The Supreme Court of South Carolina

Re: Amendments to Rule 413, South Carolina Appellate Court Rules

Appellate Case No.	2014-000444
	2014-000445
	2014-000451
	2014-000452

ORDER

The Commission on Lawyer Conduct has proposed a number of amendments to the Rules for Lawyer Disciplinary Enforcement, which are contained in Rule 413, SCACR.  The amendments permit lawyers to permanently resign in lieu of discipline; adopt additional duties for lawyers following disbarment, suspension, or resignation; permit limited disclosure of the existence of a disciplinary complaint to Lawyers Helping Lawyers if the lawyer is in need of treatment for substance abuse or a mental health issue; and adopt procedures for handling grievances filed against disciplinary counsel or a lawyer member of disciplinary counsel's staff. 

Rule 413 is amended as set forth in the attachment to this Order.  The amendments are effective immediately.

Columbia, South Carolina
November 12, 2014

The following Rules for Lawyer Disciplinary Enforcement, contained in Rule 413, SCACR, are amended as provided below. 

Rule 4(f)(1), RLDE, is amended to provide as follows:

(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 or motion for permanent resignation in lieu of discipline, authorize formal charges, refer the matter to another agency, or dismiss the complaint;

Rule 12, RLDE, is amended to add paragraph (h), which provides as follows:

(h) Disclosure to Lawyers Helping Lawyers. Commission counsel, disciplinary counsel, or a member of the staff of the Commission or disciplinary counsel, may disclose the existence of a complaint to a representative of the South Carolina Bar Lawyers Helping Lawyers Committee regarding the lawyer's need for treatment for substance abuse or a mental health issue. Disclosure under this rule shall be limited to the existence of the complaint and the issue(s) of concern and shall not reveal the nature or details of the complaint unless such disclosure is necessary for the committee to proceed.

Rule 19, RLDE, is amended to add paragraph (e), which provides as follows:

(e) Complaints Against Disciplinary Counsel. If a complaint is filed against disciplinary counsel or a lawyer member of disciplinary counsel's staff, Commission counsel shall review the complaint. If the complaint does not allege professional misconduct, Commission counsel shall refer the matter to disciplinary counsel who will address it as an internal management issue. If the complaint alleges professional misconduct pursuant to these rules or the Rules of Professional Conduct, Commission counsel shall issue a notice of investigation in accordance with the procedures set forth in subsection (c)(1)(A) and (B) of this rule. Commission counsel shall refer the complaint and the response to an investigative panel. The investigative panel shall either dismiss the complaint or refer the matter for investigation to the Office of the Attorney General of South Carolina or a lawyer member of the Commission appointed by the chair. Upon completion of the investigation, the Office of the Attorney General or the lawyer member of the Commission shall report to the investigative panel and recommend dismissal, acceptance of an agreement for discipline by consent, or formal charges. An investigative panel may not impose a letter of caution or other confidential discipline upon disciplinary counsel or a lawyer member of disciplinary counsel's staff. The confidentiality and disclosure provisions of Rule 12 apply to the Office of the Attorney General with regard to complaints investigated pursuant to this rule.

Rule 27(h), RLDE, is amended to provide as follows:

(h) Notice of Decision. The Commission shall transmit notice of all public discipline imposed against a lawyer, transfers to and from incapacity inactive status, permanent resignations in lieu of discipline, and reinstatements to the National Discipline Data Bank maintained by the American Bar Association, the disciplinary enforcement agency of every other jurisdiction in which the lawyer is admitted, and the South Carolina Bar. The Commission shall transmit notice of a decision suspending or disbarring a lawyer, transferring a lawyer to incapacity inactive status, or ordering a lawyers' permanent resignation in lieu of discipline to the clerk of court in each county in which the lawyer maintained an office and the chief judge for administrative purposes having authority over any county in which the lawyer maintained an office. The Commission may also establish policies for giving notice of public discipline to other courts, agencies and organizations. The Commission shall not provide notice when an admonition is imposed.

