matter had been settled in order to obtain a dismissal); In re Altman, 287 S.C. 321, 338 S.E.2d 334 (1985) (lawyer made inconsistent statements regarding CLE attendance); In re Belser, 277 S.C. 250, 287 S.E.2d 139 (1982) (lawyer misrepresented to the court that he had conflicting court appearance).

A lawyer is not required to verify every allegation in a pleading or other filing unless the lawyer asserts a fact on his or her own knowledge. Rule 3.3, cmt. The rule, however, seems to prevent a lawyer from including in a pleading statements known by the lawyer to be false. A lawyer also may be disciplined for arguing inconsistent positions in successive actions based on the same incident. In In re Jones, 313 S.C. 9, 437 S.E.2d 10 (1993), the lawyer first defended in Magistrate's Court a client charged with a traffic violation. The lawyer later represented the spouse of the client in an action alleging negligence by the first client in the same incident. "[H]aving successfully argued to the magistrate that Mr. Coleman [the client] had made a proper left turn," the lawyer should not "thereafter have alleged in circuit court in a civil action that Mr. Coleman was negligent in making the turn."

A more difficult problem for the lawyer may be whether to disclose certain information to the court to avoid its misunderstanding of the law or facts. The adversarial system contemplates that each party will present its case in the most favorable light possible. However, it is not clear that this principle extends so far as to permit a lawyer to distort the truth intentionally by the selective omission of material information. See In re Gates, 311 S.C. 246, 428 S.E.2d 716 (1993) (lawyer acted improperly by failing "to disclose facts necessary to correct a misapprehension known by him to have arisen" in a disciplinary matter). The comment to Rule 3.3, without providing examples, notes that in certain circumstances the "failure to make a disclosure is the equivalent of an affirmative misrepresentation." See In re James, 267 S.C. 474, 229 S.E.2d 594 (1976) (executor deliberately failed to disclose to court when attorney's fees were approved that he also served as lawyer for estate).

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

Primary SC References: SC Rule 3.3(a)(2)
Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
Commentary: ABA/BNA 61:301, ALI-LGL 180

3.3:310      Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

Rule 3.3(a)(2) requires the disclosure of material facts necessary to avoid assisting the criminal or fraudulent act of the client. Thus, for example, if a client produced for the Probate Court a will of the decedent, but refused to reveal to the court the existence of a codicil modifying the provisions of the will, the lawyer representing the client in the proceeding would seem to be required to disclose the existence of the codicil so as not to assist in the client's fraud. The obligation to disclose in those circumstances supersedes any obligation under Rule 1.6 not to disclose. Rule 3.3(b). See John Freeman, The Lying Client, S.C. LAW., Nov.-Dec. 1998, at 10 (discussing various ethical rules related to promoting "honesty from the witness stand," including Rule 1.6, Rule 1.2, and Rule 3.3).

3.3:400   Disclosing Adverse Legal Authority

Primary SC References: SC Rule 3.3(a)(3)
Background References: ABA Model Rule 3.3(a)(3), Other Jurisdictions
Commentary: ABA/BNA 4:301, ALI-LGL 171, Wolfram 12.8

Rule 3.3(a)(3) imposes upon a lawyer a limited duty to disclose law even if the law is adverse to the position of the client. The duty arises only with regard to directly adverse authority in the controlling jurisdiction if the law is not otherwise disclosed by opposing counsel.

3.3:500   Offering False Evidence

Primary SC References: SC Rule 3.3(a)(4)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA 61:301, ALI-LGL 175-180, Wolfram 12.3, 12.43, 12.5

3.3:510      False Evidence in Civil Proceedings

If a person other than a client intends to testify in a manner known by the lawyer to be false, the lawyer may not offer the testimony. Rule 3.3, cmt. When a client intends to commit perjury, however, the interest of client confidentiality collides with society's interest in protecting the integrity of the judicial process. Additional constitutional issues may be implicated when the matter arises in a criminal trial, given a defendant's asserted right to testify on his or her own behalf.

Rule 3.3 adopts the view that a lawyer shall not offer evidence that the lawyer knows to be false and shall not fail to disclose a material fact "necessary to avoid assisting a criminal or fraudulent act by the client." The duty to reveal fraud to a tribunal applies even to information otherwise protected by Rule 1.6. Thus, in civil cases, if efforts to dissuade the client from testifying falsely fail or if the client will not correct previous false testimony, the lawyer must reveal the falsity to the court or the opposing party. See Rule 3.3, cmt. See also ABA Formal Op. # 93-375 (disclosures adverse to client in course of bank examination); ABA Formal Op. # 93-376 (client lies during discovery).

A lawyer is subject to discipline for submitting evidence or other documents to the court with knowledge that they contain misrepresentations, forgeries, or improper notarizations. See, e.g., In re Anonymous Member of the Bar, 317 S.C. 10, 451 S.E.2d 391 (1994) (affidavit to court misrepresented that lawyer had not received retainer); In re Edwards, 323 S.C. 3, 448 S.E.2d 547 (1994) (lawyer knowingly allowed client to testify falsely); In re Gaines, 293 S.C. 314, 360 S.E.2d 313 (1987) (lawyer submitted forged verification); In re Barrow, 278 S.C. 276, 294 S.E.2d 785 (1982) (lawyer did not promptly reveal knowledge that relevant evidence had been tampered with); In re Easler, 275 S.C. 269, 269 S.E.2d 765 (1980) (lawyer permitted others to sign his name as notary on papers filed with court).

