The Supreme Court of South Carolina

RE:   Rule 402 of the South Carolina Appellate Court Rules

ORDER

Pursuant to Article V, §4, of the South Carolina Constitution, Rule 402 of the South Carolina Appellate Court Rules is amended to read as shown in the attachment to this order.  This amended rule is effective immediately, and shall apply to all applications for admission to practice law in South Carolina based on the Uniform Bar Examination (UBE) starting with the February 2017 bar examination.  Applications for admission based on a transfer of a UBE score from another jurisdiction will not be accepted for filing until May 1, 2017.

The current version of Rule 402 shall remain in effect for the July 2016 South Carolina Bar Examination and shall continue to govern all aspects of admission based on South Carolina Bar Examinations conducted prior to February 2017.

Columbia, South Carolina
June 24, 2016

RULE 402
ADMISSION TO PRACTICE LAW

(a) Purpose.  This rule provides for the admission of persons to practice law in South Carolina.  A person admitted under this rule is eligible to be a regular member of the South Carolina Bar under Rule 410 of the South Carolina Appellate Court Rules.  Other rules provide for the issuance of limited certificates of admission and pro hac vice admission in South Carolina.

(b) Definitions. 

(1) ABA Approved Law School:  A law school that was approved by the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association at the time the degree was conferred.  An approved law school includes a school that is provisionally approved by the Council.¹

(2) Board of Law Examiners:  The Board established by section (k) of this rule.

(3) Committee on Character and Fitness:  The Committee established by section (l) of this rule.

(4) Existing UBE Score:  A Uniform Bar Examination (UBE) score previously obtained in South Carolina or another jurisdiction.

(5) Filing:   For the purposes of this rule, filing means:

(i) delivering the document to the Clerk of the Supreme Court;

(ii) depositing the document in the U.S. mail, properly addressed to the Clerk of the Supreme Court, with sufficient first class postage attached; or

(iii) uploading the document or information on the Bar Admissions page of the South Carolina Judicial Department Website to the extent that electronic filing is provided by that website.²

The date of filing shall be the date of delivery, the date of mailing, or the date of uploading.

(6) MPRE:  The Multistate Professional Responsibility Examination administered by the National Conference of Bar Examiners.³

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

(8) UBE:  The Uniform Bar Examination prepared by the National Conference of Bar Examiners.  The UBE is composed of the Multistate Performance Test (MPT), Multistate Essay Examination (MEE), and the  Multistate Bar Examination (MBE), which are prepared by, given, and graded in accordance with the standards established by the National Conference of Bar Examiners.⁴

(c) Qualifications for Admission.  Except as provided in section (j) below, no person shall be admitted to the practice of law under this rule unless the person:

(1) is at least twenty-one (21) years of age;

(2) is of good moral character;

(3) has received a JD or LLB degree from an ABA Approved Law School.  An applicant who has applied to take the UBE in South Carolina and has not provided proof of graduation by July 10th for the July UBE or February 10th for the February UBE shall not be allowed to sit for the examination.  An applicant, however, who has not graduated may sit for the UBE in South Carolina if the law school certifies in writing that the applicant has completed all requirements for graduation by July 10th for the July examination or February 10th for the February examination; the applicant must provide proof of graduation by April 1st following the February examination or October 1st following the July examination;

(4) has been found qualified by a panel of the Committee on Character and Fitness;

(5) has received a score of 266 or higher on the UBE administered in South Carolina or any other jurisdiction.  A UBE score that is more than three (3) years old may not be used to satisfy this requirement.  For a UBE administered in February, this three (3) year period shall begin on March 1st following the examination.  For a UBE administered in July, this three (3) year period shall begin on August 1st following the examination.  Applications seeking admission based on an existing UBE score from another jurisdiction will not be accepted until May 1, 2017;
 
(6) has received a scaled score of at least seventy-seven (77) on the MPRE.  This score must be from an administration of the MPRE that occurred within three (3) years of the date on which the application for admission is filed with the Clerk of the Supreme Court.  While an application for admission can be filed without proof of completion of this requirement, applicants are warned that failure to timely submit proof of completion of this requirement can significantly delay admission as indicated by section (h)(2) of this rule;

