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2003-08-05-01 The Supreme Court of South Carolina

The Supreme Court of South Carolina

RE: Amendments to Rule 413, SCACR, Rules for Attorney Disciplinary Enforcement and Rule 502, SCACR, Rules for Judicial Disciplinary Enforcement.


ORDER


Pursuant to Art.V, § 4, of the South Carolina Constitution the attached amendments are adopted effective September 1, 2003.

IT IS SO ORDERED.

s/Jean H. Toal                                    C.J.

s/James E. Moore                             J.

s/John H. Waller, Jr.                           J.

s/E.C. Burnett, III                                 J.

s/Costa M. Pleicones                        J.

Columbia, South Carolina
August 5, 2003


Amendments to Rule 413, RLDE, SCACR

(1) Rule 2 is amended by relettering sections (b) through (aa) to (c) through (bb) and adding a new section (b) to read as follows:

(b) Closed, But Not Dismissed: a manner of disposing of a matter where a panel of the Commission makes a finding that the matter should not be dismissed, but it is either impossible or impractical to proceed with the matter because it appears that the lawyer is deceased, disappeared, incarcerated, physically or mentally incapacitated, disbarred, or suspended from the practice of law, or for other good cause. If the lawyer files a written objection with the Commission and serves a copy of that objection on disciplinary counsel within 10 days of service of notice that the matter was closed, but not dismissed, the matter shall be deemed reopened and in the full investigation phase. Any objection need not contain any grounds for objecting. Before a matter can be reopened after being closed, but not dismissed, an investigative panel of the Commission must make a finding that there has been a change in the circumstances that were the basis for the matter to be closed, but not dismissed, or that there is other good cause for it to be reopened. Before a motion can be considered by an investigative panel of the Commission to reopen a matter that has been previously closed, but not dismissed, disciplinary counsel shall serve a copy of the motion to do so containing the grounds to reopen on the lawyer and then the lawyer shall have 10 days to respond thereto. Disciplinary counsel shall notify both the lawyer and the complainant when a matter is closed, but not dismissed and when a closed, but not dismissed matter is reopened. If the panel declines to reopen the matter, disciplinary counsel shall so advise the lawyer.

(2) The "and" at the end of Rule 4(f)(2) and the period after Rule 4(g)(3) are deleted; "and," is added after Rule 4(f)(3); and new subsection 4(f)(4) is added to read as follows:

(4) declare, after proper notice, a matter closed, but not dismissed, after the filing of formal charges.

(3) The "and" at the end of Rule 4(g)(3) and the period after Rule 4(g)(4) are deleted; "and," is added after Rule 4(f)(4); and new subsection 4(g)(5) is added to read as follows:

(5) declare, after proper notice, a matter closed, but not dismissed, after the filing of formal charges.

(4) Rule 5(b) is amended by deleting the "and" at the end of Rule 5(b)(6) renumbering Rule 5(b)(7) as Rule 5(b)(10) and adding the following subsections:

(7) initiate and prosecute proceedings before the Commission and the Supreme Court to enforce orders related to disciplinary proceedings or related to the practice of law by lawyers and to seek restraining orders and sanctions in connection with violations thereof;

(8) serve as opposing counsel in proceedings before the Committee on Character and Fitness in which a lawyer seeks reinstatement or readmission;

(9) provide advice and assistance to attorneys appointed to protect clients' interests; and,

(5) Rule 7 is amended by deleting the period after Rule 7(a)(8) and adding the following sections:

(9) willfully fail to comply with the terms of a finally accepted deferred disciplinary agreement or any terms of a finally accepted agreement for discipline by consent; and,

(10) willfully fail to comply with a final decision of the Resolution of Fee Disputes Board.

(6) Rule 9 is amended by adding "when formal charges have been filed" to the end of the first sentence of the Rule.

(7) Rule 10 is amended by adding the following two sentences to the present Rule:

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.

(8) Rule 11 is amended by adding the following before the last sentence of the Rule:

and the chair and vice chair may entertain requests for permissive disclosure pursuant to Rule 12(c) and requests for subpoenas for investigation pursuant to Rule 15(b)(1) made by disciplinary counsel without notice to the lawyer. Where disciplinary counsel makes a request to the chair or vice chair pursuant to either Rule 12(c) or 19(b)(1) without notice to the lawyer, the request shall so state and set forth the reason that notice is not being given.

(9) Rule 12(b) is amended by adding "or the Supreme Court" to the first clause of the second sentence of the rule and adding "inclusive of a letter of caution or admonition issued after the filing of formal charges" after the second clause of the Rule 12(b).

