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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1   Rule 8.1 Bar Admission and Disciplinary Matters

8.1:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 8.1. See also S.C. App. Ct. R. 402 (Admission to Practice Law), 403 (Trial Experiences), 404 (Admission Pro Hac Vice), 405 (Limited Certificate of Admission to Practice Law in South Carolina), 414 (Limited Certificate to Practice Law for Clinical Law Program Teachers), 415 (Limited Certificate of Admission for the Retired Attorney Pro Bono Participation Program).
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary:

8.1:101      Model Rule Comparison

South Carolina Rule 8.1 and its comments are identical to Model Rule 8.1.

8.1:102      Model Code Comparison

Rule 8.1 is derived largely from DR 1-101 of the Code of Professional Responsibility.

8.1:200   Bar Admission

Primary SC References: SC Rule 8.1
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary: ABA/BNA 21:101, 10l:1, ALI-LGL 2, Wolfram 15.2, 15.3

8.1:210      Bar Admission Agency

Two agencies of the Supreme Court, the Board of Law Examiners and the Committee on Character and Fitness, determine admission to practice in South Carolina. See S.C. App. Ct. R. 402.

8.1:220      Bar Admission Requirements

A candidate for admission to the Bar must be 21-years-old, of good moral character as certified by the Committee on Character and Fitness, academically qualified including passage of the bar examination and the Bridge the Gap program, and must not be disbarred, suspended, or subject to pending disciplinary proceedings in another jurisdiction. S.C. App. Ct. R. 402(c). To retain a license to practice law, a member of the Bar must satisfy annual continuing legal education requirements or obtain an exemption under S.C. App. Ct. R. 408.

Lawyers admitted to practice in a jurisdiction other than South Carolina, who are employed or supervised by the legal department of a business, may obtain a Limited Certificate of Admission, which authorizes the individual to represent the employer before state agencies in compliance with agency regulations or in Magistrate's Court in civil proceedings. S.C. App. Ct. R. 405. The holder of a limited certificate may appear in other courts only if admitted pro hac vice and accompanied by associated counsel who is licensed in South Carolina. Special rules govern the admission to practice of law school professors, S.C. App. Ct. R. 402(h), and of clinical law program teachers, S.C. App. Ct. R. 414. Special rules also permit qualified retired lawyers to obtain a limited certificate to represent pro bono and legal services clients with supervision. S.C. App. Ct. R. 415

8.1:230      Admission on Motion

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

8.1:240      Admission Pro Hac Vice [see also 5.5:230]

8.1:300   False Statements of Material Fact in Connection with Admission or Discipline

Primary SC References: SC Rule 8.1(a)
Background References: ABA Model Rule 8.1(a), Other Jurisdictions
Commentary: ABA/BNA 21:301, 101:201, Wolfram 15.3.1

Rule 8.1 of the Rules of Professional Conduct prohibits any statement by an applicant to the Bar or by a lawyer in connection with an application that is known to be false. Rule 8.1(a). See In re Edwards, 327 S.C. 161, 488 S.E.2d 871 (1997) (failure to disclose on bar application all lawsuits or judicial actions of any kind to which applicant has been party constitutes material misrepresentation); In re Elliott, 268 S.C. 522, 235 S.E.2d 111 (1977) (lawyer disbarred for false statements on bar application).

8.1:400   Duty to Volunteer Information to Correct a Misapprehension

Primary SC References: SC Rule 8.1(b)
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:

The applicant and any lawyer in connection with the application shall not fail to disclose information "necessary to correct a misapprehension known by the person to have arisen in the matter." Rule 8.1(b).

8.1:410      Protecting Client Confidential Information

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

8.1:500   Application of Rule 8.1 to Reinstatement Proceedings

Primary SC References: SC Rule 8.1(b)
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:

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

8.2   Rule 8.2 Judicial and Legal Officials

8.2:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 8.2
Background References: ABA Model Rule 8.2, Other Jurisdictions
Commentary:

8.2:101      Model Rule Comparison

South Carolina Rule 8.2 and its comments are identical to Model Rule 8.2.