(7) is not disbarred, suspended from the practice of law, or the subject of any pending disciplinary proceeding in another jurisdiction;

(8) has successfully completed a Course of Study on South Carolina Law.  The content and method of delivery of this Course of Study shall be determined by the Board of Law Examiners.  The Course of Study may not be taken prior to the filing of a complete application with the Clerk of the Supreme Court.  Successful completion of the Course of Study may be used to satisfy the requirements of this rule for subsequent applications filed within three (3) years of the date of completion of the Course of Study.  Applicants are warned that the failure to promptly complete this requirement can significantly delay admission as indicated by section (h)(2) of this rule; and

(9) has paid the fees required by this rule and taken the oath or affirmation specified by section (h)(3) of this rule.

(d) Application for Admission.

(1) Filing Application.  Any person desiring to be admitted to practice law under this rule shall file an application for admission with the Clerk of the Supreme Court.  The application form shall be approved by the Committee on Character and Fitness and shall be available on the Bar Admissions page of the South Carolina Judicial Department Website.  An application will not be considered complete until both the fully completed application (along with any required attachments) and fee(s) are received by the Clerk of the Supreme Court.  The application fees shall be paid by check or money order made payable to the Clerk of the Supreme Court.

(2) Applications for Admission Based on an Existing UBE Score.   Applications based on an existing UBE Score (as defined in section (b) of this rule) will not be accepted for filing until May 1, 2017.  On and after that date, these applications may be filed at any time.  If based on a UBE Score from another jurisdiction, the applicant must have the score transferred to South Carolina by the National Conference of Bar Examiners.⁵

The non-refundable application fee shall be $1,000.  If the applicant has been admitted to practice law for more than one (1) year in another state, the District of Columbia, or another country at the time the application for admission is filed, the applicant shall pay an additional fee of $750.  If the application is withdrawn, the applicant shall not be entitled to a refund of the application fee(s) or to have the application fee(s) credited to a later application. 

(3) Applications for Admission Where the Applicant Will Take the UBE in South Carolina.   Applications for admission shall be accepted from December 1st to January 31st for the July UBE and from August 1st to September 30th for the February UBE for applicants who desire to take the UBE in South Carolina.  The non-refundable application fee shall be:

(i) $1,000 for applications filed from December 1st to January 10th or from August 1st to August 31st.

(ii) $1,500 for applications filed during the remainder of the application periods.

If the applicant has been admitted to practice law for more than one (1) year in another state, the District of Columbia, or another country at the time the application is filed, the applicant shall pay an additional fee of $750.  If the application is withdrawn or the applicant fails to sit for the examination, the applicant shall not be entitled to a refund of the application fee(s) or to have the application fee(s) credited to a later application.

An applicant taking the UBE in South Carolina must sit for all portions of the examination in South Carolina, and may not use scores from a previous examination to satisfy this requirement.  

(4) Applicants Who Have Failed to Receive a Qualifying Score on Three or More Bar Examinations.  An applicant who has failed to receive a qualifying score on three or more bar examinations shall not be eligible to sit for the UBE in South Carolina until at least one (1) year following the administration of the last bar examination resulting in a non-qualifying score.  For the purpose of this provision, an applicant shall be treated as receiving a non-qualifying score on a bar examination if:  (1) the applicant failed a bar examination in South Carolina prior to February 2017; or (2) the applicant sat for the UBE in this or any other jurisdiction and failed to receive a score of 266 or higher.

(5) Duty to Keep Application Current.  Until admitted, an applicant is under a continuing obligation to keep the application for admission current and must update responses whenever there is an addition or a change to information previously filed with the Clerk of the Supreme Court.  These updates must be filed with the Clerk of the Supreme Court along with all relevant documentation.

(6) Special Accommodations for Disabled Applicants.  An applicant needing special accommodations for the administration of the UBE in South Carolina due to a disability shall submit a written request for such accommodations to the Board of Law Examiners.  The procedure and forms to be used in making a written request shall be specified in the rules of the Board of Law Examiners.⁶  Unless the chair of the Board determines there is good cause to allow a late request, written requests for special accommodations must be submitted by November 1st for the February UBE and April 1st for the July UBE.