3.3:520      False Evidence in Criminal Proceedings

In criminal defense representations, if efforts to persuade the client to correct any false testimony fail, the lawyer should attempt to withdraw if withdrawal would cure the problem. If withdrawal is impossible or if it would not rectify the situation, the lawyer "should make disclosure to the court." Id. The United States Supreme Court indicated in Nix v. Whiteside, 475 U.S. 157 (1986), that threats by a lawyer to reveal perjury if the client testified falsely did not deny the defendant the effective assistance of counsel. "Whatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely." Id.

The approach taken by current Rule 3.3 as adopted in South Carolina apparently rejects an approach earlier approved by the court in In re Goodwin, 279 S.C. 274, 305 S.E.2d 578 (1983). In that case, lawyers learned that a criminal defense client intended to commit perjury. Unable to withdraw, the lawyers refused to proceed with the representation and were held in contempt without sanction. The court indicated that the lawyers should have followed Section 7.7 of the ABA Standards Relating to the Defense Function, permitting the client to make a narrative statement, without examination by the lawyers or use of the statement in closing argument. The comment to Rule 3.3 faults that approach as compromising both principles at stake, and ABA Formal Op. # 87-353 characterizes Rule 3.3 as rejecting the approach prescribed in Goodwin.

One practical problem under Rule 3.3, of course, is determining when a lawyer "knows" that the testimony before the tribunal is false. The terminology section of the rules indicates only that a lawyer "knows" a fact if the lawyer has actual knowledge of it.

3.3:530      Offering a Witness an Improper Inducement

Payment to a fact witness beyond that required to effect a subpoena under Rule 45 is ethical "[a]s long as it is made clear to the witness that the payment is not being made for the substance or the efficacy of the witness's testimony, and is being made solely for the purpose of compensating the witness for the time the witness has lost in order to give testimony . . .[where] the witness is not a party." The profession of the witness has no bearing on this finding. S.C. Bar Ethics Adv. Op. # 97-42.

3.3:540      Interviewing and Preparing Witnesses

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

3.3:600   Remedial Measures Necessary to Correct False Evidence

Primary SC References: SC Rule 3.3(a)(4)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA 61:401 et seq., ALI-LGL 117A-B, Wolfram 12.5, 12.6, 13.3.6

3.3:610      Duty to Reveal Fraud to the Tribunal

In S.C. Bar Ethics Adv. Op. # 97-14, the committee advise that a lawyer has a duty to inform the court of perjury by the lawyer's client and a witness in an automobile accident case when the lawyer learns of the perjury after trial because the duty to disclose perjury continues until the "conclusion of the proceeding" and the time for appeal had not expired.

3.3:700   Discretion to Withhold Evidence Believed to Be False

Primary SC References: SC Rule 3.3(c)
Background References: ABA Model Rule 3.3(c), Other Jurisdictions
Commentary: ABA/BNA 61:301, ALI-LGL 180, Wolfram 12.5

If the lawyer does not know of the falsity of potential evidence, but reasonably doubts the trustworthiness of the evidence, the lawyer generally may refuse to offer the evidence, at least in civil cases. Rule 3.3(c); see Rule 3.3, cmt.

3.3:800   Duty of Disclosure in Ex Parte Proceedings

Primary SC References: SC Rule 3.3(d)
Background References: ABA Model Rule 3.3(d), Other Jurisdictions
Commentary: ABA/BNA 61:301, ALI-LGL 172 , Wolfram 12.7

In an ex parte proceeding, a lawyer has a special obligation to inform the tribunal of any material facts reasonably needed by the tribunal to make an informed decision, even if the facts are adverse to the position of the client. Rule 3.3(d). The rule makes no mention of Rule 1.6, but appears to contemplate disclosure of information otherwise protected as confidential.

3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 3.4
Background References: ABA Model Rule 3.4, Other Jurisdictions
Commentary:

3.4:101      Model Rule Comparison

South Carolina Rule 3.4 and its comments are identical to Model Rule 3.4.

3.4:102      Model Code Comparison

Model Rule 3.4 is based on several provisions of the Code of Professional Responsibility, particularly DR 7-106 and 7-109.

3.4:103      Overview

Fair competition in an adversarial system requires certain ground rules to prevent abusive tactics that might unfairly alter the ability of the parties to obtain information relevant to a particular adversarial matter. Rule 3.4 elevates certain discovery abuses to matters of ethical misconduct, meaning that a lawyer may be disciplined for such abuses in addition to any civil sanction that might be imposed by the trial court.

