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2010-06-28-02

The Supreme Court of South Carolina

In re: Amendments to the Rules of Professional Conduct, Rule 407, SCACR,
and the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR.


O R D E R


The Commission on Lawyer Conduct has proposed certain revisions to the Rules of Professional Conduct, Rule 407, SCACR, and the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR.  The Commission has proposed that the filing requirement be deleted from Rule 7.2(b), RPC; that lawyers be required under Rule 8.3, RPC, to report arrests for serious crimes, that the definition of “serious crime” be added to Rule 1.0, RPC, and that the definition of “serious crime” in Rule 2, RLDE, be amended to conform to that proposed for Rule 1.0, RPC; and that provision be made in the Comment to Rule 1.15, RPC, for delivery of unidentified or unclaimed funds from a lawyer’s trust account to the Lawyers’ Fund for Client Protection.  Pursuant to Article V, § 4, of the South Carolina Constitution, we hereby adopt all but the latter of the proposed amendments, which we find is governed in part by the Uniform Unclaimed Property Act, S.C. Code Ann. § 27-18-10, et seq (2007 & Supp. 2009).  However, we hereby amend the Comment to Rule 1.15, RPC, to note the applicability of the Act.  We also amend Comment 5 to Rule 7.2, RPC, to reflect the deletion of the filing requirement for advertisements.

These amendments shall become effective immediately.  A copy of the amended rules is attached.

IT IS SO ORDERED.

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
June 28, 2010


AMENDMENTS TO RULE 407, SCACR
RULES OF PROFESSIONAL CONDUCT

RULE 7.2: ADVERTISING

(b) A lawyer is responsible for the content of any advertisement or solicitation placed or disseminated by the lawyer and has a duty to review the advertisement or solicitation prior to its dissemination to reasonably ensure its compliance with the Rules of Professional Conduct. The lawyer shall keep a copy or recording of every advertisement or communication for two (2) years after its last dissemination along with a record of when and where it was disseminated.

Comment

Record of Advertising

[5] Paragraph (b) imposes upon the lawyer the responsibility for reviewing each advertisement prior to dissemination to ensure its compliance with the Rules of Professional Conduct.  It also requires that a record of the content and use of advertising be kept in order to facilitate enforcement of this Rule.

RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT

(a) A lawyer who is arrested for or has been charged by way of indictment, information or complaint with a serious crime shall inform the Commission on Lawyer Conduct in writing within fifteen days of being arrested or being charged by way of indictment, information or complaint.

(b) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(c) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's honesty, trustworthiness, or fitness for office in other respects shall inform the appropriate authority.

(d) This Rule does not require disclosure of information otherwise protected by Rule 1.6.

(e) Inquiries or information received by the South Carolina Bar Lawyers Helping Lawyers Committee or an equivalent county bar association committee regarding the need for treatment for alcohol, drug abuse or depression, or by the South Carolina Bar law office management assistance program or an equivalent county bar association program regarding a lawyer seeking the program assistance, shall not be disclosed to the disciplinary authority without written permission of the lawyer receiving assistance. Any such inquiry or information shall enjoy the same confidence as information protected by the attorney-client privilege under applicable law.

Comment

[1] Self regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense. The South Carolina version of paragraph (c) modifies the model version by specifically including "honesty" and "trustworthiness" to parallel the requirement of paragraph (b).

[2] A report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.

[3] If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.

[4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client lawyer relationship.

[5] Paragraph (e) encourages lawyers to seek assistance from the South Carolina Bar Lawyers Helping Lawyers Committee, from a South Carolina Bar law office management assistance program, or from an equivalent county bar association program without fear of being reported for violating the Rules of Professional Conduct. Information about a lawyer's or judge's misconduct or fitness may be received by a lawyer in the course of that lawyer's participation in an approved lawyers or judges assistance program. In that circumstance, providing for an exception to the reporting requirements of paragraphs (b) and (c) of this Rule encourages lawyers and judges to seek treatment through such a program. Conversely, without such an exception, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public. These Rules do not otherwise address the confidentiality of information received by a lawyer or judge participating in an approved lawyers assistance program; such an obligation, however, may be imposed by the rules of the program or other law.

RULE 1.0: TERMINOLOGY

(n) “Serious crime” denotes any felony; any lesser crime that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; or, any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, willful failure to file income tax returns, or an attempt, conspiracy or solicitation of another to commit a serious crime.

(o) “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.

(p) “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding, or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.

(q) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording and e-mail. A “signed” writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

RULE 1.15
SAFEKEEPING PROPERTY

Comment

[7] A lawyer’s obligations with regard to identified but unclaimed funds are set forth in the Uniform Unclaimed Property Act, S.C. Code Ann. §27-18-10, et seq.

 

AMENDMENTS TO RULE 413, SCACR
RULES FOR LAWYER DISCIPLINARY ENFORCEMENT

(aa) Serious Crime: any felony; any lesser crime that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; or, any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, willful failure to file income tax returns, or an attempt, conspiracy or solicitation of another to commit a serious crime.