(e) False and Misleading Information.  An applicant who knowingly provides false or misleading information in an application (to include any attachments to the application), document, or statement submitted or made to the Committee on Character and Fitness, the Board of Law Examiners, or the staff of the Supreme Court shall be guilty of contempt of the Supreme Court and may be punished accordingly.  For the purpose of this rule, false or misleading information shall include the knowing omission of material information by an applicant in the application (to include any attachments to the application) or in response to an inquiry by the Committee on Character and Fitness, the Board of Law Examiners or staff of the Supreme Court.  Any allegation that an applicant has violated this section shall be investigated by the Committee on Character and Fitness using the procedures in sections (g) and (l)(5) of this rule.  If it is determined that the applicant has violated this section, the Supreme Court may take such action as it deems appropriate.  This may include, but is not limited to, finding the applicant in contempt, finding the applicant unfit for admission, prohibiting the applicant from using the results of the examination for admission, and/or preventing the applicant from reapplying for admission for up to five (5) years.  Further, if the applicant has already been admitted, the Supreme Court may vacate the admission or discipline the lawyer under Rule 413 of the South Carolina Appellate Court Rules.

(f) Administration of the UBE in South Carolina.

(1) When Given.  The UBE shall be administered twice each year on the last consecutive Tuesday and Wednesday in February and July.  The MPT and MEE will be given on Tuesday, and the MBE will be given on Wednesday.

(2) Anonymous Grading; Prohibited Comments in Answer Sheets and Booklets.  Applicants taking the UBE in South Carolina shall be assigned an identification number that shall be used for the purposes of taking and grading the examination.  Except for the identification number and any other information the applicant may be directed to provide by those administering the examination, answer sheets or booklets for the examination shall contain no other information revealing the identity of the applicant.  Any reference to the applicant's economic status, social standing, employment, personal hardship, or other extraneous information in the answer sheets or booklets is prohibited.

(3) Notification of Results.  For applicants who take the UBE in South Carolina, the Clerk of the Supreme Court shall notify each applicant of the score received on the UBE and on the MBE.  Additionally, the names of those receiving a score of 266 or higher on the UBE, and the identification numbers of those receiving a score of less than 266 on the UBE shall be posted on the Bar Admissions page of the South Carolina Judicial Department Website.

(4) Access to Examination Answers; Re-grading or Other Review.  No applicant shall be given access to the answers the applicant submitted during a UBE taken in South Carolina.  The results reported for the examination are final, and no applicant shall be allowed to seek re-grading or any other review of the results of the examination.

(5) Request for Verification of Multistate Bar Examination.  While no review or inspection of the MBE will be permitted, an applicant who took the UBE in South Carolina may request a hand grading of the MBE.  Any such request must be filed with the Clerk of the Supreme Court, along with the applicable fee, within fifteen (15) days of the date of the notification in (3) above.⁷

(6) Prohibited Contacts.  An applicant shall not, either directly or through an agent, contact any member of the Board of Law Examiners or any member of the Supreme Court regarding the questions on any section of the examination, grading procedures, or an applicant's answers.  This provision does not prohibit an applicant from seeking verification of the MBE score as permitted by (5) above.

(7) Cheating and Other Prohibited Acts.  An applicant taking the UBE in South Carolina shall not:

(i) cheat or attempt to cheat on the UBE in South Carolina;

(ii) assist or attempt to assist another in cheating on the UBE in this or any other jurisdiction;

(iii) possess an item on the premises of the examination site or in the examination room if the possession of that item is prohibited by the Board of Law Examiners; or

(iv) remove or attempt to remove any testing material from the examination room or site.