3.4:200   Unlawful Destruction and Concealment of Evidence

Primary SC References: SC Rule 3.4(a)
Background References: ABA Model Rule 3.4(a), Other Jurisdictions
Commentary: ABA/BNA 61:701, ALI-LGL 178, 179, Wolfram 12.3, 12.4

A lawyer may not unlawfully destroy, alter, or conceal any material of potential evidentiary value, or counsel or assist another in doing so. Nor may a lawyer unlawfully obstruct access to evidence. Rule 3.4(a). See In re Barrow, 278 S.C. 276, 294 S.E.2d 785 (1982) (lawyer knew that relevant evidence had been materially altered, but failed to reveal that fact and failed to disclose photos of the evidence that might have revealed the alteration).

3.4:210      Physical Evidence of Client Crime

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

3.4:300   Falsifying Evidence

Primary SC References: SC Rule 3.4(b)
Background References: ABA Model Rule 3.4(b), Other Jurisdictions
Commentary: ABA/BNA 61:601, 61:701, ALI-LGL 178, Wolfram 12.3

A lawyer must not falsify evidence, or counsel or assist another to do so. Rule 3.4(b); see ABA Formal Op. # 93-376 (disclosure by lawyer may be required to rectify a client's false response during discovery).

3.4:310      Prohibited Inducements

A lawyer may not offer any unlawful inducement to a witness to testify. The ethics rules, therefore, would not prohibit contingent fees for an expert witness, if such fees are otherwise lawful. See Rule 3.4, cmt. It is permissible to pay the expenses of an expert and to compensate an expert for services rendered. Id.

Discipline also may be imposed for attempting improperly to induce a party not to pursue a criminal matter. See In re Gaines, 293 S.C. 314, 360 S.E.2d 313 (1987) (improper contact with a witness including offer of money to drop criminal charges).

3.4:400   Knowing Disobedience to Rules of Tribunal

Primary SC References: SC Rule 3.4(c)
Background References: ABA Model Rule 3.4(c), Other Jurisdictions
Commentary: ABA/BNA 61:1231, ALI-LGL 165, Wolfram 12.1

As an officer of the court, a lawyer, while permitted to contest openly the existence of an obligation, also is required not to disobey knowingly an obligation imposed under the rules of the tribunal. Rule 3.4(c). See In re Baldwin, 278 S.C. 392, 294 S.E.2d 790 (1982) (lawyer violated ethical rules by repeated tardiness in court and failure to appear).

3.4:500   Fairness in Pretrial Practice

Primary SC References: SC Rule 3.4(d)
Background References: ABA Model Rule 3.4(d), Other Jurisdictions
Commentary: ABA/BNA 61:701, ALI-LGL 166, Wolfram 12.4

The rule prohibits any frivolous pretrial discovery and requires a lawyer to make a reasonably diligent effort to comply with another's legally proper discovery request. Rule 3.4(d). In Samples v. Mitchell, 329 S.C. 105, 495 S.E.2d 213 (Ct. App. 1998), Mitchell hired an investigator to film a video of Samples after Mitchell and Samples were involved in an accident. When answering Samples' interrogatories, Mitchell's attorney did not disclose the existence of the video tape nor the name of the investigator filming the tape. The court held that a video is a photograph, that the video was related to Mitchell's defense, and that Mitchell's attorney should have disclosed the existence of this video tape, even if the attorney felt that the video was irrelevant or protected by work product. See also In re Golden, 329 SC 335, 496 S.E.2d 619 (1998) (disciplining respondent for making "gratuitously insulting, threatening, and demeaning comments" during the course of two depositions); In re Lyall, 328 S.C. 121, 492 S.E.2d 99 (1997) (appearance of impropriety in unilaterally limiting scope of interrogatories and in refusing to answer interrogatories seeking identity of individuals who helped answer interrogatories and employees who would have information about prior claims). Professor John Freeman has discussed the ethical obligations of lawyers in discovery in several articles. See John Freeman, Ethics in Criminal Practice, S.C. LAW., Mar.-Apr. 1998, at 11 (mentioning discovery abuses in recent criminal cases and urging South Carolina Supreme Court to upgrade discovery in criminal law field); Your Oath Requires Civility, S.C. LAW., May-June 1997, at 11 (discussing how to uphold lawyer's Oath of Office, an Oath which requires one to "abstain from all offensive personalities"); and If It's Broke, Fix It, S.C. LAW., Jan.-Feb. 1994 at 6 (discussing abuse of discovery process).

A different type of ethical problem may confront a lawyer who receives information that was not intended to be divulged by the other side of a matter. The disclosure may be inadvertent or may be the result of an intentional leak. The lawyer receiving the information faces the dilemma of whether to notify the opponent of the occurrence and, if so, of whether to review the material before its return. ABA Formal Opinion # 92-368 takes the position that, when the materials have been inadvertently produced, the receiving lawyer should avoid reviewing the materials once the problem has been recognized, should notify opposing counsel, and should handle the materials as directed by opposing counsel.

ABA Formal Opinion # 94-382 considered the specific situation in which materials are leaked to a lawyer and are received without having been solicited and without authorization. The committee distinguished the situation from the inadvertent disclosure, noting that in this case the documents have been intentionally sent by someone to the lawyer. The committee declined to create a per se rule, instead finding that the lawyer should not review the materials more than necessary to decide how to proceed. The lawyer should notify the opposing side and, if a dispute arises as to the disposition of the material, the recipient should not review the materials until a court has ruled on the issue. For a somewhat different view see John Freeman, Inadvertent Disclosure of Data to the Other Side, Part I, S.C. LAW., Nov.-Dec. 1996, at 10; John Freeman, Inadvertent Disclosure of Data to the Other Side, Part II, S.C. LAW., Jan.-Feb. 1997, at 10.

