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2009-12-17-02

The Supreme Court of South Carolina

In re: Amendments to Rule 608, South Carolina Appellate Court Rules

______________________

ORDER

______________________

In 2009, the South Carolina Bar submitted proposed amendments to Rule 608, SCACR.  The Court declined to amend the rule as requested by the Bar; however, the Court requested the South Carolina Access to Justice Commission study Rule 608 and determine whether amendments to the rule were necessary. 

The Access to Justice Commission formed a study group,[1] which made numerous recommendations concerning amendments to Rule 608.  The Commission believes its proposed amendments will create a more equitable system of appointments.  After review, the Court has elected to adopt a number of the recommended amendments.  Specifically, the Court has redrawn the regional list from which attorneys may be selected to assist in handling appointments in other counties; reduced the number of appointments an attorney may be required to handle in an appointment year; raised the age exemption for attorneys to increase the pool of available lawyers; permitted lawyers to attend certain hearings by telephone or videoconference; and amended Rule 608(i) to require more detailed and specific reporting of the numbers and types of appointments by clerks of court to the Bar. 

The Court is mindful of the burden placed on some attorneys where appointments are required.  Therefore, the Court will continue to analyze and scrutinize appointments in the trial courts to determine whether further changes to the rule are necessary.  The Court believes strongly that the amendments to Rule 608(i), which require more detailed statistics concerning appointments, will aid the Court in determining whether further changes are necessary.   

Rule 608, SCACR, is amended as set forth in the attachment to this Order.  The changes are effective July 1, 2010, the start of the next reporting year. 

IT IS SO ORDERED.

s/Jean H. Toal                                    C.J.

s/John H. Waller, Jr.                           J.

s/Costa M. Pleicones                        J.

s/Donald W. Beatty                            J.

s/John W. Kittredge                           J.

Columbia, South Carolina
December 17, 2009


[1] The Court would like to express its gratitude to the members of the study group, who expended a great deal of time and effort in studying Rule 608 and making recommendations to the Court.


RULE 608
APPOINTMENT OF LAWYERS FOR INDIGENTS

(a)     Purpose.  This rule provides a uniform method of managing the appointment of lawyers to serve as counsel for indigent persons in the circuit and family courts pursuant to statutory and constitutional mandates.

(b)     Terminology.  The following terminology is used in this rule:

(1)     Active Member:  Any active member of the South Carolina Bar as defined by the Bylaws of the Bar.  For the purpose of this rule, a person holding a limited certificate to practice law in South Carolina shall not be considered an active member.

(2)     Appointment Year:  The period from July 1 to June 30.

(3)     Supreme Court:  The Supreme Court of South Carolina.

(4)     Indigent:  Any person who is financially unable to employ counsel.  In making a determination of indigency, all factors concerning the person’s financial condition should be considered including income, debts, assets, and family situation.  A presumption that the person is indigent shall be created if the person’s net family income is less than or equal to the Poverty Guidelines established and revised annually by the United States Department of Health and Human Services and published in the Federal Register.  Net income shall mean gross income minus deductions required by law.

(5)     Death Penalty Case:  Any criminal case in which the solicitor has given notice of the intent to seek the death penalty and any post-conviction relief action challenging a proceeding in which a death sentence was imposed.

(6)     Family Member:  A spouse, child, grandchild, parent, grandparent, or other person with which the member maintains a close familial relationship.

(c)     Lists.

(1)     For each appointment year, the South Carolina Bar shall prepare two lists for each county:

(A)    Criminal List.  A list of all active members who have been certified by the Supreme Court to serve as lead counsel in death penalty cases (see Rule 421, SCACR) who are eligible for appointment in the county, and all other active members who normally represent at least three (3) clients before the court of general sessions during a calendar year and are eligible for appointment in the county.  The list shall indicate which members are death penalty certified as lead counsel, the date on which each member was admitted to practice law in South Carolina, and whether the member has completed or is exempt from the trial experiences required by Rule 403, SCACR.  This list shall be used to appoint counsel for indigents in death penalty cases [see (b)(5) above] and criminal cases, including juvenile delinquency matters.

(B)    Civil List.  A list of all other active members eligible for appointment in the county.  This list shall indicate the date on which each member was admitted to practice law in South Carolina, and whether the member has completed or is exempt from the trial experiences required by Rule 403, SCACR.  This list shall be used for the appointment of counsel for indigents in all cases other than those specified in (A) above, including post-conviction relief matters that are not death penalty cases.

These lists shall be arranged alphabetically and shall be provided to the county clerks of court at least thirty (30) days prior to the beginning of the appointment year.  In compiling the lists, the South Carolina Bar shall place each lawyer’s name on a list in the county designated in (c)(2)(A).  The lawyer’s name shall also be placed on a list in one of the counties designated in (c)(2)(B), in the discretion of the South Carolina Bar, to meet the needs of counties which require additional lawyers for appointment.