8.2:102      Model Code Comparison

Rule 8.2 is derived from DR 8-102 and DR 8-103 of the Code of Professional Responsibility.

8.2:200   False Statements About Judges or Other Legal Officials

Primary SCReferences: SC Rule 8.2(a)
Background References: ABA Model Rule 8.2(a), Other Jurisdictions
Commentary: ABA/BNA 101:601, ALI-LGL 174, Wolfram 11.3.2

Rule 8.2 imposes additional limits on a lawyer's speech regarding judicial officers so as to preserve public confidence in the administration of justice. Adopting language similar to that found in constitutional libel cases, Rule 8.2 prohibits any statement by a lawyer about the qualifications or integrity of a judge or legal officer or a candidate for judicial office if the lawyer knows the statement is false or if the lawyer speaks with reckless disregard for the truth or falsity of the statement.

8.2:300   Lawyer Candidates for Judicial Office

Primary SC References: SC Rule 8.2(b)
Background References: ABA Model Rule 8.2(b), Other Jurisdictions
Commentary: ABA/BNA 101:601, ALI-LGL 174, Wolfram 17.2

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

8.3   Rule 8.3 Reporting Professional Misconduct

8.3:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 8.3
Background References: ABA Model Rule 8.3, Other Jurisdictions
Commentary:

8.3:101      Model Rule Comparison

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"trustworthiness" 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.

8.3:102      Model Code Comparison

Rule 8.3 is derived from DR 1-103(A) of the Code Professional Responsibility.

8.3:200   Mandatory Duty to Report Serious Misconduct

Primary SC References: SC Rule 8.3(a)
Background References: ABA Model Rule 8.3(a), Other Jurisdictions
Commentary: ABA/BNA 101:201, ALI-LGL 5, Wolfram 12.10

As a self-regulating profession, lawyers are expected to report misconduct by other lawyers to appropriate disciplinary authorities. See Rule 8.3. The duty to report the misconduct of others extends even to misconduct by another lawyer in the same firm. See In re Rivers, 285 S.C. 492, 331 S.E.2d 332 (1984). The duty of a lawyer to report another lawyer also may not be relieved even if a client already has separately reported the misconduct. See S.C. Bar Ethics Adv. Op. # 89-04. However, a lawyer is not required by Rule 8.3 to report all violations that are discovered. A lawyer must report misconduct if the lawyer has knowledge of a violation and if the violation "raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer." Rule 8.3(a). See John Freeman, Reporting Lawyer Misconduct, S.C. LAW., May-June 1994, at 7.

The comment to Rule 8.3 suggests that, in deciding whether to report a violation, the lawyer should consider whether the victim is likely to discover the offense. A report is more important if the victim is not likely to discover the violation independently. The comment notes also that the substantiality of a question raised depends upon the seriousness of the apparent violation and not the amount of evidence available.

The South Carolina Bar Ethics Advisory Committee has considered whether an offense raises a substantial question as to a lawyer's fitness so as to require reporting under Rule 8.3. S.C. Bar Ethics Adv. Op. # 92-01. Specifically considering whether a lawyer must report another's breach of Rule 4.5 (threatening criminal prosecution), the committee concluded that Rule 8.3 makes sense only if it is assumed that not all violations raise substantial questions as to a lawyer's fitness and if it is assumed that some violations other than those relating to honesty and trustworthiness must be reported. The committee found, however, that there was no conclusive guidance available as to whether conduct of the type proscribed by Rule 4.5 must be reported.

8.3:300   Reporting the Serious Misconduct of a Judge

Primary SC References: SC Rule 8.3(b)
Background References: ABA Model Rule 8.3(b), Other Jurisdictions
Commentary: ABA/BNA 101:201, ALI-LGL 5, Wolfram 12.10

A similar rule applies to knowledge of misconduct by a judge. Rule 8.3(b).

