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2012-12-28-01

The Supreme Court of South Carolina

Re:  Amendments to the South Carolina Appellate Court Rules


ORDER


On May 7, 2012, this Court issued an order revising, among other things, Rule 410 of the South Carolina Appellate Court Rules (SCACR).  In light of this revision to Rule 410, the attached amendments are made to the SCACR.  These amendments shall be effective January 1, 2013.

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
December 28, 2012

Amendments to the South Carolina Appellate Court Rules (SCACR)

(1) Rule 402(a)(1), SCACR, is amended to read:

     (1) Members.  The Board of Law Examiners shall consist of members of the South Carolina Bar who are actively engaged in the practice of law in South Carolina and who have been members of the South Carolina Bar for at least seven (7) years.  Members of the bar who are inactive members, judicial members, military members, administrative law judge members, retired members or limited members shall not be appointed to the Board.  The Board members shall be appointed by the Supreme Court for three (3) year terms and shall be eligible for reappointment.  At least one member shall be appointed from each Congressional District.  In case of a vacancy on the Board, the Supreme Court shall appoint a member of the South Carolina Bar to serve the remainder of the unexpired term.

(2)     Rule 402(b)(1), SCACR, is amended to read:

(1) Members.   The Committee on Character and Fitness shall consist of twelve (12) members of the South Carolina Bar who shall be appointed by the Supreme Court for five (5) year terms.  Members of the bar who are inactive members, judicial members, military members, administrative law judge members, retired members or limited members shall not be appointed to the Committee.  In case of a vacancy on the Committee, the Supreme Court shall appoint a member of the Bar to serve the remainder of the unexpired term.

(3)     The second sentence of Rule 402(j)(2)(ii), SCACR, is amended to read:  "The supervising attorney must be a regular member of the South Carolina Bar who has been admitted to practice for at least five (5) years and is engaged in the active practice of law in South Carolina."

(4)     Rule 404(c)(8), SCACR, is amended to read:  "(8) the name, address, and telephone number of the regular member(s) of the South Carolina Bar who is (are) the attorney(s) of record; and"

(5)     The second sentence in Comment 10 to Rule 1.15 of the Rules of Professional Conduct contained in Rule 407, SCACR, is amended to read:  "Under Rule 411, SCACR, each regular member of the Bar is required to make an annual contribution to this fund."

(6)     The last sentence in the Preamble to Rule 408, SCACR, is amended to read:  "It is our intention that all members of the Bar and those judges (other than federal judges) who are not required to satisfy the requirements of Rule 504 shall fulfill the mandatory continuing legal education requirements specified in this Rule."

(7)     Rule 408(a), SCACR, is amended to read:

(a)     Continuing Legal Education Requirements.

          (1)     Annual Report of Compliance; Fees; Waiver and Suspension.   The reporting year under this rule shall run from March 1 through the last day in February.  Reports of compliance for the reporting year shall be due not later than March 1, and shall be submitted to the Commission on Continuing Legal Education and Specialization (Commission) on a form prepared by the Commission along with a filing fee specified in the regulations of the Commission.  The Commission may specify a penalty that must be paid if a person fails to timely file a report establishing compliance and/or pay the annual filing fee.  For good cause shown, the Commission may, in individual cases involving extraordinary hardship or extenuating circumstances, waive or modify the requirements of this rule.  When appropriate, and as a condition for any waiver or modification, the Commission may proportionally increase continuing legal education (CLE) requirements for the succeeding reporting year.  A person who fails to comply with the CLE requirements of this rule will be suspended as provided by Rule 419, SCACR.

(2)     Continuing Legal Education Requirements for Members of the South Carolina Bar.   Except as provided below, all members of the South Carolina Bar shall be required to attend at least fourteen (14) hours of approved CLE courses each reporting year.  At least two (2) of the fourteen (14) hours required annually shall be devoted to legal ethics/professional responsibility (LEPR).  At least once every three reporting years, the member must complete one (1) hour of LEPR devoted exclusively to instruction in substance abuse or mental health issues and the legal profession.  The following members of the South Carolina Bar shall be exempt from these requirements:

(A)      specialists certified pursuant to this Rule who satisfy the  CLE requirements of their specialty; provided, however, that at least two (2) hours of the CLE credits completed by certified specialists shall be devoted to LEPR.  At least once every three (3) reporting years, the member must complete one (1) hour of LEPR devoted exclusively to instruction in substance abuse or mental health issues and the legal profession.

