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2011-01-19-01

The Supreme Court of South Carolina

RE: Amendments to the South Carolina Appellate Court Rules


O R D E R


The Office of Commission Counsel has proposed several amendments to the Rules for Lawyer Disciplinary Enforcement (RLDE) and the Rules for Judicial Disciplinary Enforcement (RJDE), which are contained within Rules 413 and 502, SCACR.  The Commission on Lawyer Conduct and the Commission on Judicial Conduct voted to approve the proposed amendments following the October 26, 2010, annual meeting of the Commissions.

First, Commission Counsel seeks amendments to the RLDE and the RJDE to eliminate the requirement that a letter of caution specify whether minor misconduct was committed.  Second, Commission Counsel requests that the RLDE be amended to clarify that only the Chair or Vice Chair of the Commission on Lawyer Conduct has the authority to issue orders to assist attorneys to protect clients' interests.  Finally, Commission Counsel seeks to amend the RJDE to make the definition of a "Serious Crime" within the RJDE identical to the definition of a Serious Crime within the RLDE. 

Pursuant to Article V, § 4, of the South Carolina Constitution, we hereby amend the South Carolina Appellate Court Rules as set forth in the attachment to this order.  The amendments are effective immediately.             

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
January 19, 2011


Rule 413, SCACR, is amended as follows:

RULE 2
TERMINOLOGY

.     .     .

(r)     Letter of Caution: a written caution or warning about past or future conduct issued when it is determined that no misconduct has been committed or that only minor misconduct not warranting the imposition of a sanction has been committed.  A letter of caution may be issued by disciplinary counsel, an investigative panel or the Supreme Court.  The issuance of a letter of caution is not a sanction under these rules and does not constitute a finding of misconduct.  The fact that a letter of caution has been issued shall not be considered in a subsequent disciplinary proceeding against the lawyer unless the caution or warning contained in the letter of caution is relevant to the misconduct alleged in the proceedings.

RULE 4
ORGANIZATION AND AUTHORITY OF THE COMMISSION

.     .     .

(f)     Powers and Duties of Investigative Panel.  An investigative panel shall have the duty and authority to:

(1)     review the recommendations of disciplinary counsel after investigation and either issue a letter of caution, issue notice of intent to impose a confidential admonition, enter into a deferred discipline agreement, consider an agreement for discipline by consent, authorize formal charges, refer the matter to another agency, or dismiss the complaint;

(2)     designate a member of the panel to preside over the investigative panel in the absence of the chair or vice-chair of the Commission;

(3)     declare a matter closed, but not dismissed prior to the filing of    formal charges; and,

(4)     after proper notice, re-open a matter that has been previously dismissed or closed but not dismissed.

(g)     Powers and Duties of Hearing Panel.  A hearing panel shall have the duty and authority to:

(1)     rule on pre-hearing motions, conduct hearings on formal charges and make findings, conclusions, and recommendations to the Supreme Court for the disposition of the case, pursuant to Rule 26;

.     .     .

RULE 5
DISCIPLINARY COUNSEL

.     .     .

(b)     Powers and Duties.  Disciplinary counsel shall have the authority and duty to:

(1)     receive and screen complaints, dismiss complaints, issue letters of caution, refer complaints to other agencies when appropriate, conduct investigations, notify complainants about the status and disposition of their complaints, make recommendations to an investigative panel on the disposition of complaints after investigation, file formal charges when directed to do so by an investigative panel, prosecute formal charges, and file briefs and other appropriate petitions with the Supreme Court;

.     .     .

RULE 19
SCREENING AND INVESTIGATION

.     .     .

(d)     Disposition After Investigation.

.     .     .

(2)     If disciplinary counsel believes that no misconduct has been committed, but a written caution or warning is appropriate to conclude the matter, disciplinary counsel may issue a letter of caution.

.     .     .

Rule 502, SCACR, is amended as follows:

RULE 2. TERMINOLOGY

The following terminology is used throughout these rules:

.     .     .

(q)     Letter of Caution: a written caution or warning about past or future conduct issued when it is determined that no misconduct has been committed or that only minor misconduct not warranting the imposition of a sanction has been committed.  A letter of caution may be issued by disciplinary counsel, an investigative panel or the Supreme Court.  The issuance of a letter of caution is not a sanction under these rules and does not constitute a finding of misconduct.  The fact that a letter of caution has been issued shall not be considered in a subsequent disciplinary proceeding against the judge unless the caution or warning contained in the letter of caution is relevant to the misconduct alleged in the proceedings.

.     .     .

(aa)   Serious Crime: any felony; any lesser crime that reflects adversely on the judge's honesty, trustworthiness or fitness as a judge 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.

.     .     .

RULE 4. ORGANIZATION AND AUTHORITY OF THE COMMISSION

.     .     .

(f)     Powers and Duties of Investigative Panel.  An investigative panel shall have the duty and authority to:

(1)     review the recommendations of disciplinary counsel after investigation and either issue a letter of caution, issue notice of intent to impose a confidential admonition, enter into a deferred discipline agreement, consider an agreement for discipline by consent, authorize formal charges, refer the matter to another agency, or dismiss the complaint;

.     .     .

(g)     Powers and Duties of Hearing Panel.  A hearing panel shall have the duty and authority to:

(1)     rule on pre-hearing motions, conduct hearings on formal charges and make findings, conclusions, and recommendations to the Supreme Court for the disposition of the case, pursuant to Rule 26;

.     .     .

RULE 5.  DISCIPLINARY COUNSEL

.     .     .

(b)     Powers and Duties.  Disciplinary counsel shall have the authority and duty to:

(1)     receive and screen complaints, dismiss complaints, issue letters of caution, refer complaints to other agencies when appropriate, conduct investigations, notify complainants about the status and disposition of their complaints, make recommendations to an investigative panel on the disposition of complaints after investigation, file formal charges when directed to do so by an investigative panel, prosecute formal charges, and file briefs and other appropriate petitions with the Supreme Court;

.     .     .

RULE 19.  SCREENING AND INVESTIGATION

.     .     .

(d)     Disposition After Investigation.

.     .     .

(2)     If disciplinary counsel believes that no misconduct has been committed, but a written caution or warning is appropriate to conclude the matter, disciplinary counsel may issue a letter of caution.

.     .     .     .