Any allegation that an applicant has violated this section shall be investigated by the Committee on Character and Fitness using the procedures in sections (g) and (l)(5) of this rule.  If it is determined that the applicant has violated this section, the Supreme Court may take such action as it deems appropriate.  This may include, but is not limited to, finding the applicant unfit for admission, prohibiting the applicant from using the results of the examination for admission, and/or preventing the applicant from reapplying for admission for up to five (5) years.  Further, if the applicant has already been admitted, the Supreme Court may vacate the admission or discipline the lawyer under Rule 413 of the South Carolina Appellate Court Rules.  Finally, an applicant committing one of these prohibited acts shall be guilty of contempt of the Supreme Court and may be punished accordingly.

(g) Determination of Character and Fitness for Admission.

(1) Determination by Committee on Character and Fitness.  The Committee on Character and Fitness shall consider the application and any further information it deems relevant to determine if the applicant has the requisite qualifications and character to be admitted to practice law in this state.  The Committee shall notify the Clerk of the Supreme Court whether it finds the applicant qualified or unqualified and, if found to be unqualified, the Clerk shall notify the applicant of this finding.  An applicant found to be unqualified shall not be allowed to sit for the UBE in South Carolina.  If the Committee has not made a determination of the applicant's qualification by July 1st for the July examination or February 1st for the February examination, the applicant shall be allowed to sit for the examination, and the Committee shall make its determination after the examination is administered.

(2) Determination of Fitness of Certain Law Students.  A student enrolled in an ABA Approved Law School who has a character problem that might disqualify the student from being admitted to practice law may have the matter resolved by filing a provisional application.  The application shall be made on a form approved by the Committee on Character and Fitness and shall be filed in duplicate with the Clerk of the Supreme Court.  Each request must be accompanied by a non-refundable fee of $100.  The Committee on Character and Fitness may begin an immediate investigation of the individual's character and shall promptly notify the individual of its determination.  No adverse inference concerning an applicant's character and fitness shall be drawn because the applicant filed a provisional application, nor does the filing of a provisional application relieve an applicant from fully complying with the normal application process.

(3) Review by Supreme Court of Fitness Determination; Re-application.  Any applicant dissatisfied with the determination of the Committee on Character and Fitness may petition the Supreme Court for review within fifteen (15) days of the date of the notification advising the applicant of the Committee's determination.  The petition shall comply with the requirements of Rule 240 of the South Carolina Appellate Court Rules, to include the filing fee required by that rule.  An applicant who is found not to be qualified by the Committee or whose petition for review of the Committee's determination has been denied may not reapply for admission until two (2) years after the date of the notification advising the applicant of the Committee's determination.

(h) Admission.

(1) Admission Ceremonies.  Admission ceremonies shall be conducted by the Supreme Court in February, May, September, and November.  Applicants must have submitted proof of completion of all requirements for admission (see section (c) of this rule) at least ten (10) days prior to the scheduled date of the ceremony to participate in that ceremony.  Applicants who take the February UBE in South Carolina are expected to have all requirements for admission completed for the May ceremony following the examination, and applicants who take the July UBE in South Carolina are expected to have all requirements for admission completed for the November ceremony following the examination.  Applicants will be notified of the date and time of the admission ceremony.

(2) Special Admission Ceremonies.  On petition, the Supreme Court may schedule applicants for admission on other dates based on compelling circumstances such as illness or irreconcilable conflicts that prevent the applicant from appearing at one of the ceremonies established in (1) above.  Applicants who are ineligible to participate in one of the admission ceremonies established in (1) above due to their failure to timely submit proof of completion of the MPRE or the Course of Study on South Carolina Law are not eligible to be admitted at a special admission ceremony.

(3) Fee and Oath.   To be admitted, the applicant must pay a fee of $50 and take and subscribe the following oath or affirmation:

Lawyer's Oath

I do solemnly swear (or affirm) that:

I am duly qualified, according to the Constitution of this State, to exercise the duties of the office to which I have been appointed, and that I will, to the best of my ability, discharge those duties and will preserve, protect, and defend the Constitution of this State and of the United States;

I will maintain the respect and courtesy due to courts of justice, judicial officers, and those who assist them;

To my clients, I pledge faithfulness, competence, diligence, good judgment, and prompt communication;

To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications;

I will not pursue or maintain any suit or proceeding which appears to me to be unjust nor maintain any defenses except those I believe to be honestly debatable under the law of the land, but this obligation shall not prevent me from defending a person charged with a crime;

