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2013-01-28-01

The Supreme Court of South Carolina

Re: Amendments to the South Carolina Appellate Court Rules.

Appellate Case No. 2011-190326


ORDER


The Commission on Lawyer Conduct and the Commission on Judicial Conduct have proposed a number of amendments to the Rules for Lawyer Disciplinary Enforcement and the Rules for Judicial Disciplinary Enforcement, which are found in Rules 413 and 502, SCACR.  The purpose of the amendments is to provide better guidance in proceedings involving incapacity or where a lawyer or judge may be unable to participate in a disciplinary investigation or to assist in his or her own defense in formal proceedings due to a physical or mental condition. 

Rules 413 and 502, SCACR, are hereby amended as set forth in the attachment to this order.  Additionally, Rule 608, SCACR, is amended to provide appointment credit for a lawyer who is appointed to represent a lawyer or judge in Rule 28, RLDE and RJDE proceedings involving incapacity or the inability to participate in a disciplinary investigation or defend in formal proceedings.  The amendments are effective immediately.    

s/Jean H. Toal                                  C.J.

s/Costa M. Pleicones                          J.

s/Donald W. Beatty                             J.

s/John W. Kittredge                             J.

s/Kaye G. Hearn                                  J.

Columbia, South Carolina
January 28, 2013


 

Amendments to Rule 413, SCACR

Rule 17 is amended to read:

RULE 17
INTERIM SUSPENSION

(a) Criminal Prosecution or Conviction for a Serious Crime. Without the necessity of Commission action, the Supreme Court may place a lawyer on interim suspension upon notice of the filing of an indictment, information, or complaint charging the lawyer with a serious crime, and shall immediately place a lawyer on interim suspension on receipt of a certified copy of a judgment of conviction or other competent evidence showing that the lawyer has been convicted of a serious crime.  The fact that sentencing may be delayed or an appeal may be taken shall not prevent the Supreme Court from imposing an interim suspension.

(b) Other Misconduct. Upon receipt of sufficient evidence demonstrating that a lawyer poses a substantial threat of serious harm to the public or to the administration of justice, the Supreme Court may place the lawyer on interim suspension pending a final determination in any proceeding under these rules.

(c) Failure to Respond to Notice of Investigation, Subpoena, or Notice of Appearance. Upon receipt of sufficient evidence demonstrating that a lawyer has failed to fully respond to a notice of investigation, has failed to fully comply with a proper subpoena issued in connection with an investigation or formal charges, has failed to appear at and fully respond to inquiries at an appearance required pursuant to Rule 19(c)(3), or has failed to respond to inquiries or directives of the Commission or the Supreme Court, the Supreme Court may place that lawyer on interim suspension.

(d) Motion for Reconsideration. A lawyer placed on interim suspension may apply to the Supreme Court for reconsideration of the order.   A copy of the motion shall be filed with the Commission and served on the disciplinary counsel.

(e) Order to be Public. The order of interim suspension shall be public.  

Rule 28 is amended to read:

RULE 28
CASES INVOLVING ALLEGATIONS OF MENTAL OR
PHYSICAL INCAPACITY AND/OR THE INABILITY TO PARTICIPATE IN A DISCIPLINARY INVESTIGATION OR ASSIST IN THE DEFENSE OF FORMAL PROCEEDINGS

(a) Initiation of an Incapacity Proceeding or a Proceeding Involving the Inability to Participate in a Disciplinary Investigation or to Assist in the Defense of Formal Disciplinary Proceedings. An incapacity proceeding or a proceeding to determine whether a lawyer is unable to participate in a disciplinary investigation or assist in the defense of formal proceedings may be initiated:

(1) if a lawyer alleges an inability to participate in the disciplinary investigation or to assist in the defense of formal proceedings due to a mental or physical condition;

(2) if information comes to disciplinary counsel's attention by complaint or from another source that the lawyer suffers from an incapacity or is incapable of participating in the disciplinary investigation or of assisting in the defense of formal proceedings due to a mental or physical condition; or

(3) by an order of an investigative panel, a hearing panel, or the Supreme Court.

(b) Proceedings to Determine Incapacity and/or the Inability to Participate in a Disciplinary Investigation or to Assist in the Defense of Formal Proceedings Generally. All proceedings under this rule shall be conducted in accordance with the procedures for disciplinary proceedings, except:

(1) Incapacity Proceedings. The purpose of incapacity proceedings shall be to determine whether the lawyer suffers from a physical or mental condition that adversely affects the lawyer's ability to practice law.