8.3:400   Exception Protecting Confidential Information

Primary SC References: SC Rule 8.3(c)
Background References: ABA Model Rule 8.3(c), Other Jurisdictions
Commentary: ABA/BNA 101:201, ALI-LGL 113-117A, Wolfram 12.10

An important further limitation on the duty to report under Rule 8.3 is that a lawyer is not required to report information of misconduct that is protected under Rule 1.6 as information relating to the representation of a client. The comment to Rule 8.3 suggests, however, that the lawyer should encourage the client to permit disclosure to disciplinary authorities if the disclosure would not substantially prejudice the client.

8.4   Rule 8.4 Misconduct

8.4:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 8.4
Background References: ABA Model Rule 8.4, Other Jurisdictions
Commentary:

8.4:101      Model Rule Comparison

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.

8.4:102      Model Code Comparison

Rule 8.4 is derived largely from DR 1-102(A) and DR 9-101(C) of the Code of Professional Responsibility.

8.4:200   Violation of a Rule of Professional Conduct

Primary SC References: SC Rule 8.4(a)
Background References: ABA Model Rule 8.4(a), Other Jurisdictions
Commentary: ABA/BNA 101:101, ALI-LGL 2, Wolfram 3.3

The actions or omissions of a lawyer that constitute misconduct subjecting a lawyer to discipline are set forth generally both in Rule 8.4 of the Rules of Professional Conduct and in Rule 7 of the Rules of Disciplinary Procedure. See S.C. App. Ct. R. 413. Each rule is subject to broad interpretation, providing the court with sufficient latitude to impose discipline whenever it deems necessary and appropriate. See, e.g., S.C. App. Ct. R. 413, Rule (7)(a)(5) (misconduct includes any "conduct demonstrating an unfitness to practice law").Any act or omission by a lawyer violating the Rules of Professional Conduct or any assistance or inducement to another to violate a Rule of Professional Conduct or the Code of Judicial Conduct clearly subjects the lawyer to discipline. Rule 8.4(a); S.C. App. Ct. R. 413, Rule 7(a).

Discipline may be imposed for lack of professional competence under either Rule 8.4 (for breach of Rule 1.1 requiring competence) or Rule 7(a)(5) of the Rules of Disciplinary Procedure. See In re Ballard, 312 S.C. 227, 458 S.E.2d 545 (1995). The Rules of Disciplinary Procedure also permit discipline to be based upon a violation of the oath taken when a lawyer is sworn into the Bar. See S.C. App. Ct. R. 413, Rule 7(a)(6) [the oath appears in S.C. App. Ct. R. 402(g)].

It is well-established that any act constituting misconduct may be punished regardless of whether the act involved the practice of law. See Rule 8.4, cmt. ("A lawyer's abuse of public office can suggest an inability to fulfill the professional role of attorney."). See In re Rogers, 313 S.C. 95, 437 S.E.2d 62 (1993) (RICO violation while in public office); In re Limehouse, 307 S.C. 278, 414 S.E.2d 783 (1992) (extortion and witness tampering while in public office). The same is true of abuse of positions of private trust. See In re Sipes, 297 S.C. 531, 377 S.E.2d 574 (1989) (misuse of Girl Scout cookie proceeds; forgery).

8.4:300   Commission of a Crime

Primary SC References: SC Rule 8.4(b)
Background References: ABA Model Rule 8.4(b), Other Jurisdictions
Commentary: ABA/BNA 101:301, ALI-LGL 8, Wolfram 3.3.2

Conviction of a crime of moral turpitude or of a "serious crime" as defined in S.C. App. Ct. R. 413 subjects the lawyer to discipline. S.C. App. Ct. R. 413, Rule 7(a)(4). The broad language of Rule 8.4 also subjects a lawyer to discipline if the lawyer commits any criminal act that reflects on a lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. Rule 8.4(b).