Rule 30, RLDE, is amended to provide as follows:

RULE 30
DUTIES FOLLOWING DISBARMENT, SUSPENSION,
OR PERMANENT RESIGNATION

(a) Notice to Clients. A lawyer who is disbarred, suspended, or granted permanent resignation in lieu of discipline shall promptly notify, or cause to be notified, by registered or certified mail, return receipt requested, all clients being represented in a pending matter. The notice shall advise the client of the disbarment, suspension, or permanent resignation in lieu of discipline and of the consequent inability to act as an attorney. The notice shall also advise the client to seek legal advice of the client's own choice elsewhere and, if the matter involves pending litigation or administrative proceedings, of the desirability of the prompt substitution of another lawyer to act as the client's attorney in the proceedings.

(b) Notice to Other Counsel. A lawyer who is disbarred, suspended, or granted permanent resignation in lieu of discipline shall promptly notify, or cause to be notified, any co-counsel in any pending matter and any opposing counsel in any pending matter, or in the absence of opposing counsel, the adverse parties, of the disbarment, suspension, or permanent resignation in lieu of discipline and of the consequent inability of the lawyer to act as an attorney. The notice shall state the place of residence of the client of the disbarred, suspended, or permanently resigned lawyer.

(c) Withdrawal From Representation. In the event the client does not obtain substitute counsel within 10 days of the date of the notice, it shall be the responsibility of the disbarred, suspended, or permanently resigned lawyer to move in the court or agency in which the proceedings are pending for leave to withdraw.

(d) Refund of Fees and Return of Property. A disbarred, suspended, or permanently resigned lawyer shall promptly refund any part of any fees paid in advance that has not been earned. The lawyer shall also deliver to all clients being represented in pending matters any papers or other property to which they are entitled and shall notify them and any counsel representing them of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers or other property. If a receiver or an attorney to assist the receiver has been appointed under Rule 31, the return of client fees and property shall be accomplished by the receiver or the attorney appointed to assist the receiver.

(e) Duty to Maintain Records. The lawyer shall keep and maintain records showing compliance with the requirements of this rule, and shall make these records available to disciplinary counsel upon request.

(f) Surrender of Certificate. A lawyer who has been disbarred or granted permanent resignation in lieu of discipline shall, within fifteen (15) days after the order of disbarment or permanent resignation in lieu of discipline, surrender his or her certificate of admission to practice law in this state to the Clerk of the Supreme Court. The certificate shall be destroyed by the Clerk.

(g) Duty to Cooperate with Receiver. If a receiver or an attorney to assist the receiver has been appointed under Rule 31, a lawyer who has been disbarred, suspended, or granted permanent resignation in lieu of discipline shall cooperate with the receiver and any attorney appointed to assist the receiver and shall comply with requests to take specific action regarding the client files and accounts.

(h) Remove Indicia of the Practice of Law. A lawyer who has been disbarred, suspended, or granted permanent resignation in lieu of discipline shall promptly remove any indicia of the practice of law that the lawyer is capable of removing or deleting, including signage, letterhead, website(s), Internet profiles, email address(es), and any form of advertising or solicitation created or maintained by the lawyer. 

(i) Affidavit to Be Filed. Within 15 days after the effective date of the disbarment, suspension, or permanent resignation in lieu of discipline, the lawyer shall file and serve an affidavit with the Supreme Court, disciplinary counsel, and the Commission on Lawyer Conduct showing:

(1) Compliance with the provisions of the order of disbarment, suspension, or permanent resignation in lieu of discipline and this rule;

(2) All other state, federal and administrative jurisdictions to which the lawyer is admitted to practice; and

(3) Residence or other addresses where communications may thereafter be directed.

(j) Failure to Comply. A disbarred, suspended, or permanently resigned lawyer who fails to comply with the requirements of this rule may be held in criminal or civil contempt by the Supreme Court. Further, if a disbarred or suspended lawyer fails to timely surrender the certificate to practice law or to timely file the affidavit as required by sections (f) and (i) of this rule, the time before the disbarred or suspended lawyer is eligible to seek reinstatement under Rules 32 or 33, RLDE, shall not begin to run until the certificate and affidavit are actually received by the Clerk of the Supreme Court.