(2) Proceedings Involving the Inability to Participate in a Disciplinary Investigation or Assist in the Defense of Formal Proceedings. The purpose of such proceedings shall be to determine whether the lawyer suffers from a physical or mental condition that renders the lawyer unable to participate in a disciplinary investigation or assist in the defense of formal proceedings. 

(A) The Commission shall notify the Supreme Court of the initiation of the proceedings.  The Supreme Court shall immediately transfer the lawyer to incapacity inactive status pending a determination by the Supreme Court of whether the lawyer is capable of participating in the disciplinary investigation or of assisting in the defense of formal proceedings pursuant to this rule. 

(B) Any pending formal proceedings based on misconduct by the lawyer shall be temporarily stayed pending a determination of whether the lawyer is capable of participating in the disciplinary investigation or of assisting in the defense of formal proceedings under this rule.  However, any investigation of the disciplinary complaint may continue.

(3) Initiation of Proceedings. Upon initiation of proceedings under this rule, the Commission chair, vice chair, or chair's designee shall be assigned as the hearing officer for all matters related to the proceedings, including making appointments and conducting a hearing pursuant to this rule.

(A) The hearing officer, if he or she deems appropriate, may appoint counsel for the lawyer, if the lawyer is without representation, or appoint a guardian ad litem for the lawyer.

(B) The hearing officer shall designate one or more qualified medical, psychiatric, or psychological experts to examine the lawyer prior to the hearing on the matter.  The hearing officer may designate an expert agreed upon by disciplinary counsel and the lawyer. 

(C) The lawyer shall submit to an examination by the expert(s) within 30 days of receipt of notice of designation of the expert(s).  The lawyer shall cooperate with the expert(s) with regard to scheduling and participating in the examination.  If the lawyer fails to attend or participate in the examination, the hearing officer shall issue an order terminating proceedings under this rule and, if disciplinary proceedings were interrupted by a claim that the lawyer was unable to participate in a disciplinary investigation or assist in the defense of formal proceedings, the interrupted disciplinary proceedings shall resume. 

(D) The expert or experts shall report the results of the examination(s) to the hearing officer and the parties.

(4) Stipulations.

(A) Within 20 days of receipt of the examination report(s) of the expert or experts designated by the hearing officer, disciplinary counsel and the lawyer may agree upon proposed findings of fact, conclusions, and recommended disposition.  The stipulation shall be submitted, without the necessity of a hearing, to the hearing officer for a recommendation to the Supreme Court for approval or rejection.  The final decision on the recommendation shall be made by the Supreme Court.

(B) If the Supreme Court accepts a stipulation, it shall enter an order in accordance with its terms.  If the stipulation is rejected by the Supreme Court, it shall be withdrawn and cannot be used against the lawyer in any proceedings.  If the Supreme Court rejects the stipulation, the Supreme Court shall order that the hearing proceed.

(5) Hearing. Unless a stipulation is submitted by the parties, the hearing officer shall schedule a hearing and notify disciplinary counsel and the lawyer of the date, time, and place of the hearing.  Within 30 days of the filing of the transcript of the hearing, the hearing officer shall file with the Supreme Court the record of the proceeding and a report setting forth findings of fact, a conclusion regarding incapacity and/or the ability of the lawyer to participate in a disciplinary investigation or assist in the defense of formal proceedings, and a recommended disposition of the proceedings.

(6) Review by the Supreme Court. 

(A) If the Supreme Court determines that the lawyer suffers from a physical or mental condition that adversely affects the lawyer's ability to practice law, it may enter any order appropriate to the circumstances, the nature of the incapacity, and probable length of the period of incapacity, including:

(i) transferring the lawyer to incapacity inactive status; or

(ii) placing restrictions or conditions on the lawyer, to include limiting the lawyer's practice of law or requiring the lawyer to undergo appropriate treatment;

(B) If the Supreme Court determines the lawyer does not suffer from a physical or mental condition that adversely affects the lawyer's ability to practice law, the Court shall vacate any order transferring the lawyer to incapacity inactive status and enter any other order as appropriate to the circumstances.                

(C) If the Supreme Court determines that the lawyer is incapable of participating in the disciplinary investigation or assisting in the defense of formal proceedings due to a physical or mental condition, any formal disciplinary proceedings based on misconduct shall be deferred.  Any investigation of the disciplinary complaint may continue.  The lawyer shall remain on incapacity inactive status until the Supreme Court grants a petition for reinstatement to active status as a lawyer.  If the Supreme Court determines that a petition for reinstatement to active status should be granted, the interrupted disciplinary proceedings shall resume.

(D) If the Supreme Court determines that the lawyer is capable of participating in a disciplinary investigation or assisting in the defense of formal proceedings, the interrupted disciplinary proceedings based on misconduct shall resume.  The lawyer shall, however, be retained on incapacity inactive status pending completion of the disciplinary proceedings.