Lawyers have been subject to discipline for various criminal violations, such as:

violation of federal tax laws, e.g., In re Foushee, 309 S.C. 376, 424 S.E.2d 470 (1992) (failure to file federal tax return);

obstruction of justice and related offenses, e.g. In re Caskey, 276 S.C. 410, 279 S.E.2d 129 (1981) (conviction for criminal conspiracy and obstruction of justice) drug offenses, e.g., In re Holt, 317 S.C. 48 , 451 S.E.2d 884 (1994) (possession of cocaine or heroine);

financial crimes, e.g., In re Cole, 316 S.C. 222, 449 S.E.2d 249 (1994) (multiple counts of fraud on financial institution);

criminal sexual conduct, e.g, In re Sprott, 288 S.C. 457, 343 S.E.2d 448 (1986)(criminal sexual assault of a minor);

misconduct in public office, e.g. In re Mendenhall, 316 S.C. 196, 447 S.E.2d 858 (1994) (guilty plea to two counts of official misconduct while serving as a judge involving sexual favors received for favorable rulings)

Misdemeanor driving under the influence is not a crime of moral turpitude. See In re Bradley, 278 S.C. 426, 297 S.E.2d 797 (1982). Simple possession and illegal use of marijuana is not a crime of moral turpitude, but does subject a lawyer to discipline as being unfit to practice. See In re an Anonymous Member of the South Carolina Bar, 293 S.C. 329, 360 S.E.2d 322 (1987).

Under South Carolina Rule 8.4(c) a lawyer is subject to discipline if the lawyer engages in conduct involving moral turpitude, even if the conduct is not criminal. In most cases, such conduct is covered by one of the other provisions of Rule 8.4, particularly the provisions prohibiting deceit or conduct prejudicial to the administration of justice. Rule 8.4(c), however, provides an additional basis for discipline for serious wrongdoing not covered by one of the other rules.

8.4:400   Dishonesty, Fraud, Deceit and Misrepresentation

Primary SC References: SC Rule 8.4(c)
Background References: ABA Model Rule 8.4(c), Other Jurisdictions
Commentary: ABA/BNA 101:401, ALI-LGL 2, Wolfram 3.3.3

Rule 8.4 prohibits any conduct by a lawyer "involving dishonesty, fraud, deceit or misrepresentation," regardless of the context in which it occurs. Often, the lawyer's misrepresentations or deceitful conduct are directed either toward the client or a tribunal. E.g. In re Ring, 320 S.C. 249, 464 S.E.2d 328 (1995) (lawyer provided client with copies of checks in effort to deceive client into believing that trust funds had been properly paid out); In re Smith, 310 S.C. 449, 427 S.E.2d 634 (1992) (lawyer misrepresented to client nature of document being signed); In re Pridgen, 288 S.C. 96, 341 S.E.2d 376 (1986) (false report of CLE attendance). Forged signatures and false notarization have been the basis of discipline. E.g. In re Edwards, 323 S.C. 3, 448 S.E.2d 547 (1994) (forged client signature and false notarization by lawyer). Lawyers who have neglected cases sometimes compound the problem by misrepresentations to their clients. In re Meeder, 320 S.C. 82, 463 S.E.2d 312 (1995) (lawyer misrepresented that neglected case was being pursued). Financial misconduct has often been the basis of professional discipline. E.g. In re Gibbes, 323 S.C. 80, 450 S.E.2d 588 (1994) (lawyer altered checks and kited checks to pay previously ordered restitution); In re Lempesis, 293 S.C. 510, 362 S.E.2d 10 (1987) (lawyer failed to repay debt to client when due; forged indorsements; sought excessive travel costs from client).

Although the ethics rules do not specifically mention tape recordings, the South Carolina Supreme Court has made clear its disapproval of surreptitious recordings by a lawyer as being a deceptive activity. See In re Anonymous Member of the South Carolina Bar, 304 S.C. 342, 404 S.E.2d 513 (1991) (lawyer may not record any conversation by any electronic device without prior knowledge and consent of all parties to conversation, regardless of lawyer's purpose or content of conversation). Earlier rulings had prohibited secret tape recording in specific situations. See In re Anonymous Member of the South Carolina Bar, 283 S.C. 369, 322 S.E.2d 667 (1984) (improper for lawyer to record without prior consent any conversation with adversary or potential adversary); In re Warner, 286 S.C. 459, 335 S.E.2d 90 (1985) (lawyer reprimanded for providing client with the means to record secretly Family Court judge in chambers).