(10) Rule 12(c) is amended by replacing the period at the end of Rule 12(c)(3) with a semi-colon and adding the following two subsections:

(4) to persons from whom and entities from which it appears that a lawyer has misappropriated monies or other property when the chair or vice-chair or a panel of the Commission has determined that the disclosure of the information will tend to prevent further misappropriation or likely facilitate restitution, recovery, or compensation from the Lawyers' Fund for Client Protection, insurance coverage, title insurance, or other sources; or,

(5) to the appropriate disciplinary authority in any jurisdiction in which a lawyer is admitted to practice law or has applied for admission to practice law concerning a matter where there is evidence the lawyer committed misconduct under lawyer or judicial disciplinary rules of that jurisdiction or where a lawyer receives any sanction under Rule 7(b).

(11) Rule 12 is amended by adding the following subsection (g):

(g) Permissive disclosure by the parties. Either party may disclose in proceedings before a hearing panel statements and other evidence, gathered prior to the matter becoming public after the filing of formal charges, that were subject to discovery under Rule 25 to the extent admissible under South Carolina Rules of Civil Procedure or South Carolina Rules of Evidence.

(12) Rule 14((b)(2) is renumbered 14(b)(4) and the following sub-sections are added to the Rule:

(2) By Disciplinary Counsel. Disciplinary counsel may extend the time for responses due from a lawyer under Rules 19(b)(1), 19(c)(3), and 23(a) for one or more periods not to exceed 30 days in the aggregate for each.

(3) By the Parties. Disciplinary counsel and the lawyer may, by written agreement, extend the time to respond under 19(b)(1), 19(c), or 23(a) after the execution and delivery by both parties of an agreement for discipline by consent or deferred disciplinary agreement for the duration of the period the agreement is awaiting a final disposition and for a period of 30 days thereafter if the Agreement is not accepted.

(13) The first sentence of Rule 15(b)(1) is amended by deleting the word "and" before the word "documents" and adding the following after the word "documents": "(whether in typed, printed, written, digital, electronic, or other format), and other tangible evidence". Further the last sentence of present Rule 15(b)(1) is deleted.

(14) The first sentence of Rule 15(b)(2) is amended by deleting the word "and" before the word "documents" and adding the following after the word "documents": "(whether in typed, printed, written, digital, electronic, or other format), and other tangible evidence"; by adding "or direct disciplinary counsel to subpoena witnesses or documents and provide the subpoenaed information to the investigative to the investigative panel" to the end of the second sentence; and, by deleting the final sentence of present Rule 15(b)(2).

(15) Rule 15 is amended by adding the following section (f):

(f) Subpoena Pursuant to Law of Another Jurisdiction. Whenever a subpoena is sought in this State pursuant to the law or disciplinary rules of another jurisdiction for use in lawyer or judicial disciplinary or disability proceedings, and where the issuance of the subpoena has been duly approved under the applicable laws or rules of the other jurisdiction, the chair or vice-chair or a panel of the Commission upon a showing of good cause, may issue a subpoena to compel the attendance of witnesses and the production of documents in the county where the witness resides or is employed or elsewhere in this state as agreed by the witness. Service, enforcement, or challenges to such subpoenas shall be as provided in these rules.

(16) Sections (c) and (d) of Rule 17 are renumbered (d) and (e) and a new section (c) is added to read as follows:

(c) Failure to Respond to Notice of Full Investigation, Subpoena, or Notice of Appearance. Upon receipt of sufficient evidence demonstrating that a lawyer has failed to fully respond to a notice of full 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 Rules 19(c)(4) or (5), 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.

(17) Rule 19(b)(1) is amended by adding the following sentence at the end of the subsection: The lawyer shall file a written response with disciplinary counsel to a request within 15 days of notice to do so from disciplinary counsel.

(18) Rule 19(b)(3) is amended by adding the following after the second clause "issue a letter of caution without a finding of misconduct," and by adding the following after the word "caution" in the next clause "with a finding of minor misconduct".

(19) Rule 19(c) is amended by replacing "20" with "30" in the first sentence of subsection (1) and adding the following new subsection (6):

(6) Any person giving testimony pursuant to either rule 19(c)(4) or 19(c)(5) shall be entitled to obtain a transcript of his or her testimony from the transcribing court reporter upon paying the subscribed charges unless otherwise directed by an investigative panel for good cause shown.

(20) Rule 19(d)(3) is amended to read: Disciplinary counsel shall promptly notify the lawyer of the action the investigative panel has taken.