(7) Costs. In its discretion, the Supreme Court may direct that the costs incurred by the Commission and the Office of Disciplinary Counsel related to proceedings under this rule be paid by the lawyer.

(8) Waiver of Privilege. The raising of a mental or physical condition as a defense to, or in mitigation of, formal charges or the raising of a claim of inability to participate in a disciplinary investigation or assist in the defense of formal proceedings by the lawyer constitutes a waiver of any medical privilege.

(9) Confidentiality. All of the proceedings, information, and documents related to the proceedings shall be confidential except that an order transferring a lawyer to incapacity inactive status or reinstating a lawyer to active status following transfer to incapacity inactive status shall be public.  Such an order shall not, however, disclose the nature of the lawyer's condition.  All other orders issued in the proceeding shall be confidential.

(c) Involuntary Commitment or Adjudication of Incompetency. If a lawyer has been judicially declared incompetent or is involuntarily committed on the grounds of incompetency or incapacity by a final judicial order after a judicial hearing, the Supreme Court, upon receipt of a certified copy of the order, shall enter an order immediately transferring the lawyer to incapacity inactive status.  A copy of the order shall be served, in the manner the Supreme Court shall direct, upon the lawyer, the lawyer's guardian, or the director of the institution to which the lawyer has been committed.  Unless the Supreme Court determines that it is appropriate to do so, an order transferring a lawyer to incapacity inactive status shall not disclose the nature of the incapacity.

(d) Other Incapacity. Upon receipt of sufficient evidence demonstrating that a lawyer poses a substantial threat of serious harm to the public or to the administration of justice, the Supreme Court may transfer the lawyer to incapacity inactive status pending a final determination in any proceeding under these rules.  Unless the Supreme Court determines that it is appropriate to do so, an order transferring a lawyer to incapacity inactive status shall not disclose the nature of the incapacity.

(e) Motion for Reconsideration. A lawyer transferred to incapacity inactive status pursuant to Rule 28(d) may apply to the Supreme Court for reconsideration of the order.  A copy of the motion shall be filed with the Commission and served on the disciplinary counsel.

(f) Agreement. Nothing within this rule shall prohibit disciplinary counsel and a lawyer from agreeing that the lawyer suffers from an incapacity or is unable to participate in a disciplinary investigation or to assist in the defense of formal proceedings due to a mental or physical condition.  If disciplinary counsel and a lawyer so agree, the lawyer and disciplinary counsel may waive the proceedings under this rule by submitting to the Supreme Court a consent to transfer the lawyer to incapacity inactive status.  If the lawyer is placed on incapacity inactive status because the lawyer is incapable of participating in a disciplinary investigation or assisting in the defense of formal proceedings, formal proceedings will be deferred in accordance with Rule 28(b)(6)(C).

(g) Reinstatement From Incapacity Inactive Status.

(1) Generally. No lawyer transferred to incapacity inactive status may resume active status except by order of the Supreme Court.

(2) Petition. Any lawyer transferred to incapacity inactive status shall be entitled to petition for transfer to active status once a year or at whatever shorter intervals the Supreme Court may direct in the order transferring the lawyer to incapacity inactive status or any modifications thereof.  The lawyer shall serve a copy of the petition on disciplinary counsel, and shall file 10 copies of the petition with the Clerk of the Supreme Court. The copies filed with the Clerk shall be accompanied by proof of service showing service on disciplinary counsel.

(3) Examination. Upon the filing of a petition for transfer to active status, the Supreme Court may take or direct whatever action it deems necessary or proper to determine whether the incapacity has been removed, including a direction for an examination of the lawyer by qualified medical or psychological experts designated by the Supreme Court.  In its discretion, the Supreme Court may direct that the expense of the examination be paid by the lawyer.

(4) Required Disclosure. With the filing of a petition for reinstatement to active status, the lawyer shall be required to disclose the name of each psychiatrist, psychologist, physician and hospital or other institution by whom or in which the lawyer has been examined or treated since the transfer to incapacity inactive status.  The lawyer shall furnish to the Supreme Court written consent to the release of information and records relating to the incapacity if requested by the Supreme Court or court-appointed medical or psychological experts.

(5) Learning in the Law; Examinations and Training. The Supreme Court may also direct that the lawyer establish proof of competency and learning in the law, which may include a requirement to successfully complete the examinations and training required by Rule 402(c)(5), (6), and (8), SCACR.

(6) Granting of Petition for Transfer to Active Status. The Supreme Court shall grant the petition for transfer to active status upon a showing by clear and convincing evidence that the incapacity has been removed.