3.4:600   Improper Trial Tactics

Primary SC References: SC Rule 3.4(e)
Background References: ABA Model Rule 3.4(e), Other Jurisdictions
Commentary: ABA/BNA 61:1361, ALI-LGL 167, Wolfram 12.1

A lawyer should not attempt to circumvent the rules of evidence and procedure or attempt to influence a tribunal improperly by alluding at trial to any matter that the lawyer does not believe will be supported by admissible evidence, nor should the lawyer refer to any matter that the lawyer does not reasonably believe to be relevant. Rule 3.4(e).

In Hughes v. State, 328 S.C. 146, 493 S.E.2d 821 (1997), the court held that in a criminal case, neither the state nor the defense should be allowed to call witnesses who either side knows will invoke the Fifth Amendment in front of the jury and then be subject to inferences in a form not subject to cross examination.

3.4:700   Advising Witness Not to Speak to Opposing Parties

Primary SC References: SC Rule 3.4(f)
Background References: ABA Model Rule 3.4(f), Other Jurisdictions
Commentary: ALI-LGL 176, Wolfram 12.4.2

A lawyer may not seek to have a witness refrain from giving information to another party, unless the witness is a relative, employee, or agent of the client. Rule 3.4(f). In State v. Williams, 326 S.C. 130, 485 S.E.2d 99 (1997), Williams was convicted of murder and received a life sentence. Before his trial, the state advised a potential defense witness that it would not be "in his best interest" to talk to Williams' attorney, the potential witness being a co-defendant in the case. The state implied that such communication would jeopardize the plea offer which the potential witness had already made with the state. However, this potential defense witness could have offered exculpatory information for Williams. The Supreme Court held that the government's actions constituted unconstitutional intimidation of a witness, interfering with Williams' right to due process. The South Carolina Bar Ethics Advisory Committee has indicated that, because a city solicitor represents the people and not an individual arresting officer, the solicitor may not prohibit a public safety officer from discussing a pending criminal case with defense counsel. S.C. Bar Ethics Adv. Op. # 99-14.

3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 3.5. S.C. R. Civ. Proc. 5(b)(3).
Background References: ABA Model Rule 3.5, Other Jurisdictions
Commentary:

3.5:101      Model Rule Comparison

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.

3.5:102      Model Code Comparison

Model Rule 3.5 is based largely on DR 7-106(C)(6), DR 7-108(A), DR 7-108(B), and DR 7-110(B) of the Code of Professional Responsibility.

3.5:200   Improperly Influencing a Judge, Juror, or Other Court Official

Primary SC References: SC Rule 3.5(a)
Background References: ABA Model Rule 3.5(a), Other Jurisdictions
Commentary: ABA/BNA 61:801, 101:702, ALI-LGL 173, 175, Wolfram 11.3, 11.4

3.5:210      Improperly Influencing a Judge

Unless specifically permitted by law, ex parte communications with a judge are not allowed under Rule 3.5(b). A lawyer also should not engage in any other conduct intended to influence a judge unlawfully or in a manner prohibited by the Code of Judicial Conduct. Rule 3.5(a); see In re Mendenhall, 316 S.C. 196, 447 S.E.2d 858 (1994) (lawyer disbarred for misconduct while serving as judge, including ex parte contacts with parties and their counsel).

With the specific exception of judicial portraits and memorials, the Rules of Professional Conduct do not address directly the ethical propriety of gifts to judges. The Code of Judicial Conduct, however, does limit the circumstances in which a judge may accept a gift, and Rule 8.4 prohibits a lawyer from knowingly assisting a judge in the violation of that code. Thus, a lawyer contemplating a gift to a judge should first determine whether the gift properly could be accepted by the judge. If the gift would otherwise be acceptable, the lawyer should then consider whether the gift might influence the judge impermissibly under Rule 3.5(a).

The South Carolina Bar Ethics Advisory Committee has considered the circumstances in which a county bar association may make a gift to a judge. See S.C. Bar Ethics Adv. Op. # 90-46. The advisory opinion concluded that gifts by lawyers to judges are almost always improper. However, a county bar may invite a judge to bar functions if there is no intent to influence the judge improperly and any such influence is unlikely. Also, a testimonial gift apparently may be made, if the gift is not of significant value. The committee noted, however, that there may be a question as to whether any such testimonial is sufficiently "public" so as to fall within the scope of permitted gifts under Canon 5(C)(4) of the Code of Judicial Conduct.

3.5:220      Improperly Influencing a Juror

Contact by a lawyer with jurors, members of a jury venire, or their families is narrowly restricted. Rule 3.5(a) states only that a lawyer should not "[s]eek to influence" a juror or member of the venire "by means prohibited by law." The extent of the restriction, however, should not be underestimated.