Rule 34, RLDE, is amended to provide as follows:

RULE 34
EMPLOYMENT OF LAWYERS WHO ARE DISBARRED, SUSPENDED, TRANSFERRED TO INCAPACITY INACTIVE STATUS, OR PERMANENTLY RESIGNED

A lawyer who is disbarred, suspended, transferred to incapacity inactive status, or permanently resigned shall not be employed directly or indirectly by a member of the South Carolina Bar as a paralegal, investigator or in any other capacity connected with the practice of law, nor be employed directly or indirectly in the State of South Carolina as a paralegal, investigator or in any capacity connected with the practice of law by a lawyer licensed in any other jurisdiction. Additionally, a lawyer who is disbarred, suspended, transferred to incapacity inactive status, or permanently resigned shall not serve as an arbitrator, mediator or third party neutral in any Alternative Dispute Resolution proceeding in this state nor shall any member of the South Carolina Bar directly or indirectly employ a lawyer who has been disbarred, suspended, transferred to incapacity inactive status, or permanently resigned as an arbitrator, mediator or third party neutral in any Alternative Dispute Resolution proceeding. Any member of the South Carolina Bar who, with knowledge that the person is disbarred, suspended, transferred to incapacity inactive status, or permanently resigned, employs such person in a manner prohibited by this rule shall be subject to discipline under these rules. A lawyer who is disbarred, suspended, transferred to incapacity inactive status, or permanently resigned who violates this rule shall be deemed in contempt of the Supreme Court and may be punished accordingly.

Rule 35, RLDE is adopted by the Court and provides as follows:

RULE 35
RESIGNATION IN LIEU OF DISCIPLINE

(a) Motion for Resignation in Lieu of Discipline.  A lawyer who desires not to contest or defend against allegations of misconduct in connection with a pending disciplinary investigation or formal proceedings may file a motion for permission to permanently resign in lieu of discipline by delivering to the Commission and serving on disciplinary counsel an affidavit that includes the following:

(1) A statement that the permanent resignation in lieu of discipline is freely and voluntarily rendered and that the lawyer is not being subjected to coercion or duress;

(2) A statement that the lawyer is aware that there is a pending investigation or formal charges involving allegations of misconduct, that the lawyer acknowledges that disciplinary counsel can prove those allegations, and that the lawyer desires not to contest or defend against those allegations;

(3) A statement that the lawyer is fully aware that the resignation, if granted, will be permanent and that the lawyer will never be eligible to apply, and will not be considered, for admission or reinstatement to the practice of law or for any limited practice of law in South Carolina;

(4) Identification of all other jurisdictions in which the lawyer is admitted to practice law and a statement that the lawyer will promptly seek to resign permanently from those jurisdictions if the motion is granted;

(5) A statement from Commission counsel that all costs incurred by the Commission and the Office of Disciplinary Counsel in connection with the pending disciplinary proceedings have been paid in full; and

(6) A statement from the Lawyers' Fund for Client Protection that all payments made on behalf of the lawyer have been reimbursed to the Fund.

(b) Disciplinary Counsel's Return and Lawyer's Opportunity to Withdraw. Disciplinary counsel shall file a return within thirty days of service including (1) a detailed statement of the allegations of misconduct giving rise to the proceedings; (2) disciplinary counsel's concurrence with or opposition to the motion for permanent resignation based on the best interests of the public and the profession; and (3) proof of service on the lawyer. The lawyer may withdraw the motion within ten days after service of disciplinary counsel's return. If the lawyer does not timely file a withdrawal of the motion, the detailed statement of the allegations shall be deemed to have been conclusively established for the purpose of consideration of the motion. 

(c) Submission to the Investigative Panel. An investigative panel of the Commission shall consider the lawyer's affidavit and disciplinary counsel's return and shall then file with the Supreme Court its recommendation regarding the lawyer's motion. 

(d) Action by the Supreme Court. The Supreme Court shall either reject the motion or issue a decision ordering the lawyer's permanent resignation.  If the motion for permanent resignation is rejected by the Supreme Court, the proceedings shall continue. The rejected affidavit and disciplinary counsel's return shall be withdrawn, shall remain confidential, and shall not be used against the lawyer in any further proceedings. If the motion for permanent resignation is granted by the Supreme Court, the lawyer's motion and affidavit, the return of disciplinary counsel, and the recommendation of the investigative panel shall be public. Theorder granting the request shall be published.

(e) Effect of Filing on the Proceedings. The filing of a motion for permanent resignation in lieu of discipline does not, without the consent of disciplinary counsel, serve to delay or suspend any pending disciplinary investigation or formal proceedings.