(B)  members who are at least sixty (60) years old and have been admitted to practice law for thirty (30) or more years, and who apply to the Commission for this exemption.  Further, any exemptions granted prior to June 23, 1994, shall remain in effect. Provided, however, that if a member who receives an exemption or is entitled to an exemption under this provision is suspended for a definite period of more than six (6) months under Rule 413, SCACR, this exemption shall not apply or be granted during the suspension period;

(C)    inactive members, military members, and retired members.

(D)    judicial members who are subject to the CLE requirements of Rule 504, SCACR.

(E)     members who are federal judges or federal administrative law judges.

(F)     limited members licensed under Rule 415, SCACR (Limited Certificate of Admission for Retired and Inactive Attorney Pro Bono Participation Program).

(3)     Continuing Legal Education Requirements for Foreign Legal Consultants.  As required by Rule 424, SCACR, all foreign legal consultants shall attend at least two (2) hours of approved CLE courses devoted to LEPR each reporting year.

(8)     Rule 408(e)(1)(A), SCACR, is amended to read:  "(A) be a regular member in good standing of the South Carolina Bar;".

(9)     Rule 411(d)(1), SCACR, is amended to read:

(1)     The South Carolina Bar shall assess each regular member of the South Carolina Bar the sum of twenty ($20.00) dollars in each calendar year and shall make an appropriation to the Lawyers' Fund for Client Protection in that amount for each year of its operation; provided, however, that no assessment or appropriation may be made which will increase the assets of the fund to an amount in excess of $3,000,000. Payment and enforcement of collection shall be in the same manner and at the same time and with the same penalties for non-payment as provided for payment and collection of license fees under Rule 410, SCACR, but otherwise shall be treated as a separate assessment of regular members.

(10)   The second sentence of Rule 3 of the Rules for Lawyer Disciplinary Enforcement contained in Rule 413, SCACR, is amended to read: "34 members shall be regular members of the South Carolina Bar."

(11)   The first sentence of Rule 5(a) of the Rules for Lawyer Disciplinary Enforcement contained in Rule 413, SCACR, is amended to read: "The Supreme Court shall appoint a member of the South Carolina Bar who has been admitted under Rule 402, SCACR, as the disciplinary counsel."

(12)   The first sentence of Rule 5(c) of the Rules for Lawyer Disciplinary Enforcement contained in Rule 413, SCACR, is amended to read: "The Supreme Court may appoint such additional regular members of the South Carolina Bar as it deems appropriate to assist the disciplinary counsel in performing disciplinary counsel's duties under this rule."

(13)   The first sentence of Rule 33(f)(9) of the Rules for Lawyer Disciplinary Enforcement contained in Rule 413, SCACR, is amended to read:   "If suspended for a definite period of 9 months or more, the lawyer has, during the period of suspension, completed and reported continuing legal education and legal ethics/professional responsibility credits equal to those required of regular members of the South Carolina Bar and is currently in good standing with the Commission on Continuing Legal Education and Specialization."

(14)   The first sentence of Rule 425(i), SCACR, is amended to read:  "Mentors must be members of the South Carolina Bar who have been admitted under Rule 402, SCACR.  A person may not serve as a mentor if the person has been an inactive or retired member of the Bar for more than two years, or if the person is not a member in good standing under Rule 410, SCACR."

(15)   The fourth sentence of Rule 3(c) of the Rules for Judicial Disciplinary Enforcement contained in Rule 502, SCACR, is amended to read: "4 members shall be regular members of the South Carolina Bar who have never held a judicial office."

(16)   The first sentence of Rule 5(a) of the Rules for Judicial Disciplinary Enforcement contained in Rule 502, SCACR, is amended to read: "The Supreme Court shall appoint a member of the South Carolina Bar who has been admitted under Rule 402, SCACR, as the disciplinary counsel."

