South Carolina Court Administration

South Carolina Supreme Court
Columbia, South Carolina




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TO: Magistrates and Municipal Judges

FROM: Robert L. McCurdy, Assistant Director

RE: Prosecutorial Independence

DATE: June 5, 2014

The Ethics Advisory Committee of the South Carolina Bar recently issued Ethics Advisory Opinion 14-02, addressing whether a lawyer/municipal prosecutor may ethically discharge his duties as a prosecutor in light of the municipality's policy of no prosecutorial discretion. The municipality has a policy of no dismissals and no negotiations – the case must go to trial as charged unless the arresting officer or his supervisor reduces the charge. The municipality's policy prevents the lawyer from exercising prosecutorial discretion as to which charges should be tried, which charges should be subject to a plea agreement or reduced, and which charges should be dismissed.

The advisory opinion concluded that the municipality's policy is inconsistent with the lawyer's obligation under Rule 3.8 (a) of the South Carolina Rules of Professional Conduct. The opinion provided that "[t]he mandate of Rule 3.8 (a)….makes it clear that prosecutorial discretion is not just a good idea, but rather is an ethical requirement. Given that the municipality's policy seeks to eliminate the very prosecutorial discretion that is required by Rule 3.8 (a), the Committee concludes that it would be improper for the lawyer to serve subject to that policy."

In regards to prosecutorial discretion, I would also refer you to a recent South Carolina Supreme Court decision, In re Richland County Magistrate's Court, 699 S.E. 2d 161, 389 S.C. 408 (S.C. 2010), in which the Supreme Court held that a non-lawyer's representing a business to prosecute criminal misdemeanor charges in summary court constitutes the unauthorized practice of law. In that case, the Court addressed the crucial role of an independent prosecutor in the criminal process. The Court stated that "[t]he dignity and the might of the State are brought to bear in decisions to prosecute. These decisions must not be made by interested parties." Citing Ex parte Littlefield, 343 S.C. 212, 218, S.E. 2d 81, 84 (2000), the In re Richland Court stated that "[i]n carrying out his duties, the prosecutor independently decides whether to prosecute, decides what evidence to submit to the court, and negotiates the State's position in plea bargaining."

We would strongly urge that magistrates and municipal judges be mindful of these issues when handling the business of your courts, regardless of whether the prosecutor is an attorney or an arresting law enforcement officer prosecuting on behalf of the State.

Finally, we would ask that chief magistrates/associate chief magistrates and chief municipal judges ensure that a copy of this memorandum is provided to your County and City administrators, and to any others within your entity's government that would benefit from the information. Provided below are links to the Ethics Advisory Committee opinion and the SC Supreme Court opinion In re Richland County Magistrate's Court.

Should you have questions concerning this matter, please do not hesitate to contact this office.