The Supreme Court of South Carolina

Re: Amendments to the South Carolina Rules of Professional Conduct and the South Carolina Rules for Lawyer Disciplinary Enforcement 

Appellate Case No. 2015-002336

 

ORDER

The Commission on Lawyer Conduct and the Commission and Judicial Conduct have proposed a number of amendments to the Rules of Professional Conduct contained in Rule 407, SCACR; the Rules for Lawyer Disciplinary Enforcement contained in Rule 413, SCACR; and the Rules for Judicial Disciplinary Enforcement contained in Rule 502, SCACR.  The proposed changes would: (1) add specific language from decisions of this Court related to the assertion of retaining liens by attorneys; (2) require that lawyers admitted in other jurisdictions self-report discipline imposed by another jurisdiction, and amend the definition of the term "lawyer" within the Rules of Professional Conduct; (3) adopt a rule providing for the mandatory random audits of lawyer trust accounts; and (4) provide for the hiring of a presiding disciplinary judge to act as a hearing officer to preside over disciplinary and incapacity hearings.   

After careful consideration of the Commissions' proposed amendments, we decline to adopt the proposed changes requiring random audits of lawyer trust accounts and the hiring of a presiding disciplinary judge.  We agree to adopt modified versions of the Commissions' other proposed amendments, but decline to adopt the definition of a lawyer proposed by the Commissions.    

Accordingly, we amend Rules 1.16, 5.1, and 8.3, RPC, Rule 407, SCACR; and Rule 29, RLDE, Rule 413, SCACR, as set forth in the attachment to this Order.  These amendments are effectively immediately.    

Columbia, South Carolina
October 25, 2016

Comment 9 to Rule 1.16, RPC, Rule 407, SCACR, is amended to provide:

Assisting the Client upon Withdrawal

[9] Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law. See Rule 1.15; In re Tillman, 319 S.C. 461, 432 S.E.2d 283 (1995); In re Anonymous Member of South Carolina Bar, 287 S.C. 250, 335 S.E.2d 803 (1985). When permitted, a nonrefundable retainer still must comply with Rule 1.5 and not be unreasonable.

Comment 9 to Rule 5.1, RPC, Rule 407, SCACR, is amended to provide:

[9] Paragraph (d) expresses a principle of responsibility to the clients of the law firm. Where partners or lawyers with comparable authority reasonably believe a lawyer is suffering from a significant cognitive impairment, they have a duty to protect the interests of clients and ensure that the representation does not harm clients or result in a violation of these rules. See Rule 1.16(a). One mechanism for addressing concerns before matters must be taken to the Commission on Lawyer Conduct is found in Rule 428, SCACR. See also Rule 8.3(c) regarding the obligation to report a violation of the Rules of Professional Conduct when there is knowledge a violation has been committed as opposed to a belief that the lawyer may be suffering from an impairment of the lawyer's cognitive function.

Rule 8.3, RPC, Rule 407, SCACR, is amended to provide:

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 is disciplined or transferred to incapacity inactive status in another jurisdiction shall inform the Commission on Lawyer Conduct in writing within fifteen days of discipline or transfer. 

(c) 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.

(d) 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.

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

(f) 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, under some circumstances, that members of the profession report themselves to disciplinary authorities in order to protect the interests of the profession, the public, and the judicial process. Paragraphs (a) and (b) set forth the limited circumstances under which a lawyer is required to self-report. Any lawyer admitted to practice in South Carolina has a duty to self-report under paragraphs (a) and (b). The disciplinary procedures for handling matters giving rise to mandatory self-reports are set forth in Rules 17 and 29, RLDE, Rule 413, SCACR.

[2] 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 by another lawyer. 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 (d) modifies the model version by specifically including "honesty" and "trustworthiness" to parallel the requirement of paragraph (c).

[3] 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.

[4] 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 Office of Disciplinary Counsel 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.

[5] 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.

[6] Paragraph (f) 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 (c) and (d) 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 29(a), RLDE, Rule 413, SCACR, is amended to provide:

(a) Lawyers Disciplined or Transferred to Incapacity Inactive Status in Another Jurisdiction. Within fifteen days of being disciplined or transferred to incapacity inactive status in another jurisdiction, a lawyer admitted to practice in this state shall inform the Commission on Lawyer Conduct in writing of the discipline or transfer. Upon notification from any source that a lawyer within the jurisdiction of the Commission has been disciplined or transferred to incapacity inactive status in another jurisdiction, disciplinary counsel shall obtain a certified copy of the disciplinary order and file it with the Commission and the Supreme Court.