(21) Rule 19 is amended by adding the following section (e):

(e) Subsequent Complaints. Provided, not withstanding the other provisions of this Rule 19, where a lawyer is already subject to a pending full investigation, disciplinary counsel may include information received related to additional misconduct in a subsequent complaint or revealed in an investigation in a notice of full investigation, an amended notice of full investigation or a supplemental notice of full investigation without leave of the Commission and disciplinary counsel may dispense with seeking an initial response regarding such new information from the lawyer as would otherwise be required by Rule 19(b)(1).

(22) Rule 20 is amended by deleting everything after the work "purpose " in the first sentence of the rule and replacing it with the following:

unless the complaint is reopened by the Commission. A complaint dismissed prior to the filing of formal charges may be re-opened by an investigative panel upon motion of disciplinary counsel upon a finding by the investigative panel that there is new information concerning the matter dismissed, an additional complaint has been filed against the same lawyer involving related or similar allegations, or other good cause. Prior to a motion to reopen being decided, a copy of the motion to reopen containing the grounds therefor shall be served on the lawyer by disciplinary counsel, and the lawyer shall then have 10 days thereafter to file a written response with the Commission. The lawyer and the complainant shall be notified by disciplinary counsel as to the panel's decision on the motion to re-open. A matter reopened shall be deemed in the stage of investigation it was in when dismissed except as the investigative panel might otherwise direct.

(23) Rule 21 is amended by inserting the following sentence after the first sentence of Rule 21(c): "Provided, if formal charges have been filed but not heard, an investigative panel can consider the proposed agreement and affidavit if the parties both agree in writing." and adding new section 21(g) which reads as follows:

(g) Briefs and Oral Arguments. The Supreme Court may require the parties to submit briefs or participate in oral arguments in connection with the agreement. Either the lawyer or disciplinary counsel may move before the Supreme Court for permission for the parties to file briefs, to have oral arguments, or both in connection with the agreement, but the Supreme Court, in its discretion, may proceed to take action on the agreement without briefs, without oral arguments, or without either, not withstanding a request from one or both of the parties.

(24) Rule 25(b) is amended by having Rule 25(b)(1) read: "(1) non-privileged evidence relevant to the formal charges, documents to be presented at the hearing, witness statements, and summaries of interviews with witnesses who will be called at the hearing (for purposes of this paragraph, a witness statement is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded); and,"; and by adding a new sub-section (3) which reads as follows:

(3) Provided, copies of transcripts of testimony taken by a court reporter pursuant to Rule 15(b) or Rule 19(c) may be obtained by the parties from the court reporter at the expense of the requesting party and need not be made available to the requesting party by the opposing party unless not otherwise available or otherwise directed by the Commission under 25(h).

(25) Rule 26 is amended by adding a new section (e) which reads as follows:

(e) Combining Cases for Hearing. Upon motion of either party after 10 days notice to the opposing party, a hearing panel may combine for hearing two or more formal charges pending against a lawyer which have not been heard or may reconvene to hear additional formal charges against a lawyer filed prior to the hearing panel issuing a panel report concerning formal charges against the lawyer already heard by that panel.


Amendments to Rule 502, RJDE, SCACR

(1) Rule 2 is amended by relettering sections (b) through (aa) to (c) through (bb) and adding a new section (b) to read as follows:

(b) Closed, But Not Dismissed: a manner of disposing of a matter where a panel of the Commission makes a finding that the matter should not be dismissed, but it is either impossible or impractical to proceed with the matter because it appears that the judge is deceased, disappeared, incarcerated, physically or mentally incapacitated, or removed from judicial duties, or for other good cause. If the judge files a written objection with the Commission and serves a copy of that objection on disciplinary counsel within 10 days of service of notice that the matter was closed, but not dismissed, the matter shall be deemed reopened and in the full investigation phase. Any objection need not contain any grounds for objecting. Before a matter can be reopened after being closed, but not dismissed, an investigative panel of the Commission must make a finding that there has been a change in the circumstances that were the basis for the matter to be closed, but not dismissed, or that there is other good cause for it to be reopened. Before a motion can be considered by an investigative panel of the Commission to reopen a matter that has been previously closed, but not dismissed, disciplinary counsel shall serve a copy of the motion to do so containing the grounds to reopen on the judge and then the judge shall have 10 days to respond thereto. Disciplinary counsel shall notify both the judge and the complainant when a matter is closed, but not dismissed and when a closed, but not dismissed matter is reopened. If the panel declines to reopen the matter, disciplinary counsel shall so advise the judge.

(2) The "and" at the end of Rule 4(f)(2) and the period after Rule 4(g)(3) are deleted; "and," is added after Rule 4(f)(3); and new subsection 4(f)(4) is added to read as follows:

(4) declare, after proper notice, a matter closed, but not dismissed, after the filing of formal charges.

