In re: Amendments to Rule 416,
Resolution of Fee Disputes Board.
O R D E R
The South Carolina Bar has proposed amending Rule 416 of the South Carolina Appellate Court Rules to improve the administration of the fee disputes process. The Bar seeks to amend Rule 2 of Rule 416 by defining "client" as "a person who has engaged the professional legal services of an attorney who is a member of the South Carolina Bar." The Bar also seeks to amend Rule 12(C) of Rule 416 to provide for additional options for reassigning a dispute when an assigned member is delinquent in investigating the dispute and making a recommendation. Finally, the Bar seeks to amend Rule 20(A) of Rule 416 to state that filing an appeal from a decision of the Board does not stay the issuance of a Certificate of Non-Compliance, and to amend Rule 20(C) to state that the parties and the circuit court shall provide the Board with notice of all proceedings and the final disposition. The Bar's proposed amendments are approved.
In addition, this Court, on its own motion, has amended Rule 20(A) of Rule 416, SCACR, to state that a decision of the Resolution of Fee Disputes Board can be vacated by the circuit court only when one of the five grounds set forth in Rule 20(A) has occurred.
Pursuant to Rule 22 of Rule 416, SCACR, and Article V, § 4, of the South Carolina Constitution, we hereby amend Rule 416, SCACR, to reflect the changes set forth above. These amendments shall be effective immediately. The amended provisions are attached.
IT IS SO ORDERED.
s/Jean H. Toal C.J.
s/E.C. Burnett, III J.
s/Costa M. Pleicones J.
Columbia, South Carolina
November 5, 2003
AMENDMENTS TO RULE 416
RESOLUTION OF FEE DISPUTES BOARD
RULE 2. JURISDICTION
The purpose of the Board is to establish procedures whereby a dispute concerning fees, costs or disbursements between a client and an attorney who is a member of the South Carolina Bar (the Bar) may be resolved expeditiously, fairly and professionally, thereby furthering the administration of justice, encouraging the highest standards of ethical and professional conduct, assisting in upholding the integrity and honor of the legal profession, and applying the knowledge, experience and ability of the legal profession to the promotion of the public good. As used in these Rules, "fee" is deemed to include a legal fee, costs of litigation and disbursements associated with a legal cause, claim or matter and "client" is defined as a person who has engaged the professional legal services of an attorney who is a member of the South Carolina Bar. The Board may decide fee disputes between two or more members of the South Carolina Bar when those disputes arise from a single case or fee share provided all parties consent in writing to the Board's jurisdiction.
Under no circumstances will the Board participate in: (1) a fee dispute involving an amount in dispute of $50,000 or more, (2) the dissolution of a law partnership, law practice or any other business relationship between attorneys, or (3) disputes over which, in the first instance, a court, commission, judge, or other tribunal has jurisdiction to fix the fee. When an allegation of attorney misconduct arises out of a fee dispute, the Board, in its discretion, may (1) address the alleged misconduct in its findings, or (2) refer the matter to the Commission on Lawyer Conduct. If the alleged misconduct does not arise out of a fee dispute, it shall be referred to the Commission on Lawyer Conduct.
No fee dispute may be filed with the Board more than three (3) years after the dispute arose.
Jurisdictional issues shall be determined by the circuit chair.
RULE 12. SCHEDULE OF PROCEEDINGS
(A) All fee disputes should be resolved within six (6) months. The assigned member's report should be completed within thirty (30) to ninety (90) days after being forwarded by the circuit chair. A fee dispute may not exceed six (6) months without the written consent of the circuit chair for good cause shown. Any extension of time granted by the circuit chair must be for a specified period of time which shall be the least amount of time deemed necessary to resolve the dispute.
(B) If an assigned member does not respond to reminders from the circuit chair, the Bar office may intervene upon request of the circuit chair.
(C) If a fee dispute has been assigned and is pending, without an extension approved by the circuit chair,
(1) more than ninety (90) days, then the circuit chair may, at his or her discretion:
(a) reassign the fee dispute; or
(b) if the amount exceeds $5,000, appoint a hearing panel, which shall schedule a hearing within thirty (30) days.
(2) more than six (6) months, then the circuit chair shall, with the concurrence of the Executive Council Chair:
(a) reassign the fee dispute;
(b) if the amount exceeds $5,000, appoint a hearing panel, which shall schedule a hearing within thirty (30) days; or
(c) as a last resort, return all investigative notes and application to a designated Bar staff member who is a member of the Bar for investigation as the assigned member.
In these events, the original assigned member shall immediately turn over notes and files to the circuit chair.
(D) If the circuit chair is delinquent, then the case may be reassigned to the Executive Council Chair or the Executive Council Chair's designee.
RULE 20. APPEALS
(A) A party may appeal the final decision of the Board to the circuit court in the county where the principal place of practice of the attorney is located, with written notice to the South Carolina Bar Resolution of Fee Disputes Board, Post Office Box 608, Columbia, S.C. 29202. The court shall only vacate a final decision of the Board where:
(1) the decision was procured by corruption, fraud or other undue means;
(2) there was evident partiality or corruption in an assigned member or hearing panel member, or misconduct prejudicing the rights of any party;
(3) the assigned member or hearing panel members exceeded their powers;
(4) the hearing panel members refused to postpone the hearing, if any, upon sufficient cause being shown therefore, or the assigned member or hearing panel members refused to hear evidence material to the controversy, or otherwise conducted the proceeding so as to substantially prejudice the rights of a party;
(5) the hearing panel chair did not provide notice of the hearing as required under Rule 15.
Filing an appeal does not stay the issuance of a Certificate of Non-Compliance.
(B) An appeal must be made within thirty (30) days after the mailing of a copy of the final decision by the appealing party, except that if based upon corruption, fraud or other undue means, it shall be made within thirty (30) days after such grounds are known or should have been known.
(C) The Board shall supply to the circuit court the following material which shall constitute the record on appeal:
the application, the decision of the assigned member, the concurrence or non-concurrence of the circuit chair, and in disputes involving amounts greater than $5,000, the decision of the hearing panel. The parties and the circuit court shall provide the Board, at the above address, notice of all proceedings and the final disposition.
(D) In vacating the final decision, the court may order a reconsideration by a new assigned member appointed by the circuit chair, or if vacating the decision of a hearing panel, a rehearing before a new hearing panel appointed by the circuit chair. When a final decision of the Board is vacated, any judgment which may have been entered pursuant to that decision also is vacated.