Prior to trial, some investigation of members of a jury venire is permitted. The investigation, however, should be limited to appropriate subjects and should not serve to embarrass a potential juror in violation of Rule 4.4. See S.C. Bar Ethics Adv. Ops. # 83-28 (setting forth appropriate areas of inquiry regarding potential jurors). Moreover, neither a lawyer nor an agent of the lawyer may attempt to contact a member of the jury venire or the family of a member directly. See In re Warlick, 287 S.C. 380, 339 S.E.2d 110 (1986) (despite objections from investigator, lawyer ordered pretrial contact with prospective jurors and their families); In re Rivers, 331 S.C. 492, 331 S.E.2d 332 (1984) (relying on assurances from more senior partner that conduct was ethical, lawyer prepared questions for investigator to ask potential jurors); In re Two Anonymous Members of the South Carolina Bar, 278 S.C. 477, 298 S.E.2d 450 (1982) (prior to trial, lawyers improperly contacted client who was sister of prospective juror regarding attitudes of juror).

In a decision rendered under the prior code, the court indicated that prohibitions on contact with the family of a juror extended to persons residing in the same household or related by blood or marriage within the sixth degree of kinship to the juror. In re Two Anonymous Members of the South Carolina Bar, 278 S.C. 477, 298 S.E.2d 450 (1982).

During trial a lawyer should avoid any contact with jurors in the matter being tried. See In re Hodge, 277 S.C. 507, 290 S.E.2d 237 (1982) (lawyer communicated with juror during trial in which lawyer served as counsel). A lawyer must reveal any improper contact with potential jurors or any improper conduct of jurors. S.C. Bar Ethics Adv. Op. # 83-28.

Contact with jurors after a trial may be less likely to influence a jury verdict. However, the court has stated clearly that, even in the absence of an absolute prohibition upon post-trial contact with jurors, a lawyer does so at his or her own peril. See In re Smith, 2000 WL 136134 (2000) (attorney publicly reprimanded for communicating with jurors after verdict to determine reasons for small award of damages when jurors were still members of venire for other cases; court warns that post-trial communications with jurors are disfavored and lawyers do so at their own peril). In an earlier case, the court set forth its view that approaching jurors normally serves no purpose other than to satisfy curiosity. In re Delgado, 279 S.C. 293, 306 S.E.2d 591 (1983). Giving little weight to the argument that juror interviews can assist a lawyer in improving trial skills, the court characterized that explanation as more often an excuse than a valid reason. In Delgado, the lawyer had approached several jurors after trial to discuss their impressions of his skills. A third juror who was serving also on a second case being tried by the lawyer joined the conversation. Although the lawyer never discussed the second case with the jurors, the court noted that the rule prohibiting communication with members of the jury is intended not only to prevent intentional bias but also to prevent a lawyer from befriending jurors through innocent conversation. Id. See also S.C. Bar Ethics Adv. Ops. # 77-04 (letter to jurors after trial thanking them for service is improper as it appears to curry favor for later cases).

3.5:300   Improper Ex Parte Communication

Primary SC References: SC Rule 3.5(b)
Background References: ABA Model Rule 3.5(b), Other Jurisdictions
Commentary: ABA/BNA 61:801, 61:903, ALI-LGL 172, Wolfram 11.3.3

Rule 5(b)(3) of the South Carolina Rules of Civil Procedure requires counsel to serve proposed orders on all counsel of record. Prior to adoption of this rule in 1994, the court has stated that the better practice was to serve copies of proposed orders on all counsel of record. See First Fin. Ins. v. Sea Island Sport Fishing Soc., Inc., 327 S.C. 12, 490 S.E.2d 257 (1997). See also the comment to Canon 3 of the Code of Judicial Conduct, which requires the court to give each party an opportunity to respond to proposed findings submitted by another party; In re White, 328 S.C. 88, 492 S.E.2d 82 (1997) (respondent committed improper ex parte communications by sending a letter to judge discussing the facts and merits of the action before the judge but not sending a copy of the letter to opposing counsel).

3.5:400   Intentional Disruption of a Tribunal

Primary SC References: SC Rule 3.5(c)
Background References: ABA Model Rule 3.5(c), Other Jurisdictions
Commentary: ABA/BNA 61:901, ALI-LGL 165, Wolfram 12.1.3

Rule 3.5(c) prohibits any conduct by a lawyer "intended to disrupt" the tribunal. See In re Goude, 296 S.C. 510, 374 S.E.2d 496 (1988) (lawyer referred to complaining witness in derogatory terms in open court and again in the courthouse hallway).

3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 3.6
Background References: ABA Model Rule 3.6, Other Jurisdictions
Commentary:

3.6:101      Model Rule Comparison

Rule 3.5(c) prohibits any conduct by a lawyer "intended to disrupt" the tribunal. See In re Goude, 296 S.C. 510, 374 S.E.2d 496 (1988) (lawyer referred to complaining witness in derogatory terms in open court and again in the courthouse hallway).

3.6:102      Model Code Comparison

Model Rule 3.6 is derived from DR 7-107 but with substantial modifications and additions.