I will employ for the purpose of maintaining the causes confided to me only such means as are consistent with trust and honor and the principles of professionalism, and will never seek to mislead an opposing party, the judge, or jury by a false statement of fact or law;

I will respect and preserve inviolate the confidences of my clients, and will accept no compensation in connection with a client's business except from the client or with the client's knowledge and approval;

I will maintain the dignity of the legal system and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;

I will assist the defenseless or oppressed by ensuring that justice is available to all citizens and will not delay any person's cause for profit or malice;

[So help me God.]

The oath or affirmation shall be administered in open Court, and all persons admitted shall sign their names in a book, kept for that purpose, in the office of the Clerk of the Supreme Court.

(i) Failure to be Admitted.    

(1) Applicants Seeking Admission Based on An Existing UBE Score.  If an applicant seeking admission based on an existing UBE score (as defined in section (b) of this rule) is not admitted within one (1) year of the date of the filing of the application, the applicant must file a supplemental application with the Clerk of the Supreme Court.  The supplemental application shall be on a form prescribed by the Committee on Character and Fitness, and the applicant may not be admitted to the South Carolina Bar unless the Committee on Character and Fitness makes a re-determination that the applicant is qualified.  The filing shall be accompanied by a fee of $250.  Further, the application for admission (along with the supplemental application) shall be treated as being withdrawn if the applicant fails to be admitted within two (2) years of the date of the filing of the application.

(2) Applicants Taking the UBE in South Carolina.  If an applicant taking the UBE in South Carolina is not admitted within one (1) year of the date of the notification advising the applicant that the applicant has received a qualifying score on the UBE for admission, the applicant must file a supplemental application with the Clerk of the Supreme Court.  The supplemental application shall be on a form prescribed by the Committee on Character and Fitness, and the applicant may not be admitted to the South Carolina Bar unless the Committee on Character and Fitness makes a re-determination that the applicant is qualified.  The filing shall be accompanied by a fee of $250.  Further, the application for admission (along with the supplemental application) shall be treated as being withdrawn if the applicant fails to be admitted within two (2) years of the date of the notification advising the applicant that the applicant has received a qualifying score on the UBE for admission.  

(j) Admission of Certain Law Professors.  A person serving as the Dean or as a tenured professor at the University of South Carolina School of Law or the Charleston School of Law may be admitted to practice law in this State without complying with the requirements of sections (c)(5) (qualifying UBE score), (c)(6) (qualifying MPRE scaled score), and (c)(8) (successful completion of Course of Study on South Carolina Law) of this rule if the Dean or professor:

(1) has been admitted to practice law in the highest court of another state or the District of Columbia for at least five (5) years;

(2) has been a full-time and continuous member of the faculty of the law school with the rank of assistant professor of law or higher for the previous three (3) or more complete academic years; and
 
(3) has been recommended for admission by the Dean of the law school, or in the case of the Dean, by the President of the University of South Carolina or the Chairman of the Board of Directors of the Charleston School of Law.

The application for admission shall be made on a form prescribed by the Committee on Character and Fitness, and shall be filed with the Clerk of the Supreme Court.  The application shall be accompanied by a non-refundable application fee of $1,000.  The Dean or professor must comply with all other requirements of section (c) of this rule.  If found qualified by the Committee on Character and Fitness, the Dean or professor shall be admitted upon taking the oath and paying the fee specified by section (h) of this rule.

(k) Board of Law Examiners.

(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 or workers' compensation commission 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) Chair; Secretary. The Supreme Court shall appoint a chair from among the members of the Board of Law Examiners.  The Clerk of the Supreme Court shall serve as secretary of the Board ex officio.

(3) Duties. The Board of Law Examiners shall conduct the UBE in South Carolina.  The Board shall be responsible for grading the MPT and the MEE portions of the examination.  The Board shall develop a Course of Study on South Carolina Law that an applicant must successfully complete prior to being admitted under this rule.  The content and method of delivery of this Course of Study shall be determined by the Board.  The Board may promulgate rules and regulations including those relating to the accommodation of applicants with disabilities.  These rules and regulations shall not become effective until at least ninety (90) days after they are approved by the Supreme Court.