(3) The "and" at the end of Rule 4(g)(3) and the period after Rule 4(g)(4) are deleted; "and," is added after Rule 4(f)(4); and new subsection 4(g)(5) is added to read as follows:

(5) declare, after proper notice, a matter closed, but not dismissed, after the filing of formal charges.

(4) Rule 5(b) is amended by deleting the "and" at the end of Rule 5(b)(5) renumbering Rule 5(b)(6) as Rule 5(b)(7) and adding the following subsection:

(6) initiate and prosecute proceedings before the Commission and the Supreme Court to enforce orders related to disciplinary proceedings or related to the conduct of judicial duties by judges and to seek restraining orders and sanctions in connection with violations thereof; and,

(5) Rule 7 is amended by deleting the period after Rule 7(a)(7) and adding the following section:

(8) willfully fail to comply with the terms of a finally accepted deferred disciplinary agreement or any terms of a finally accepted agreement for discipline by consent.

(6) Rule 9 is amended by adding "when formal charges have been filed" to the end of the first sentence of the Rule.

(7) Rule 10 is amended by adding the following two sentences to the present Rule:

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.

(8) Rule 11 is amended by adding the following before the last sentence of the Rule:

and the chair and vice chair may entertain requests for permissive disclosure pursuant to Rule 12(c) and requests for subpoenas for investigation pursuant to Rule 15(b)(1) made by disciplinary counsel without notice to the judge. Where disciplinary counsel makes a request to the chair or vice chair pursuant to either Rule 12(c) or 19(b)(1) without notice to the judge, the request shall so state and set forth the reason that notice is not being given.

(9) Rule 12(b) is amended by adding "or the Supreme Court" to the first clause of the second sentence of the rule and adding "inclusive of a letter of caution or admonition issued after the filing of formal charges" after the second clause of the Rule 12(b).

(10) Rule 12(c) is amended by replacing the period at the end of Rule 12(c)(3) with a semi-colon and adding the following two subsections:

(4) to persons from whom and entities from which it appears that a judge has misappropriated monies or other property when the chair or vice-chair or a panel of the Commission has determined that the disclosure of the information will tend to prevent further misappropriation or likely facilitate restitution, recovery, or compensation; or,

(5) to the appropriate disciplinary authority in any jurisdiction in which a judge is admitted to practice law or has applied for admission to practice law concerning a matter where there is evidence the judge committed misconduct under any lawyer or judicial disciplinary rules of that jurisdiction or where a judge receives any sanction under Rule 7(b).

(11) Rule 12 is amended by adding the following subsection (f):

(f) Permissive disclosure by the parties. Either party may disclose in proceedings before a hearing panel statements and other evidence, gathered prior to the matter becoming public after the filing of formal charges, that were subject to discovery under Rule 25 to the extent admissible under South Carolina Rules of Civil Procedure or South Carolina Rules of Evidence.

(12) Rule 14(b)(2) is renumbered 14(b)(4) and the following sub-sections are added to the Rule:

(2) By Disciplinary Counsel. Disciplinary counsel may extend the time for responses due from a judge under Rules 19(b)(1), 19(c)(3), and 23(a) for one or more periods not to exceed 30 days in the aggregate for each.

(3) By the Parties. Disciplinary counsel and the judge may, by written agreement, extend the time to respond under 19(b)(1), 19(c), or 23(a) after the execution and delivery by both parties of an agreement for discipline by consent or deferred disciplinary agreement for the duration of the period the agreement is awaiting a final disposition and for a period of 30 days thereafter if the Agreement is not accepted.

(13) The first sentence of Rule 15(b)(1) is amended by deleting the word "and" before the word "documents" and adding the following after the word "documents": "(whether in typed, printed, written, digital, electronic, or other format), and other tangible evidence". Further the last sentence of present Rule 15(b)(1) is deleted.

(14) The first sentence of Rule 15(b)(2) is amended by deleting the word "and" before the word "documents" and adding the following after the word "documents": "(whether in typed, printed, written, digital, electronic, or other format), and other tangible evidence"; by adding "or direct disciplinary counsel to subpoena witnesses or documents and provide the subpoenaed information to the investigative panel" to the end of the second sentence; and, by deleting the final sentence of present Rule 15(b)(2).

(15) Rule 15 is amended by adding the following section (f):

(f) Subpoena Pursuant to Law of Another Jurisdiction. Whenever a subpoena is sought in this State pursuant to the law or disciplinary rules of another jurisdiction for use in lawyer or judicial disciplinary or disability proceedings, and where the issuance of the subpoena has been duly approved under the applicable laws or rules of the other jurisdiction, the chair or vice-chair or a panel of the Commission upon a showing of good cause, may issue a subpoena to compel the attendance of witnesses and the production of documents in the county where the witness resides or is employed or elsewhere in this state as agreed by the witness. Service, enforcement, or challenges to such subpoenas shall be as provided in these rules.