3.6:200   Improper Extrajudicial Statements

Primary SC References: SC Rule 3.6(a)
Background References: ABA Model Rule 3.6(a), Other Jurisdictions
Commentary: ABA/BNA 61:1001, ALI-LGL 169, Wolfram 12.2

A lawyer does not have unfettered rights to discuss a litigation matter, even with the consent of the client. Rule 3.6 prohibits out of court comments by a lawyer if the lawyer "knows or reasonably should know" that the comments "will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." Rule 3.6(a). The rule extends only to comments by a lawyer who is participating or who has participated in the matter discussed or by other lawyers in the same firm or governmental agency and only to comments that a "reasonable person would expect to be disseminated by means of public communication." The United States Supreme Court in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), considered the constitutionality of a similar Nevada rule and held that a narrowly tailored restriction may be imposed upon the speech of a lawyer prior to trial without violating the First Amendment rights of the lawyer. The court upheld a rule which, like Rule 3.6, on its face prevents "only speech having a substantial likelihood of materially prejudicing that proceeding."

A prosecutor in a criminal matter also must take reasonable steps to prevent persons associated with the prosecution from making statements prohibited by Rule 3.6. Rule 3.8(e).

Local federal court rules are broader and prohibit extrajudicial comments if they create a "reasonable likelihood" of material prejudice in a proceeding. See Dist. Ct. S.C., Local Crim. R. 57.II.2; Local Civ. R. 83.III.02. A similar rule was upheld as constitutional by the Fourth Circuit in In re Morrissey, 168 F.3d 134 (4th Cir. 1999). [See also 8.2:200 False Statements About Judges or Other Legal Officials]

3.6:300   Permissible Statements

Primary SC References: SC Rule 3.6(b)
Background References: ABA Model Rule 3.6(b), Other Jurisdictions
Commentary: ABA/BNA 69:1001, ALI-LGL 169, Wolfram 12.2

Rule 3.6(b) expressly permits public communication regarding the nature of the matter, the contents of public records, the existence of an ongoing investigation, the identity of the parties unless such disclosure is otherwise prohibited by law, the scheduling of the matter, or the results of any proceeding. The rule also permits a request for assistance or information in an investigation and a warning of potential harm if there is reason to believe that a likelihood of substantial harm exists. In criminal cases, a lawyer may communicate certain biographical information regarding the accused, whether the accused has been apprehended, the time and place of arrest, and the identity of the arresting officers or agency.

3.6:400   Responding to Adverse Publicity

Primary SC References: SC Rule 3.6(c)
Background References: ABA Model Rule 3.6(c), Other Jurisdictions
Commentary: ABA/BNA 61:100l, ALI-LGL 169, Wolfram 12.2

Amendments to Rule 3.6 effective in May 1996 expressly permit a lawyer to make an otherwise prohibited statement if "a reasonable lawyer would believe" the statement "is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client." A statement made under those circumstances must be limited to what is necessary to mitigate the recent adverse publicity. Rule 3.6(c).

3.7   Rule 3.7 Lawyer as Witness

3.7:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 3.7
Background References: ABA Model Rule 3.7, Other Jurisdictions
Commentary:

3.7:101      Model Rule Comparison

South Carolina Rule 3.7 and its comments are identical to Model Rule 3.7.

3.7:102      Model Code Comparison

Model Rule 3.7 is based on DR 5-101(B) and DR 5-102 of the Code of Professional Responsibility with substantial modifications.

3.7:200   Prohibition of Advocate as Witness

Primary SC References: SC Rule 3.7(a)
Background References: ABA Model Rule 3.7(a), Other Jurisdictions
Commentary: ABA/BNA 61:501, ALI-LGL 168, Wolfram 7.5

The roles of advocate and witness are generally incompatible. The conflict is apparent when the lawyer would be a witness adverse to the interests of the client. However, even if the lawyer's testimony would be favorable to the client, the client may be poorly served by having its witness also function as advocate. The testimony of the client's own advocate may be deemed less credible than if offered by an otherwise disinterested witness, thereby diminishing the value of the evidence to the client's cause. Moreover, it might well be undesirable to have counsel in a matter subjected to cross-examination.

Compared to the old Code of Professional Responsibility, Rule 3.7 simplifies the circumstances in which a lawyer is disqualified from serving as advocate in a matter. Unless one of three limited exceptions applies, a lawyer is disqualified from serving as advocate at trial if the lawyer is "likely to be a necessary witness." Rule 3.7(a). See In re Dobson, 310 S.C. 422, 427 S.E.2d 166 (1993)(lawyer failed to notify client that lawyer could be witness in subject matter of representation). See also In re Hawkins, 320 S.C. 57, 463 S.E.2d 92 (1995) (under Code of Professional Responsibility lawyer failed to withdraw as counsel even though lawyer should have known he might be called as a significant and probably adverse fact witness).

The current rule discards the approach of the Code of Professional Responsibility, which considered whether the lawyer "ought" to be called on behalf of his or her client or whether it was "obvious" that the lawyer may be called as a witness by an adverse party under circumstances where the lawyer's testimony would be prejudicial to the client. See DR 5-102. The concern reflected in that approach, that an adverse party might call a lawyer as witness in order to disqualify the lawyer as advocate, is addressed in Rule 3.7 by disqualifying the lawyer only if it shown that the lawyer is a necessary witness. Also, as noted below, the disqualification does not normally extend to other lawyers in the firm of the witness. Rule 3.7(b). These changes were intended to reduce the likelihood that Rule 3.7 would be used inappropriately to disqualify opposing counsel.

