The Supreme Court of South Carolina
Re: Amendments to the South Carolina Appellate Court Rules
Appellate Case No. 2017-001105
ORDER
On behalf of the Commission on Lawyer Conduct and the Commission on Judicial Conduct, the Office of Commission Counsel has submitted a number of proposed rule amendments to various South Carolina Appellate Court Rules. The proposed amendments adopt debarment as a formal sanction and prohibit debarred lawyers from advertising or engaging in the practice of law in South Carolina. We agree to adopt the proposed amendments, with some modifications to the Commissions' proposed definition of debarment.
Pursuant to Article V, Section 4 of the South Carolina Constitution, Rules 407, 413, and 418 of the South Carolina Appellate Court Rules are amended as set forth in the attachment to this Order. The amendments are effective immediately.
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s/Donald W. Beatty C.J. s/John W. Kittredge J. s/Kaye G. Hearn J. s/John Cannon Few J. s/George C. James, Jr. J. |
Columbia, South Carolina
January 17, 2018
Rule 2(g) of the Rules for Lawyer Disciplinary Enforcement, contained in Rule 413 of the South Carolina Appellate Court Rules, is amended to provide as set forth below. Additionally, current paragraphs (g) through (bb) of Rule 2 are renumbered as paragraphs (h) through (cc), and Rule 16(c) of the Rules for Lawyer Disciplinary Enforcement is amended to correct a reference as being to Rule 2(bb):
(g) Debarment: a sanction imposed on an unlicensed lawyer by the Supreme Court. See Rule 7(b)(9). Debarment is a prohibition on practicing law or seeking any form of admission to practice law in South Carolina, including pro hac vice admission, without first obtaining an order from the Supreme Court. While the debarment remains in effect, the lawyer shall not engage in the practice of law in South Carolina (including any conduct that would otherwise be permitted under Rule 5.5 of the South Carolina Rules of Professional Conduct contained in Rule 407, SCACR, or Rule 426, SCACR); shall not be eligible to be admitted to practice law in South Carolina (including pro hac vice admission or any limited certificate to practice law), to be a foreign legal consultant under Rule 424, SCACR, or to be a certified paralegal under Rule 429, SCACR; and shall not advertise or otherwise solicit to provide legal services in South Carolina or engage in any of the form of advertising and solicitation listed in Rule 418(b), SCACR.
Rule 7(b) of the Rules for Lawyer Disciplinary Enforcement, contained in Rule 413 of the South Carolina Appellate Court Rules, is amended to provide:
(b) Sanctions. Misconduct shall be grounds for one or more of the following sanctions:
(1) disbarment;
(2) suspension for a definite period from the office of attorney at law. The period of the suspension shall not exceed 3 years and shall be set by the Supreme Court;
(3) public reprimand;
(4) admonition, provided that an admonition may be used in subsequent proceedings as evidence of prior misconduct solely upon the issue of sanction to be imposed;
(5) restitution to persons financially injured, repayment of unearned or inequitable attorney's fees or costs advanced by the client, and reimbursement to the Lawyers' Fund for Client Protection;
(6) assessment of the costs of the proceedings, including the cost of hearings, investigations, prosecution, service of process and court reporter services;
(7) assessment of a fine;
(8) limitations on the nature and extent of the lawyer's future practice;
(9) debarment;
(10) any other sanction or requirement as the Supreme Court may determine is appropriate.
Rule 34(a) of the Rules for Lawyer Disciplinary Enforcement, contained in Rule 413 of the South Carolina Appellate Court Rules, is amended to provide:
RULE 34
EMPLOYMENT OF LAWYERS WHO ARE DEBARRED, DISBARRED, SUSPENDED, TRANSFERRED TO INCAPACITY INACTIVE STATUS, OR PERMANENTLY RESIGNED IN LIEU OF DISCIPLINE
(a) General Prohibition on Employment. Except as provided in paragraph (b), below, a lawyer who is debarred, disbarred, suspended, transferred to incapacity inactive status, or permanently resigned in lieu of discipline 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 debarred, disbarred, suspended, transferred to incapacity inactive status, or permanently resigned in lieu of discipline 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 debarred, disbarred, suspended, transferred to incapacity inactive status, or permanently resigned in lieu of discipline 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 debarred, disbarred, suspended, transferred to incapacity inactive status, or permanently resigned in lieu of discipline, employs such person in a manner prohibited by paragraph (a) of this rule shall be subject to discipline under these rules. A lawyer who is debarred, disbarred, suspended, transferred to incapacity inactive status, or permanently resigned in lieu of discipline who violates paragraph (a) of this rule shall be deemed in contempt of the Supreme Court and may be punished accordingly.
Rule 5.5(c) and (d) of the South Carolina Rules of Professional Conduct, which is found in Rule 407 of the South Carolina Appellate Court Rules, is amended to provide:
(c) A lawyer admitted in another United States jurisdiction, and not debarred, disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's representation of an existing client in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
(4) are not within paragraph (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer's representation of an existing client in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction, and not debarred, disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:
(1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.
Comment 5 and Comment 15 to Rule 5.5 of the South Carolina Rules of Professional Conduct, which is found in Rule 407 of the South Carolina Appellate Court Rules, are amended to provide:
[5] There are occasions in which a lawyer admitted to practice in another United States jurisdiction, and not debarred, disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction under circumstances that do not create an unreasonable risk to the interests of their clients, the public or the courts. Paragraph (c) identifies four such circumstances. The fact that conduct is not so identified does not imply that the conduct is or is not authorized. With the exception of paragraphs (d)(1) and (d)(2), the Rule does not authorize a lawyer to establish an office or other systematic and continuous presence in this jurisdiction without being admitted to practice generally here.
. . .
[15] Paragraph (d) identifies two circumstances in which a lawyer who is admitted to practice in another United States jurisdiction, and is not debarred, disbarred or suspended from practice in any jurisdiction, may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law as well as provide legal services on a temporary basis. Except as provided in paragraphs (d)(1) and (d)(2), a lawyer who is admitted to practice law in another jurisdiction and who establishes an office or other systematic or continuous presence in this jurisdiction must become admitted to practice law generally in this jurisdiction.
Rule 418 of the South Carolina Appellate Court Rules is amended to add paragraph (f), which provides:
(f) Debarred Lawyer. An unlicensed lawyer who has been debarred in South Carolina pursuant to Rule 7(b)(9), RLDE, is prohibited from advertising or solicitation in South Carolina. See Rule 2(g), RLDE.