(7) Judicial Declaration of Competency. If a lawyer transferred to incapacity inactive status on the basis of a judicial determination of incompetence has been declared to be competent, the Supreme Court may dispense with further evidence that the incapacity to practice law has been removed and may immediately direct reinstatement to active status.

Rule 2(m) is amended to read:

(m) Incapacity Inactive Status: non-disciplinary suspension of a lawyer from the practice of law based on incapacity or because the lawyer is unable to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition.

Rule 4(e)(1)(A) is amended to read:

(A) adopt its own rules of procedure for discipline proceedings, incapacity proceedings, and proceedings to determine whether a lawyer is unable to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition subject to the approval of the Supreme Court; and

Rule 9 is amended to read:

Except as otherwise provided in these rules, the South Carolina Rules of Evidence applicable to non-jury civil proceedings and the South Carolina Rules of Civil Procedure apply in lawyer discipline, incapacity cases, and proceedings to determine whether a lawyer is unable to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition when formal charges have been filed.  The right to discovery, however, shall be limited to that provided by Rule 25.

Rule 10 is amended to read:

The lawyer shall be entitled to retain counsel and to have the assistance of counsel at every stage of these proceedings.  The Commission may appoint counsel to represent the lawyer in incapacity proceedings and proceedings to determine whether a lawyer is unable to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition.  See Rule 28(b)(3)(A).  After appearing as counsel for a lawyer in a matter under these rules, counsel for the lawyer may only withdraw upon leave of the chair, vice chair, or a panel of the Commission after 10 days notice to disciplinary counsel and the lawyer or, prior to formal charges having been filed, upon stipulation of the lawyer, the withdrawing counsel and disciplinary counsel.  Provided, after a matter has been forwarded to the Supreme Court for action, counsel can only withdraw from representation upon leave of the Supreme Court after due notice to the client and disciplinary counsel.

Rule 12(b) is amended to read:

(b) When Misconduct Proceedings Become Public. When formal charges are filed regarding allegations of misconduct, the formal charges and any answer shall become public 30 days after the filing of the answer or, if no answer is filed, 30 days after the expiration of the time to answer under Rule 23.  Thereafter, except as otherwise provided by these rules or the Supreme Court, all subsequent records and proceedings relating to the misconduct allegations shall be open to the public inclusive of a letter of caution or admonition issued after the filing of formal charges.  If allegations of incapacity or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition are raised during the misconduct proceedings, all records, information, and proceedings relating to these allegations shall be held confidential.

Rule 13 is amended to read:

Communications to the Commission, Commission counsel, disciplinary counsel, or their staffs relating to misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition and testimony given in the proceedings shall be absolutely privileged, and no civil lawsuit predicated thereon may be instituted against any complainant or witness.  Members of the Commission, Commission counsel and staff, disciplinary counsel and staff, any attorney appointed to protect clients under Rule 31, and any supervising or monitoring attorney appointed under Rule 33 shall be absolutely immune from civil suit for all conduct in the course of their official duties.

Rule 14(c) is amended to read:

(c) Service. Service upon the lawyer of formal charges in any disciplinary or incapacity proceedings shall be made by personal service upon the lawyer or the lawyer's counsel by any person authorized by the chair of the Commission, or by registered or certified mail, return receipt requested, to the lawyer's last known address.  If service cannot be so made, service shall be deemed complete when deposited in the U.S. Mail, provided the formal charges were sent by registered or certified mail, return receipt requested, to the primary address the lawyer provided in the Attorney Information System under Rule 410, SCACR, and to the lawyer's last known address, if those addresses differ.  Service of all other documents shall be made in the manner provided by Rule 262(b), SCACR.

Rule 19(a) is amended to read:

(a) Screening. Disciplinary counsel shall evaluate all information coming to disciplinary counsel's attention by complaint or from other sources that alleges lawyer misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition.  If the information would not constitute misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings if it were true, disciplinary counsel shall dismiss the complaint or, if appropriate, refer the matter to another agency.  If the information raises allegations that would constitute lawyer misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings if true, disciplinary counsel shall conduct an investigation.

Rule 23(b) is amended to read:

(b) Waiver of Privilege. The raising of a mental or physical condition as a defense constitutes a waiver of any medical privilege pursuant to Rule 28(b)(8).

Rule 27(e)(1) is amended to read:

(1) The Supreme Court shall file a written decision dismissing the case, containing a letter of caution, imposing a sanction(s), or transferring the lawyer to incapacity inactive status.  Any order relating to incapacity shall comply with Rule 28(b)(9).  Unless otherwise ordered by the Supreme Court, the decision shall be effective upon filing.