Given the prospect of disqualification, a lawyer who plans to try the case should avoid interviewing witnesses alone, unless the lawyer is prepared to seek leave to withdraw and testify if it later becomes necessary to impeach a witness on the basis of an inconsistent statement earlier made to the lawyer. ABA Standard Relating to the Administration of Criminal Justice 4-4.3(d); see S.C. Bar Ethics Adv. Op. # 90-27.

Rule 3.7 includes three exceptions to disqualification. First, if the issue for which the lawyer's testimony is needed is uncontested, there is then no conflict between the roles of advocate and witness and no disqualification is required. Rule 3.7 (a)(1). A lawyer also may testify without disqualification as to the nature and value of legal services rendered in a case. Finally, an advocate may testify if disqualification "would work substantial hardship on the client." In determining whether this final exception applies, it is relevant whether the parties reasonably could have foreseen the problem arising. Rule 3.7, cmt.

Rule 3.7 disqualifies a necessary witness only from serving as "advocate at a trial." A South Carolina advisory opinion has interpreted that language narrowly to allow a lawyer, who is disqualified from trial, to continue to assist other counsel in preparation of the case. The opinion also suggests that the disqualified lawyer even may participate in certain pretrial proceedings if the matter on which the lawyer will testify is not at issue in the proceeding. See S.C. Bar Ethics Adv. Op. # 90-27; see also ABA Informal Op. 89-1529. If the lawyer who is disqualified as a potential witness is, in fact, not called as a witness at trial, the lawyer may handle the case on appeal. S.C. Bar Ethics Adv. Op. # 90-05.

In State v. Sierra, 337 S.C. 368, 523 S.E.2d 187 (Ct. App. 1999), the Court of Appeals held that there was no absolute prohibition against a solicitor being a witness in a case, but that such testimony was disfavored because the jury might attach undue weight to the testimony. The court also held that the trial court abused its discretion in allowing the solicitor to cross examine a witness about statements made to the solicitor because the solicitor's questions amounted to testimony that was not subject to cross-examination. See also S.C. Bar Ethics Adv. Op. # 98-02 (lawyer likely to testify as guardian ad litem may not represent ward during judicial proceedings).

3.7:300   An Affiliated Lawyer as Advocate (Imputed Disqualification)

Primary SC References: SC Rule 3.7(b)
Background References: ABA Model Rule 3.7(b), Other Jurisdictions
Commentary: ABA/BNA 61:501, ALI-LGL 168, Wolfram 7.5, 7.6

The usual imputation of disqualification under Rule 1.10 does not apply to disqualifications based solely upon Rule 3.7. Rule 3.7(b) specifies that other members of the disqualified lawyer's firm are permitted to handle the matter at trial unless there is an impermissible conflict of interest arising under Rules 1.7 or 1.9. This rule disqualifying only the witness and not other members of the firm is a change from the prior code.

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 3.8
Background References: ABA Model Rule 3.8, Other Jurisdictions
Commentary:

3.8:101      Model Rule Comparison

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."

3.8:102      Model Code Comparison

Rule 3.8 is based in part on DR 7-103(A) and (B) of the Code of Professional Responsibility.

3.8:200   The Decision to Charge

Primary SC References: SC Rule 3.8(a)
Background References: ABA Model Rule 3.8(a), Other Jurisdictions
Commentary: ABA/BNA 61:601, ALI-LGL 156, Wolfram 13.10

A prosecutor has a special duty not to prosecute any charge that the prosecutor knows is not supported by probable cause. Rule 3.8(a). See State v. Needs, 333 S.C. 134, 508 S.E.2d 857 (1998) ("so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute . . . generally rests entirely in his discretion").

3.8:300   Efforts to Assure Accused's Right to Counsel

Primary SC References: SC Rule 3.8(b)
Background References: ABA Model Rule 3.8(b), Other Jurisdictions
Commentary: ABA/BNA 61:601, ALI-LGL 156, Wolfram 13.10

In addition to the usual requirements of honesty and fair-dealing, a prosecutor, by virtue of the unique position as a "minister of justice" as well as advocate, see Rule 3.8, cmt., must comply with the specific requirements of Rule 3.8(b-d) in dealing with a criminal defendant. The prosecutor must protect the defendant's right to counsel by making a reasonable attempt to ensure "that the accused has been advised of the right" to counsel, and the procedure for obtaining counsel. The prosecutor must allow the defendant a reasonable opportunity to obtain counsel. Rule 3.8(b).

The court has disqualified the solicitor's office from trying a case when the solicitor participated in secret tape recording of a meeting between defendant and his counsel. See State v. Quattlebaum, 2000 WL 61022 (2000) (conduct violated defendant's Sixth Amendment right to counsel and disqualification was necessary to protect the integrity of judicial system).