(17)   The first sentence of Rule 5(c) of the Rules for Judicial Disciplinary Enforcement contained in Rule 502, SCACR, is amended to read: "The Supreme Court may appoint such additional regular members of the South Carolina Bar as it deems appropriate to assist the disciplinary counsel in performing disciplinary counsel's duties under this rule."

(18)   The first sentence of Section B of Rule 503, SCACR, is amended to read:  "The Committee shall consist of one Circuit Court judge, one Family Court judge, and one regular member of the South Carolina Bar who does not hold and has never held a judicial office."

(19)   The first sentence of Rule 510, SCACR, is amend to read: "Being mindful of the improvements in the administration of justice that have resulted from our mandatory continuing legal education requirements for judges and members of the South Carolina Bar (see Rules 408 and 504, SCACR), this Rule establishes minimum requirements for continuing legal education (CLE) for magistrates and municipal judges and the means by which those requirements shall be enforced."

(20)   Rule 510(e), SCACR, is amended to read:

          (e)      Reports and Fees.

(1)     On forms prepared by the Commission and available through its offices, each magistrate and municipal judge shall, not later than July 15, file with the Commission a sworn annual report of compliance for the reporting year.  The compliance reporting form will be accompanied by filing fees as prescribed by the regulations of the Commission.

(2)     Magistrates and municipal judges who are members of the South Carolina Bar may show compliance with the CLE requirements of Rule 408, SCACR, by showing compliance with the continuing legal education and fee requirements of this rule.  Provided, however, that these magistrates or municipal judges must still complete at least two (2) hours of approved CLE devoted to legal ethics/professional responsibility (LEPR) during each reporting year, and, effective July 1, 2013, at least once every three (3) reporting years, the member must complete one (1) hour of LEPR devoted exclusively to instruction in substance abuse or mental health issues and the legal profession.

(21)   Rule 608(b)(1), SCACR, is amended to read:

(1)  Regular Member.  Any person who is a regular member of the South Carolina Bar under Rule 410, SCACR.

(22)   The first sentence of Rule 608(c)(1)(A), SCACR, is amended to read: " A list of all regular 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 regular 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."

(23)   The first sentence of Rule 608(c)(1)(B), SCACR, is amended to read: " A list of all other regular members eligible for appointment in the county."

(24)   The first sentence of Rule 608(c)(2), SCACR, through the colon is amend to read:  "Regular members shall, at the time of payment of annual license fees to the South Carolina Bar, provide the following information to the Bar:"

(25)   Rule 608(c)(3), SCACR, is amended to read:

(3)   Regular 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).  Regular 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.

(26)   Rule 608(c)(4), SCACR, is amended to read:  "(4)  If a member ceases to be a regular member, the Bar shall delete that member’s name from the list(s) and notify the appropriate clerk(s) of court."

(27)   The heading of Rule 608(d), SCACR, is amended to read:  "Members Who Are Exempt from Appointment."

(28)   The first sentence of Rule 608(d)(1), SCACR, through the colon is amended to read:  "The following regular members shall be exempt from appointment:"

(29)   The first sentence of Rule 608(d)(3), SCACR, is amended to read:  "Regular members shall claim an exemption at the time they file with the Bar under section (c)(2) above."

(30)   The first sentence of Rule 608(d)(5), SCACR, is amended to read:   "If a regular 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."

(31)   Rule 608(e), SCACR, is amended to read:

(e)      Regular Members Who Have Not Completed the Trial Experiences Required by Rule 403, SCACR.  A regular 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.

(32)   The first sentence of Rule 608(h)(1), SCACR, is amended to read:  "Nothing in this rule shall prohibit a circuit or family court judge from appointing a regular 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."

(33)   The first sentence of Rule 608(i), SCACR, is amended to read:  "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 regular member upon written request of that member."

(34)   Rule 609(a)(6), SCACR, is amended to read:  "(6) four regular members of the South Carolina Bar; and,"