(2)     Active members shall, at the time of payment of annual license fees to the South Carolina Bar, provide the following information to the Bar:

(A)    the county in which they primarily practice in South Carolina or, if they do not practice law in South Carolina, the county in which they reside in South Carolina;

(B)    all counties in which they maintain an office, provide a significant amount of legal services, or disseminate advertisements via television, radio, billboards, newspapers, magazines, or telephone directories;

(C)    whether they are certified by the Supreme Court to serve as lead counsel in a death penalty case;

(D)    if they are not death penalty certified as lead counsel, whether their names should be placed on the criminal or civil list based on the criteria given in (c)(1) above;

(E)    if admitted after March 1, 1979, whether they have completed the trial experiences required by Rule 403, SCACR; and

(F)     the number of appointments they received in the reporting year, the number of appointments still pending at the close of the reporting year, and the total number of hours expended on appointments in the reporting year.

(3)     Active members shall notify the South Carolina Bar within thirty (30) days of any changes in the county in which they reside, primarily practice, maintain an office, provide a significant amount of legal services, or advertise as defined in (2)(B).  Active members who wish to provide service to indigents in additional counties shall notify the Bar with the name of the additional county at the time of payment of annual license fees.  The Bar shall transfer the names of those members to the appropriate list(s) and notify the appropriate clerk(s) of court.

(4)     If a member ceases to be an active member, the Bar shall delete that member’s name from the list(s) and notify the appropriate clerk(s) of court.

(5)     If a member becomes certified to serve as lead counsel in a death penalty case, the member shall, within thirty (30) days of the date of the certification, notify the South Carolina Bar.  If not already on the criminal list(s), the Bar shall transfer the member’s name to the criminal list(s). The Bar shall notify the appropriate clerk(s) of court of the certification and any transfer.

(6)     If a member would, due to conflicts of interest, be prevented from accepting cases in a county in which the member would be subjected to appointment under (c)(2), the member will designate a county in which the conflicts will not arise.

(d)     Active Members Who Are Exempt from Appointment.

(1)     The following active members shall be exempt from appointment:

(A)    Members who are prohibited by federal or state law from taking such appointments.  While not intended to be an exclusive list, this includes:

(i)      Law Clerks and Staff Attorneys for the Judicial Department under Canon 5(D), Rule 506, SCACR.

(ii)     Public Defenders who are prohibited from engaging in any private practice of law under S.C. Code Ann. § 17-3-580(A).

(iii)    Appellate Defenders who are prohibited from engaging in the private practice of law by S.C. Code Ann. §§ 17-4-40 and -50.

(B)    Members who are solicitors or assistant solicitors for a judicial circuit if those members do not engage in the private practice of law.

(C)    Members who are employed by the Office of the South Carolina Attorney General or by the United States Attorney if those members do not engage in the private practice of law.

(D)    Members who are employed by any court of this state or by any Federal Court if those members do not engage in the private practice of law.

(E)    Members who are employed by the South Carolina Administrative Law Court or by any Federal Administrative Law Judge if those members do not engage in the private practice of law.

(F)     Members who are engaged in providing legal assistance supported in whole or in part by the Legal Services Corporation established under 42 U.S.C. § 2996a if those members do not engage in the private practice of law outside that program.

(G)    Members who have been admitted to practice law in this State or another jurisdiction for thirty-five (35) years or have attained sixty-five (65) years of age.

(H)    Members who have neither an office nor a principal residence in this State, and who do not engage in the private practice of law in this State.

(I)     Members who are full time employees of the United States to include members employed by the armed forces of the United States.  To be exempt, these members may not engage in the private practice of law in this State.

(J)     Members who are full time employees of the State of South Carolina, or a political subdivision of the State, to include counties, school districts, municipalities, and public service districts.  To be exempt, these members may not engage in the private practice of law in this State.

(K)    Members who are full time care givers for a family member and do not derive any income from the practice of law in this State.

(L)    Members who have been designated pursuant to S.C. Code Ann. § 63-11-500 to represent guardians ad litem in Department of Social Services cases.  Each qualifying program may designate up to two members in each county and these members are expected to provide representation in all such cases unless there is a conflict or other good cause for not providing the representation.

(M)  Members who are serving as members or associate members of the Board of Law Examiners.

(N)    Members who are serving as members of the Committee on Character and Fitness.

(O)    Members who are serving as members of the Commission on Lawyer Conduct.

(P)    Members who are serving as members of the Commission on Judicial Conduct.

(2)     For the purpose of determining if a member is exempt, members shall not be considered to have engaged in the private practice of law by volunteering for an appointment under section (h)(1), by representing an indigent as part of the pro bono program of the South Carolina Bar, or by providing legal services for themselves or a family member as long as the services are provided without compensation.