3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

Primary SC References: SC Rule 3.8(c)
Background References: ABA Model Rule 3.8(c), Other Jurisdictions
Commentary: ABA/BNA 61:601, ALI-LGL 156, Wolfram 13.10

If the defendant is not represented by counsel, the prosecutor should not "seek to obtain . . . a waiver of important pretrial rights, such as the right to a preliminary hearing." Rule 3.8(c). The comment limits Rule 3.8(c), however, by making the rule inapplicable to defendants appearing pro se with court approval. The comment also clarifies that an unrepresented suspect may be lawfully questioned if the suspect has knowingly waived rights of silence and counsel.

3.8:500   Disclosing Evidence Favorable to the Accused

Primary SC References: SC Rule 3.8(d)
Background References: ABA Model Rule 3.8(d), Other Jurisdictions
Commentary: ABA/BNA 61:601, ALI-LGL 156, Wolfram 13.10.5

The prosecutor is required to "[m]ake timely disclosure to the defense of all evidence or information" that tends to negate guilt or mitigate the offense. Rule 3.8(d). In connection with sentencing, the prosecution must provide to the defense and the court all "unprivileged mitigating information known to the prosecutor." Id. The requirements of Rule 3.8(d) are subject to an exception when the prosecutor obtains a protective order, such as in the case of information which if disclosed could result in substantial individual or public harm. See Rule 3.8(d) and cmt.

Failure to disclose exculpatory evidence can also violate the defendant's constitutional right to due process. See Brady v. Maryland, 373 U.S. 83 (1963). In Gibson v. State, 334 S.C. 515, 514 S.E.2d 320 (1999), the court held that "[a] Brady violation is material when there is a reasonable probability that, but for the government's failure to disclose Brady evidence, the defendant would have refused to plead guilty and gone to trial." The court also held that a Brady violation is per se prosecutorial misconduct, and that it does not matter "whether the prosecutor's misconduct in failing to reveal Brady evidence is due to negligence or an intentional act because a court may find a Brady violation irrespective of the good faith or bad faith of the prosecutor." See also State v. Kennerly, 331 S.C. 442, 503 S.E.2d 214 (Ct. App. 1998) (under Brady, prosecutor must disclose evidence (1) in its possession, (2) which is favorable to the accused, (3) and material to the accused's guilt or punishment; evidence is not material if defendant discovers the information in time to use it at trial, despite prosecutor's nondisclosure).

3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

Primary SC References: SC Rule 3.8(e)
Background References: ABA Model Rule 3.8(e), Other Jurisdictions
Commentary: ABA/BNA 61:601, ALI-LGL 156, Wolfram 13.10

Rule 3.8(e) provides that a prosecutor in a criminal case must "exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6."

3.8:700   Issuing a Subpoena to a Lawyer

Primary SC References: SC Rule 3.8(f)
Background References: ABA Model Rule 3.8(f), Other Jurisdictions
Commentary: ABA/BNA 55:1301, ALI-LGL 156

Rule 3.8(f) prohibits a prosecutor from requiring a lawyer to appear under subpoena before a grand jury or in any other criminal proceeding regarding a past or present client of the lawyer unless the prosecutor reasonably believes that the information sought is relevant and unprivileged and that the information is not available from any reasonable alternative source.

3.8:800   Making Extrajudicial Statements

Primary SC References: SC Rule 3.8(g)
Background References: ABA Model Rule 3.8(g), Other Jurisdictions
Commentary: ABA/BNA 61:601, ALI-LGL 169, Wolfram 12.2.2

Even though South Carolina has not adopted ABA Model Rule 3.8(g) regarding extrajudicial statements by prosecutors, they are still subject to the general restrictions contained in Rule 3.8.

3.8:900   Peremptory Strikes of Jurors

Primary SC References: SC Rule 3.8
Background References: Other Jurisdictions
Commentary:

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

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 3.9
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary:

3.9:101      Model Rule Comparison

South Carolina Rule 3.9 and its comments are identical to Model Rule 3.9.

3.9:102      Model Code Comparison

Rule 3.9 did not have an exact counterpart in the Code of Professional Responsibility.

3.9:200   Duties of Advocate in Nonadjudicative Proceedings

Primary SC References: SC Rule 3.9
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary: ABA/BNA , ALI-LGL 164, Wolfram 13.8

Rule 3.3(a)-(c), requiring that a lawyer not make false statements to a tribunal and requiring the disclosure of certain facts and law to avoid misleading the tribunal, apply equally in nonadjudicative matters, such as rule-making or policy-making hearings before a legislative or administrative body. Rule 3.9. Rule 3.4(a)-(c), prohibiting knowing disobedience of rules and prohibiting the alteration, concealment, or falsification of evidence also apply in nonadjudicative proceedings, as does Rule 3.5, which prohibits improper attempts to influence or disrupt a proceeding. Rule 3.9.

See S.C. Bar Ethics Adv. Op. # 76-05 (advisory opinion under prior code that lawyer who discovers information that, if not disclosed, will cause Worker's Compensation Commission to be misled, must withdraw if client does not agree to disclose); S.C. Bar Ethics Adv. Op. # 85-19 (advisory opinion under prior code that lawyer-legislator may represent a client before state agency if lawyer does not attempt to influence the agency improperly).