The court subsequently recognized certain exceptions to the blanket prohibition for recordings made in connection with a legitimate criminal investigation by an appropriate law enforcement agency. See In re Attorney General's Petition, 308 S.C. 114, 417 S.E.2d 526 (1992).

Following In re Anonymous in 1991, the South Carolina Ethics Advisory Committee issued a controversial advisory opinion interpreting this series of decisions as prohibiting a lawyer from recording, causing to be recorded, counseling a client to record, or assisting a client in recording any conversation surreptitiously. S.C. Bar Ethics Adv. Op. # 91-14. A year later, the committee considered the matter again and concluded (1) that it is clear that it is improper for a lawyer to record surreptitiously, (2) that it should be proper for the lawyer to advise the client whether recording is legal, and (3) that it is unclear from the court's rulings whether a lawyer may advise a client actually to engage in secret recording. S.C. Bar Ethics Adv. Op. # 92-17.

8.4:500   Conduct Prejudicial to the Administration of Justice

Primary SC References: SC Rule 8.4(d)
Background References: ABA Model Rule 8.4(d), Other Jurisdictions
Commentary: ABA/BNA 101:501, ALI-LGL 2, Wolfram 3.3.2

Rule 8.4(c) defines misconduct to include conduct prejudicial to the administration of justice. See In re Brooks, 274 S.C. 601, 267 S.E.2d 74 (1980) (failure to stop for a police officer; participation in a drug transaction although not criminally charged).

A lawyer's wilful failure to comply with a valid court order issued either by a court of this state or of another jurisdiction is a ground for professional discipline. S.C. App. Ct. R. 413, Rule 7(a)(7). See In re Altman, 287 S.C. 321, 338 S.E.2d 334 (1985) (lawyer held in contempt for failing to return certificate promptly upon suspension); In re King, 279 S.C. 48, 301 S.E.2d 752 (1983) (lawyer failed to disburse escrow after being directed to do so by Master's decree, appeal from which had been dismissed); In re Norwood, 273 S.C. 780, 260 S.E.2d 177 (1979) (lawyer willfully defied order in domestic case not to remove property from the marital residence and fled state after being held in contempt of court).

8.4:600   Implying Ability to Influence Public Officials

Primary SC References: SC Rule 8.4(e)
Background References: ABA Model Rule 8.4(e), Other Jurisdictions
Commentary: ABA/BNA 101:701, ALI-LGL 173

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

8.4:700   Assisting Judge or Official in Violation of Duty

Primary SC References: SC Rule 8.4(f)
Background References: ABA Model Rule 8.4(f), Other Jurisdictions
Commentary: ABA/BNA , ALI-LGL 173

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

8.4:800   Discrimination in the Practice of Law

Primary SC References: SC Rule 8.4
Background References: Other Jurisdictions
Commentary: ABA/BNA 91:301

Cf. John Freeman, E-Mail Ethics, S.C. LAW., July-Aug. 1999, at 11 (discussing various ethical issues relating to e-mail transmissions, including forwarding by a judge of e-mail with racially or sexually insensitive statements).

8.4:900   Threatening Prosecution

Primary SC References: SC Rule 8.4
Background References: Other Jurisdictions
Commentary: ABA/BNA 1:801, 61:601

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

8.5   Rule 8.5 Disciplinary Authority; Choice of Law

8.5:100   Comparative Analysis of SC Rule

Primary SC References: SC Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary:

8.5:101      Model Rule Comparison

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.

8.5:102      Model Code Comparison

There was no counterpart to Rule 8.5 in the Code of Professional Responsibility.

8.5:200   Disciplinary Authority

Primary SC References: SC Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA 101:2001, ALI-LGL 5, Wolfram 3.2

The South Carolina Supreme Court has jurisdiction over any lawyer admitted to practice in South Carolina, regardless of where the lawyer practices and regardless of where the misconduct occurs. Rule 8.5.

8.5:300   Choice of Law

Primary SC References: SC Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA 101:2101, ALI-LGL 2, Wolfram 2.6.1

If there are conflicting ethical obligations imposed upon a lawyer admitted in several jurisdictions, basic conflict of laws principles apply. See Rule 8.5, cmt.