Amendments to Rule 502, SCACR

Rule 17 is amended to read:

RULE 17. INTERIM SUSPENSION

(a) Criminal Prosecution or Conviction for a Serious Crime. Without the necessity of Commission action, the Supreme Court may place a judge on interim suspension upon notice of the filing of an indictment, information, or complaint charging the judge with a serious crime, and shall immediately place a judge on interim suspension on receipt of a certified copy of a judgment of conviction or other competent evidence showing that the judge has been convicted of a serious crime.  The fact that sentencing may be delayed or an appeal may be taken shall not prevent the Supreme Court from imposing an interim suspension.

(b) Other Misconduct. Upon receipt of sufficient evidence demonstrating that a judge poses a substantial threat of serious harm to the public or to the administration of justice, the Supreme Court may place the judge on interim suspension pending a final determination in any proceeding under these rules.

(c) Failure to Respond to Notice of Investigation, Subpoena, or Notice of Appearance. Upon receipt of sufficient evidence demonstrating that a judge has failed to fully respond to a notice of investigation, has failed to fully comply with a proper subpoena issued in connection with an investigation or formal charges, has failed to appear at and fully respond to inquiries at an appearance required pursuant to Rule 19(c)(3), or has failed to respond to inquiries or directives of the Commission or the Supreme Court, the Supreme Court may place that judge on interim suspension.

(d) Motion for Reconsideration. A judge placed on interim suspension may apply to the Supreme Court for reconsideration of the order.  A copy of the motion shall be filed with the Commission and served on disciplinary counsel.

(e) Order to be Public. The order of interim suspension shall be public. 

Rule 28 is amended to read:

RULE 28. CASES INVOLVING ALLEGATIONS OF MENTAL OR PHYSICAL INCAPACITY AND/OR THE INABILITY TO PARTICIPATE IN A DISCIPLINARY INVESTIGATION OR ASSIST IN THE DEFENSE OF FORMAL PROCEEDINGS

(a) Initiation of an Incapacity Proceeding or a Proceeding Involving the Inability to Participate in a Disciplinary Investigation or to Assist in the Defense of Formal Disciplinary Proceedings. An incapacity proceeding or a proceeding to determine whether a judge is unable to participate in a disciplinary investigation or assist in the defense of formal proceedings may be initiated:

(1) if a judge alleges an inability to participate in the disciplinary investigation or to assist in the defense of formal proceedings due to a mental or physical condition;

(2) if information comes to disciplinary counsel's attention by complaint or from another source that the judge suffers from an incapacity or is incapable of participating in the disciplinary investigation or of assisting in the defense of formal proceedings due to a mental or physical condition; or

(3) by an order of an investigative panel, a hearing panel, or the Supreme Court.

(b) Proceedings to Determine Incapacity and/or the Inability to Participate in a Disciplinary Investigation or to Assist in the Defense of Formal Proceedings Generally. All proceedings under this rule shall be conducted in accordance with the procedures for disciplinary proceedings, except:

(1) Incapacity Proceedings. The purpose of incapacity proceedings shall be to determine whether the judge suffers from a physical or mental condition that adversely affects the judge's ability to perform judicial functions.

(2) Proceedings Involving the Inability to Participate in a Disciplinary Investigation or Assist in the Defense of Formal Proceedings. The purpose of such proceedings shall be to determine whether the judge suffers from a physical or mental condition that renders the judge unable to participate in a disciplinary investigation or assist in the defense of formal proceedings. 

(A) The Commission shall notify the Supreme Court of the initiation of the proceedings.  The Supreme Court shall immediately transfer the judge to incapacity inactive status pending a determination by the Supreme Court of whether the judge is capable of participating in the disciplinary investigation or of assisting in the defense of formal proceedings pursuant to this rule. 

(B) Any pending formal proceedings based on misconduct by the judge shall be temporarily stayed pending a determination of whether the judge is capable of participating in the disciplinary investigation or of assisting in the defense of formal proceedings under this rule.  However, any investigation of the disciplinary complaint may continue.

(3) Initiation of Proceedings. Upon initiation of proceedings under this rule, the Commission chair, vice chair, or chair's designee shall be assigned as the hearing officer for all matters related to the proceedings, including making appointments and conducting a hearing pursuant to this rule.

(A) The hearing officer, if he or she deems appropriate, may appoint counsel for the judge, if the judge is without representation, or appoint a guardian ad litem for the judge.

(B) The hearing officer shall designate one or more qualified medical, psychiatric, or psychological experts to examine the judge prior to the hearing on the matter.  The hearing officer may designate an expert agreed upon by disciplinary counsel and the judge. 