(l)      Committee on Character and Fitness.

(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 or workers' compensation commission 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 South Carolina Bar to serve the remainder of the unexpired term.

(2) Chair; Secretary.  The Supreme Court shall appoint a chair and a secretary from among the members of the Committee on Character and Fitness.

(3) Panels and Meetings.  The members shall be divided by the chair into panels composed of three (3) members.  The chair may rotate membership on the panels, and may substitute members between panels. Panels shall meet when scheduled by the chair or the Committee, and the full Committee may meet to consider administrative matters.  Meetings of the Committee other than periodic meetings may be called by the chair upon the chair's own motion and shall be called by the chair upon the written request of three members of the Committee.

(4) Quorum.  A quorum for a meeting of the full Committee shall be seven (7) members, and a quorum for a panel shall be three (3) members.

(5) Duties.  The Committee on Character and Fitness shall investigate and determine whether an applicant for admission possesses the qualifications prescribed by this rule as to age, legal education, and character.  The applicant must establish to the reasonable satisfaction of a majority of a panel that the applicant is qualified.  In conducting investigations, a panel may take and hear testimony, compel by subpoena the attendance of witnesses, and require the applicant to appear for a hearing before a panel or for a personal interview before a single member of the Committee.  An applicant will not be denied admission by the Committee without being afforded the opportunity for a hearing before a panel.  Any member of the Committee may administer oaths and issue subpoenas.  The Committee may adopt rules that shall become effective upon approval by the Supreme Court.  In addition, the Committee shall perform the duties specified by Rule 33 of the Rules for Lawyer Disciplinary Enforcement contained in Rule 413 of the South Carolina Appellate Court Rules, and any other duties as directed by the Supreme Court.

(m) Confidentiality and Release of Information.
 
(1) The files and records maintained by the Board of Law Examiners, the Committee on Character and Fitness, and the Clerk of the Supreme Court relating to applications for admission, examinations, and admissions shall be confidential, and shall not be disclosed except as necessary for the Board, the Committee, or the Clerk of the Supreme Court to carry out their responsibilities. The Board of Law Examiners, the Committee on Character and Fitness, and the Clerk of the Supreme Court may disclose information to the National Conference of Bar Examiners and to the bar admission authorities in other jurisdictions, and may disclose the names of those persons who have received a score of 266 or higher on a UBE administered in South Carolina, or those who are or will be admitted and the date of their admission.  Information may be released as provided by Rule 410(f) of the South Carolina Appellate Court Rules.  The Supreme Court may authorize the release of confidential information to other persons or agencies.

(2) Beginning with the results of the February 2017 examination, the Clerk of the Supreme Court may release the following information to a law school regarding a graduate of that law school who has taken the UBE in South Carolina: the name of the graduate, the UBE and scaled MBE scores the graduate received, and the number of times the graduate has taken a bar examination in South Carolina.  Any information released to law schools pursuant to this rule shall be kept confidential by the law school, shall only be used for statistical analysis, and shall only be released for purposes of reporting aggregated information to accrediting bodies.  Each law school requesting the release of the above information shall, on a form approved by the Supreme Court, agree to comply with the confidentiality and use restrictions placed on this information

(n) Immunity.

(1) The Board of Law Examiners, the Committee on Character and Fitness, and the members, employees, and agents of the Board of Law Examiners or the Committee of Character and Fitness, are absolutely immune from all civil liability for conduct and communications occurring in the performance of their official duties relating to the examination, character and fitness qualification, and licensing of persons seeking to be admitted, readmitted, or reinstated to the practice of law.

(2) Records, statements of opinion, testimony and other information regarding an applicant for admission, readmission or reinstatement to the Bar communicated by any entity, including any person, firm, or institution, to the Board of Law Examiners, the Committee on Character and Fitness, or to the members, employees or agents of the Board of Law Examiners or Committee on Character and Fitness, are absolutely privileged, and civil suits predicated thereon may not be instituted.