(3)     Active members shall claim an exemption at the time they file with the Bar under section (c)(2) above.  The claim for exemption must be accompanied by sufficient information to confirm that the lawyer is in fact eligible for exemption.  The Bar shall determine if the member is exempt or non-exempt.

(4)      A member who is denied an exemption by the Bar may seek review of that determination by filing a petition with the Supreme Court within ten (10) days of receiving notice of the Bar’s determination.  The petition shall comply with the requirements of Rule 240, SCACR, including the filing fee required by that rule.

(5)     If an active member is non-exempt and becomes exempt, or is exempt and becomes non-exempt, the member shall notify the Bar of this change in status within thirty (30) days of the change.  Any member claiming to have become exempt shall provide the Bar with sufficient information to confirm that the member is in fact eligible for exemption.  The Bar shall add to, or delete from, the appropriate list the name of the member and notify the appropriate clerks of court of any additions or deletions.

(e)     Active Members Who Have Not Completed the Trial Experiences Required by Rule 403, SCACR.  An active member who has not completed the trial experiences required by Rule 403, SCACR, but has been admitted to practice law in South Carolina for six months or more, shall be fully eligible for appointment under this rule, and, at his or her expense, will be expected to associate another lawyer if necessary to carry out the appointment.

(f)     Appointments, Process of Appointments, and Relief from Appointments.

(1)     Appointments

(A)    Lead Counsel in Death Penalty Cases.  The appointment of a lead counsel to represent an indigent defendant in a death penalty case shall be made from the list of members specified in (c)(1)(A) above who have been death penalty certified as lead counsel by the Supreme Court; provided, however, that lawyers who are not certified may be appointed as lead counsel in a post-conviction relief action for a death-sentenced inmate if they have previously represented a death-sentenced inmate in a state or federal post-conviction relief proceeding as provided by S.C. Code Ann. § 17-27-160.

(B)    Other Criminal Cases.  The appointment of counsel in all other criminal cases, including juvenile delinquency matters, shall be made from the criminal list specified in (c)(1)(A) above.  A member who is death penalty certified may be appointed to a non-death penalty case.

(C)    All Other Cases.  The appointment of members as counsel in all other cases, including post-conviction relief matters that are not death penalty cases, shall be made from the civil list specified in (c)(1)(B). 

(2)     Appointment Process

(A)    Sequence of Appointments.  Appointments shall be made beginning with the name of the member whose name would follow that of the last person appointed alphabetically on the list for the preceding year and shall thereafter proceed alphabetically down the list unless there is good reason, as determined by the clerk of court or the judge, to alter the sequence.  A good reason for altering the sequence may include, but is not limited to, the necessity to obtain a lawyer with sufficient experience to serve as second counsel in a capital case, when a reason for disqualification is known at the time the appointment is being made, or when a deviation is necessary to insure that counsel is competent to handle the matter.  Once the end of the list is reached, appointments will be made from the beginning of the list.

(B)    Notification of Appointment.  Once appointments have been made, the clerk of court shall mail a copy of the order of appointment to the attorney within two business days and notify the attorney electronically where feasible.

(C)    Documenting Appointments.  Upon making an appointment, the clerk of court shall:

(i)      promptly mark the names of those members who have received appointments; and

(ii)    promptly record the total number of appointments the member has received in the county during the appointment year.

(3)     Relief from Appointments.  If a member is unable to serve for any reason, the member shall, within five (5) days of the date of receipt of the order of appointment, file a motion to be relieved with the clerk of court.  A member who becomes aware of a reason for being relieved after the expiration of the five (5) day period shall promptly file a motion to be relieved with the clerk of court.

The Chief Judge for Administrative Purposes of the court before which the matter is pending shall then consider the request to be relieved and may relieve the member if the judge finds good cause to do so.

If relieved, the member shall not receive credit for the appointment unless the order relieving the member affirmatively finds that the member has substantially performed the responsibilities of the appointment prior to being relieved.

(4)     Limitations on Numbers of Appointments

(A)    Number of Appointments in a County per Month.  A member will not receive more than one (1) appointment in any county during a calendar month.  Once all of the members on a list have received one (1) appointment in a calendar month, the county clerk of court will contact the clerk in the Lead Regional County identified in the table below.  The clerk from the Lead Regional County will provide the next names available for appointment from the list in that county and note that those members have received appointments from other Counties in the Region.  The clerk will provide sufficient names to cover the pending appointments.