(C) The judge shall submit to an examination by the expert(s) within 30 days of receipt of notice of designation of the expert(s).  The judge shall cooperate with the expert(s) with regard to scheduling and participating in the examination.  If the judge fails to attend or participate in the examination, the hearing officer shall issue an order terminating proceedings under this rule and, if disciplinary proceedings were interrupted by a claim that the judge was unable to participate in a disciplinary investigation or assist in the defense of formal proceedings, the interrupted disciplinary proceedings shall resume. 

(D) The expert or experts shall report the results of the examination(s) to the hearing officer and the parties.

(4) Stipulations.

(A) Within 20 days of receipt of the examination report(s) of the expert or experts designated by the hearing officer, disciplinary counsel and the judge may agree upon proposed findings of fact, conclusions, and recommended disposition.  The stipulation shall be submitted, without the necessity of a hearing, to the hearing officer for a recommendation to the Supreme Court for approval or rejection.  The final decision on the recommendation shall be made by the Supreme Court.

(B) If the Supreme Court accepts a stipulation, it shall enter an order in accordance with its terms.  If the stipulation is rejected by the Supreme Court, it shall be withdrawn and cannot be used against the judge in any proceedings.  If the Supreme Court rejects the stipulation, the Supreme Court shall order that the hearing proceed.

(5) Hearing. Unless a stipulation is submitted by the parties, the hearing officer shall schedule a hearing and notify disciplinary counsel and the judge of the date, time, and place of the hearing.  Within 30 days of the filing of the transcript of the hearing, the hearing officer shall file with the Supreme Court the record of the proceeding and a report setting forth findings of fact, a conclusion regarding incapacity and/or the ability of the judge to participate in a disciplinary investigation or assist in the defense of formal proceedings, and a recommended disposition of the proceedings.

(6) Review by the Supreme Court. 

(A) If the Supreme Court determines that the judge suffers from a physical or mental condition that adversely affects the judge's ability to perform judicial functions, it may enter any order appropriate to the circumstances, the nature of the incapacity, and probable length of the period of incapacity, including:

(i) retiring or removing the judge from office if the incapacity seriously interferes with the judge's performance of judicial duties and the incapacity is, or is likely to become, of a permanent character;

(ii) transferring the judge to judicial incapacity inactive status;   

(iii) placing restrictions or conditions on the judge, to include limiting the judge's performance of judicial functions or requiring the judge to undergo appropriate treatment;

(iv) transferring the judge to the lawyer incapacity status if the judge is a lawyer and the Supreme Court determines the judge is incapacitated to practice law.

(B) If the Supreme Court determines the judge does not suffer from a physical or mental condition that adversely affects the judge's ability to perform judicial functions, the Court shall vacate any order transferring the judge to incapacity inactive status and enter any other order as appropriate to the circumstances.            

(C) If the Supreme Court determines that the judge is incapable of participating in the disciplinary investigation or assisting in the defense of formal proceedings due to a physical or mental condition, any formal disciplinary proceedings based on misconduct shall be deferred.  Any investigation of the disciplinary complaint may continue.  The judge shall remain on incapacity inactive status until the Supreme Court grants a petition for reinstatement to active status as a judge.  If the Supreme Court determines that a petition for reinstatement to active status should be granted, the interrupted disciplinary proceedings shall resume.

(D) If the Supreme Court determines that the judge is capable of participating in a disciplinary investigation or assisting in the defense of formal proceedings, the interrupted disciplinary proceedings based on misconduct shall resume.  The judge shall, however, be retained on incapacity inactive status pending completion of the disciplinary proceedings.

(7) Costs. In its discretion, the Supreme Court may direct that the costs incurred by the Commission and the Office of Disciplinary Counsel related to proceedings under this rule be paid by the judge.

(8) Waiver of Privilege. The raising of a mental or physical condition as a defense to, or in mitigation of, formal charges or the raising of a claim of inability to participate in a disciplinary investigation or assist in the defense of formal proceedings by the judge constitutes a waiver of any medical privilege.

(9) Confidentiality. All of the proceedings, information, and documents related to the proceedings shall be confidential except that an order transferring a judge to incapacity inactive status or reinstating a judge to active status following transfer to incapacity inactive status shall be public.  Such an order shall not, however, disclose the nature of the judge's condition.  All other orders issued in the proceeding shall be confidential.

(c) Involuntary Commitment or Adjudication of Incompetency. If a judge has been judicially declared incompetent or is involuntarily committed on the grounds of incompetency or incapacity by a final judicial order after a judicial hearing, the Supreme Court, upon receipt of a certified copy of the order, shall enter an order immediately transferring the judge to incapacity inactive status.  If the judge is a lawyer, the order shall also transfer the judge to the lawyer incapacity inactive status.  A copy of the order shall be served, in the manner the Supreme Court shall direct, upon the judge, the judge's guardian, or the director of the institution to which the judge has been committed.  Unless the Supreme Court determines that it is appropriate to do so, an order transferring a judge to incapacity inactive status shall not disclose the nature of the incapacity.