(16) Sections (c) and (d) of Rule 17 are renumbered (d) and (e) and a new section (c) is added to read as follows:

(c) Failure to Respond to Notice of Full Investigation, Subpoena, or Notice of Appearance. Upon receipt of sufficient evidence demonstrating that a judge has failed to fully respond to a notice of full 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 Rules 19(c)(4) or (5), 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.

(17) Rule 19(b)(1) is amended by adding the following sentence at the end of the subsection: The judge shall file a written response with disciplinary counsel to a request within 15 days of notice to do so from disciplinary counsel.

(18) Rule 19(b)(3) is amended by adding the following after the second clause "issue a letter of caution without a finding of misconduct," and by adding the following after the word "caution" in the next clause "with a finding of minor misconduct".

(19) Rule 19(c) is amended by replacing "20" with "30" in the first sentence of subsection (1) and adding the following new subsection (6):

(6) Any person giving testimony pursuant to either rule 19(c)(4) or 19(c)(5) shall be entitled to obtain a transcript of his or her testimony from the transcribing court reporter upon paying the subscribed charges unless otherwise directed by an investigative panel for good cause shown.

(20) Rule 19(d)(3) is amended to read: Disciplinary counsel shall promptly notify the judge of the action the investigative panel has taken.

(21) Rule 19 is amended by adding the following section (e):

(e) Subsequent Complaints. Provided, not withstanding the other provisions of this Rule 19, where a judge is already subject to a pending full investigation, disciplinary counsel may include information received related to additional misconduct in a subsequent complaint or revealed in an investigation in a notice of full investigation, an amended notice of full investigation or a supplemental notice of full investigation without leave of the Commission and disciplinary counsel may dispense with seeking an initial response regarding such new information from the judge as would otherwise be required by Rule 19(b)(1).

(22) Rule 20 is amended by deleting everything after the work "purpose " in the first sentence of the rule and replacing it with the following:

unless the complaint is reopened by the Commission. A complaint dismissed prior to the filing of formal charges may be re-opened by an investigative panel upon motion of disciplinary counsel upon a finding by the investigative panel that there is new information concerning the matter dismissed, an additional complaint has been filed against the same judge involving related or similar allegations, or other good cause. Prior to a motion to reopen being decided, a copy of the motion to reopen containing the grounds therefor shall be served on the judge by disciplinary counsel, and the judge shall then have 10 days thereafter to file a written response with the Commission. The judge and the complainant shall be notified by disciplinary counsel as to the panel's decision on the motion to re-open. A matter reopened shall be deemed in the stage of investigation it was in when dismissed except as the investigative panel might otherwise direct.

(23) Rule 21 is amended by inserting the following sentence after the first sentence of Rule 21(c): "Provided, if formal charges have been filed but not heard, an investigative panel can consider the proposed agreement and affidavit if the parties both agree in writing." and adding new section 21(g) which reads as follows:

(g) Briefs and Oral Arguments. The Supreme Court may require the parties to submit briefs or participate in oral arguments in connection with the agreement. Either the judge or disciplinary counsel may move before the Supreme Court for permission for the parties to file briefs, to have oral arguments, or both in connection with the agreement, but the Supreme Court, in its discretion, may proceed to take action on the agreement without briefs, without oral arguments, or without either, not withstanding a request from one or both of the parties.

(24) Rule 25(b) is amended by having Rule 25(b)(1) read: "(1) non-privileged evidence relevant to the formal charges, documents to be presented at the hearing, witness statements, and summaries of interviews with witnesses who will be called at the hearing (for purposes of this paragraph, a witness statement is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded); and,"; and by adding a new sub-section (3) which reads as follows:

(3) Provided, copies of transcripts of testimony taken by a court reporter pursuant to Rule 15(b) or Rule 19(c) may be obtained by the parties from the court reporter at the expense of the requesting party and need not be made available to the requesting party by the opposing party unless not otherwise available or otherwise directed by the Commission under 25(h).

(25) Rule 26 is amended by adding a new section (e) which reads as follows:

(e) Combining Cases for Hearing. Upon motion of either party after 10 days notice to the opposing party, a hearing panel may combine for hearing two or more formal charges pending against a judge which have not been heard or may reconvene to hear additional formal charges against a judge filed prior to the hearing panel issuing a panel report concerning formal charges against the judge already heard by that panel.