(B)    Death Penalty Cases.  A member who receives an appointment as lead or second counsel in a death penalty case shall be exempt from being appointed to another death penalty case until six (6) months after the date of sentencing or, if the matter does not result in a sentence, the date when the case ends.  When a member is appointed as lead or second counsel in a death penalty case, the clerk shall mark the list to reflect the period of exemption.  Although a member may be temporarily exempt from further death penalty appointments, nothing shall prevent the member from volunteering for an appointment under (h)(1) below.

(C)    A member who receives an appointment as an attorney to protect under Rule 31, Rules for Lawyer Disciplinary Enforcement, contained in Rule 413, SCACR, or receives an assignment to investigate a matter as an attorney to assist disciplinary counsel under Rule 5(c), Rules for Lawyer Disciplinary Enforcement, 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.

(5)     Number of Appointments per Year.  A member will be subject to no more than seven (7) appointments during an appointment year.  After each member on the list has received seven (7) appointments, the county clerk of court will contact the clerk in the Lead Regional County identified at the end of this section.  The clerk from the Lead Regional County will provide the next names available for appointment from the list in that county and note that those members have received appointments from other counties in the Region.  The clerk will provide sufficient names to cover the pending appointments.  After members in the Lead Regional County have received seven (7) appointments, members in the other counties in that Region shall receive appointments until all members in the Region have received seven (7) appointments.  If further appointments in a Region are needed, other Lead Regional Counties should be contacted to provide names for appointments, beginning with the next closest Lead Regional County.

County Designations

Region

Lead Regional County

Other Counties in the Region

1

Beaufort

Allendale, Bamberg, Barnwell, Hampton, Jasper

2

Charleston

Berkeley, Clarendon, Colleton, Dorchester, Orangeburg, Williamsburg

3

Greenville

Abbeville, Anderson, Cherokee, Greenwood, Laurens, Oconee, Pickens, Spartanburg, Union

4

Lexington

Aiken, Edgefield, McCormick, Saluda

5

Richland

Calhoun, Chester, Chesterfield, Darlington, Fairfield, Kershaw, Lancaster, Lee, Marlboro, Newberry, Sumter, York

6

Horry*

(Florence and Horry Counties will split appointments in Dillon County. From January 1 through June 30, Florence County will supply overflow attorneys to Dillon County. From July 1 through December 31, Horry County will supply overflow attorneys to Dillon County.

Dillon, Florence*, Georgetown, Marion

(6)     A member who has received an appointment in a county other than the county in which the attorney primarily practices or resides may receive authorization to be present by telephone or, where available, by videoconference for hearings.  This provision does not apply to evidentiary hearings.

(g)     Minimizing Appointments.

(1)     The unnecessary appointment of lawyers to serve as counsel places an undue burden on the lawyers of this State. Before making an appointment, a circuit or family court judge must insure that the person on whose behalf the appointment is being made is in fact indigent.  Further, a lawyer should not be appointed as counsel for an indigent unless the indigent has a right to appointed counsel under the state or federal constitution, a statute, a court rule, or the case law of this State.

(2)     A lawyer should only be appointed as counsel under this rule when counsel is not available from some other source. For example, an appointment under the rule for a criminal defendant should not be made when there is a public defender available to take the appointment.

(h)    Volunteers and Substitute Counsel.

(1)     Nothing in this rule shall prohibit a circuit or family court judge from appointing an active member or any other category of member of the South Carolina Bar who may lawfully provide the representation if the member volunteers to represent an indigent.  A lawyer may volunteer for an appointment at any time regardless of whether the lawyer has completed the maximum number of appointments provided by (f)(4) or (f)(5) above.

(2)     Nothing in this rule shall prevent an appointed lawyer from obtaining a substitute counsel to take the appointment as long as the substitute counsel is eligible to take the appointment and the substitution is approved by the circuit or family court.  If the substitution is approved, only the member who originally received the appointment shall receive credit for the appointment.

(i)      Records.  Any records maintained by the South Carolina Bar, the circuit court, the family court, or a clerk of court relating to appointments under this rule shall be made available for review by any active member upon written request of that member.  The clerk of court in each county shall, quarterly, furnish the South Carolina Bar with a list setting forth the total number of appointments and the type of each appointment made by the clerk of court in that quarter.  Specifically, the clerk of court of each county shall report, on a form prepared by the South Carolina Bar:

(1)     the total number of lawyers appointed, transferred to, or received from other counties pursuant to (f)(5).

(2)     the type of appointments made, including the total number of appointments in:         

(A)    death penalty matters in the court of general sessions;
(B)    general criminal matters in the court of general sessions;
(C)    post-conviction relief matters in the court of common pleas;
(D)    sexually violent predator matters in the court of commons pleas;
(E)    juvenile delinquency matters in the family court;
(F)     family court matters, to include whether the member was appointed as counsel for a parent, child, or guardian ad litem;
(G)    any other type of appointment.

Last amended by Order dated December 17, 2009, and effective July 1, 2010.