(d) Other Incapacity. Upon receipt of sufficient evidence demonstrating that a judge poses a substantial threat of serious harm to the public or to the administration of justice, the Supreme Court may transfer the judge to incapacity inactive status pending a final determination in any proceeding under these rules.  Unless the Supreme Court determines that it is appropriate to do so, an order transferring a judge to incapacity inactive status shall not disclose the nature of the incapacity.

(e) Motion for Reconsideration. A judge transferred to incapacity inactive status pursuant to Rule 28(d) may apply to the Supreme Court for reconsideration of the order.  A copy of the motion shall be filed with the Commission and served on the disciplinary counsel.

(f) Agreement. Nothing within this rule shall prohibit disciplinary counsel and a judge from agreeing that the judge suffers from an incapacity or is unable to participate in a disciplinary investigation or to assist in the defense of formal proceedings due to a mental or physical condition.  If disciplinary counsel and a judge so agree, the judge and disciplinary counsel may waive the proceedings under this rule by submitting to the Supreme Court a consent to transfer the judge to incapacity inactive status.  If the judge is placed on incapacity inactive status because the judge is incapable of participating in a disciplinary investigation or assisting in the defense of formal proceedings, formal proceedings will be deferred in accordance with Rule 28(b)(6)(C).

(g) Reinstatement From Incapacity Inactive Status.

(1) Generally. No judge transferred to incapacity inactive status may resume active status except by order of the Supreme Court.

(2) Petition. Any judge transferred to incapacity inactive status shall be entitled to petition for transfer to active status once a year or at whatever shorter intervals the Supreme Court may direct in the order transferring the judge to incapacity inactive status or any modifications thereof.  The judge shall serve a copy of the petition on disciplinary counsel, and shall file 10 copies of the petition with the Clerk of the Supreme Court. The copies filed with the Clerk shall be accompanied by proof of service showing service on disciplinary counsel.

(3) Examination. Upon the filing of a petition for transfer to active status, the Supreme Court may take or direct whatever action it deems necessary or proper to determine whether the incapacity has been removed, including a direction for an examination of the judge by qualified medical or psychological experts designated by the Supreme Court.  In its discretion, the Supreme Court may direct that the expense of the examination be paid by the judge.

(4) Required Disclosure. With the filing of a petition for reinstatement to active status, the judge shall be required to disclose the name of each psychiatrist, psychologist, physician and hospital or other institution by whom or in which the judge has been examined or treated since the transfer to incapacity inactive status.  The judge shall furnish to the Supreme Court written consent to the release of information and records relating to the incapacity if requested by the Supreme Court or court-appointed medical or psychological experts.

(5) Granting of Petition for Transfer to Active Status. The Supreme Court shall grant the petition for transfer to active status upon a showing by clear and convincing evidence that the incapacity has been removed.

(6) Judicial Declaration of Competency. If a judge transferred to incapacity inactive status on the basis of a judicial determination of incompetence has been declared to be competent, the Supreme Court may dispense with further evidence that the incapacity has been removed and may immediately direct reinstatement to active status.

Rule 2(m) is amended to read:

(m) Incapacity Inactive Status: non-disciplinary suspension of a judge from office based on incapacity or because the judge is unable to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition.

Rule 4(e)(1)(A) is amended to read:

(A) adopt its own rules of procedure for discipline proceedings, incapacity proceedings, and proceedings to determine whether a judge is unable to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition subject to the approval of the Supreme Court; and

Rule 7(b) is amended to read:

(b) Sanctions.  Misconduct shall be grounds for one or more of the following sanctions:

(1) removal from Office by the Supreme Court.  The removal shall operate as a permanent injunction prohibiting the judge from holding any judicial office within the unified judicial system in South Carolina.  On petition, the Supreme Court may dissolve this permanent injunction;

(2) suspension by the Supreme Court.  The Supreme Court may also make a recommendation to the appropriate authority that the judge not be reappointed to the office at the end of the judge's term;

(3) public reprimand;

(4) admonition, provided that an admonition may be used in subsequent proceedings as evidence of prior misconduct solely upon the issue of sanction to be imposed;

(5) assessment of the costs of the proceeding, including the cost of hearings, investigations, service of process and court reporter services;

(6) limitations on the nature and extent of the judge's performance of judicial duties; or

(7) any other sanction or requirement as the Supreme Court may determine is appropriate.

Rule 9 is amended to read:

Except as otherwise provided in these rules, the South Carolina Rules of Evidence applicable to non-jury civil proceedings and the South Carolina Rules of Civil Procedure apply in judicial discipline, incapacity cases, and proceedings to determine whether a judge is unable to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition when formal charges have been filed.  The right to discovery, however, shall be limited to that provided by Rule 25.

Rule 10 is amended to read:

The judge shall be entitled to retain counsel and to have the assistance of counsel at every stage of these proceedings.  The Commission may appoint counsel to represent the judge in incapacity proceedings and proceedings to determine whether a judge is unable to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition.  See Rule 28(b)(3)(A).  After appearing as counsel for a judge in a matter under these rules, counsel for the judge may only withdraw upon leave of the chair, vice chair, or a panel of the Commission after 10 days notice to disciplinary counsel and the judge or, prior to formal charges having been filed, upon stipulation of the judge, the withdrawing counsel and disciplinary counsel.  Provided, after a matter has been forwarded to the Supreme Court for action, counsel can only withdraw from representation upon leave of the Supreme Court after due notice to the client and disciplinary counsel.

Rule 12(b) is amended to read:

(b) When Misconduct Proceedings Become Public. When formal charges are filed regarding allegations of misconduct, the formal charges and any answer shall become public 30 days after the filing of the answer or, if no answer is filed, 30 days after the expiration of the time to answer under Rule 23.  Thereafter, except as otherwise provided by these rules or the Supreme Court, all subsequent records and proceedings relating to the misconduct allegations shall be open to the public inclusive of a letter of caution or admonition issued after the filing of formal charges.  If allegations of incapacity or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition are raised during the misconduct proceedings, all records, information, and proceedings relating to these allegations shall be held confidential.

Rule 13 is amended to read:

Communications to the Commission, Commission counsel, disciplinary counsel, or their staffs relating to misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition and testimony given in the proceedings shall be absolutely privileged, and no civil lawsuit predicated thereon may be instituted against any complainant or witness.  Members of the Commission, Commission counsel and staff, and disciplinary counsel and staff shall be absolutely immune from civil suit for all conduct in the course of their official duties.

Rule 14(c) is amended to read:

(c) Service. Service upon the judge of formal charges in any disciplinary or incapacity proceedings shall be made by personal service upon the judge or the judge's counsel by any person authorized by the chair of the Commission, or by registered or certified mail, return receipt requested, to the judge's last known address.  If service cannot be so made, service shall be deemed complete when deposited in the U.S. Mail, provided the formal charges were sent by registered or certified mail, return receipt requested, to the primary address the judge provided in the Attorney Information System under Rule 410, SCACR, and to the judge's last known address, if those addresses differ, or, if the judge is not a member of the South Carolina Bar, to the judge's last known address.  Service of all other documents shall be made in the manner provided by Rule 262(b), SCACR.

Rule 19(a) is amended to read:

(a) Screening. Disciplinary counsel shall evaluate all information coming to disciplinary counsel's attention by complaint or from other sources that alleges judicial misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition.  If the information would not constitute misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings if it were true, disciplinary counsel shall dismiss the complaint or, if appropriate, refer the matter to another agency.  If the information raises allegations that would constitute lawyer misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings if true, disciplinary counsel shall conduct an investigation.

Rule 23(b) is amended to read:

(b) Waiver of Privilege. The raising of a mental or physical condition as a defense constitutes a waiver of any medical privilege pursuant to Rule 28(b)(8).

Rule 27(e)(1) is amended to read:

(1) The Supreme Court shall file a written decision dismissing the case, containing a letter of caution, imposing a sanction(s), or transferring the judge to incapacity inactive status.  Any order relating to incapacity shall comply with Rule 28(b)(9).  Unless otherwise ordered by the Supreme Court, the decision shall be effective upon filing.


Rule 608(f)(4)(C), SCACR is amended to read:

(C) A member who receives an appointment as an attorney to protect under Rule 31, RLDE, contained in Rule 413, SCACR; or receives an assignment to investigate a matter as an attorney to assist disciplinary counsel under Rule 5(c), RLDE; or receives an appointment as counsel under Rule 28(b), RLDE, or Rule 28(b), RJDE, shall receive credit for the appointment under this rule.  The Office of Disciplinary Counsel shall notify the appropriate clerk of court of the appointment, and the clerk shall mark the list to reflect the appointment.  If the member is relieved of this appointment before it is substantially completed, the Supreme Court or the Office of Disciplinary Counsel shall notify the clerk so that the credit may be withdrawn.