SCREENING AND INVESTIGATION
(a) Screening. Disciplinary counsel shall evaluate all information coming to disciplinary counsel's attention by complaint or from other sources that alleges lawyer misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings due to a physical or mental condition. If the information would not constitute misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings if it were true, disciplinary counsel shall dismiss the complaint or, if appropriate, refer the matter to another agency. Disciplinary counsel shall notify the complainant of the disposition of the complaint. Disciplinary counsel is not required to notify the lawyer of the complaint or disposition but may release information about the complaint to the lawyer upon written request. If the information raises allegations that would constitute lawyer misconduct, incapacity, or the inability to participate in a disciplinary investigation or assist in the defense of formal proceedings if true, disciplinary counsel shall conduct an investigation.
(b) Investigation. Disciplinary counsel shall conduct all investigations. Disciplinary counsel may issue subpoenas pursuant to Rule 15(b), conduct interviews and examine evidence to determine whether grounds exist to believe the allegations of complaints. Disciplinary counsel shall issue a notice of investigation to the lawyer with a copy of the complaint or information received requesting that the lawyer file a response to the allegations in the notice; provided, however, that disciplinary counsel may seek permission of the chair or vice-chair to dispense with the requirement to make this request or to dispense with the requirement to provide the lawyer with a copy of the complaint or information received. The lawyer shall file a written response within 15 days of notice to do so from disciplinary counsel. The written response must include the lawyer's verification that it is complete and accurate to the best of the lawyer's knowledge and belief.
(c) Requirements of Notice of Investigation.
(1) When issuing notice of investigation pursuant to Rule 19(b), disciplinary counsel shall give the following notice to the lawyer:
(A) a specific statement of the allegations being investigated and the rules or other ethical standards allegedly violated, with the provision that the investigation can be expanded if deemed appropriate by disciplinary counsel;
(B) the lawyer's duty to respond pursuant to Rule 19(b);
(C) the lawyer's opportunity to meet with disciplinary counsel pursuant to Rule 19(c)(3); and,
(D) the name of the complainant unless the investigative panel determines that there is good cause to withhold that information.
(2) The investigative panel may defer the giving of notice but, when notice is deferred, disciplinary counsel must give notice to the lawyer before making a recommendation as to a disposition.
(3) Before disciplinary counsel or the investigative panel determines its disposition of the complaint under Rule 19(d), either disciplinary counsel or the lawyer may request that the lawyer appear before disciplinary counsel to respond to questions from disciplinary counsel. The appearance shall be on the record at the date, time, and place scheduled by disciplinary counsel, and the testimony shall be under oath or affirmation. The appearance shall be conducted by disciplinary counsel in the manner disciplinary counsel deems appropriate. If disciplinary counsel requests the lawyer's appearance, disciplinary counsel must give the lawyer 20 days' notice.
(4) Any person making an appearance and answering questions pursuant to Rule 19 shall be entitled to obtain the official transcript of his or her testimony from the Commission court reporter upon paying the subscribed charges unless otherwise directed by an investigative panel for good cause shown. The lawyer may arrange to have a separate stenographic record and transcription made at the lawyer's own expense.
(d) Disposition After Investigation.
(1) Upon completion of the investigation, if disciplinary counsel believes that no misconduct has been committed, and a written caution is not appropriate to conclude the matter, disciplinary counsel may dismiss the complaint.
(2) If disciplinary counsel believes that no misconduct has been committed, but a written caution or warning is appropriate to conclude the matter, disciplinary counsel may issue a letter of caution.
(3) If disciplinary counsel believes there is evidence supporting the allegations against a lawyer, disciplinary counsel may:
(A) propose an agreement for discipline by consent to the lawyer pursuant to Rule 21;
(B) recommend to an investigative panel that the matter be concluded with a letter of caution or a confidential admonition; or,
(C) recommend to an investigative panel that formal charges be filed.
(4) The investigative panel may adopt, reject or modify the recommendations of disciplinary counsel.
(A) If the investigative panel finds no violation or a violation pursuant to Rule 7 for which the imposition of a sanction is not warranted, it may dismiss or issue a letter of caution.
(B) If the investigative panel finds that there is reasonable cause to believe the lawyer committed misconduct for which the imposition of a sanction is warranted, it may accept an agreement for discipline by consent pursuant to Rule 21; it may execute a deferred discipline agreement; it may admonish the lawyer pursuant to the provisions of Rule 19(d)(5) or, it may direct disciplinary counsel to file formal charges.
(C) If the investigative panel finds that the matter should not be dismissed, but it is either impossible or impractical to proceed with the matter because it appears that the lawyer is deceased, disappeared, incarcerated, physically or mentally incapacitated, disbarred, or suspended from the practice of law, or for other good cause, the panel may designate the matter closed but not dismissed. If the lawyer files a written objection with the Commission and serves a copy of that objection on disciplinary counsel within 10 days of service of notice that the matter was closed, but not dismissed, the matter shall be deemed re-opened and in the investigation phase. Any objection need not contain any grounds for objecting. Before a matter can be re-opened after being closed, but not dismissed, an investigative panel of the Commission must make a finding that there has been a change in the circumstances that were the basis for the matter to be closed, but not dismissed, or that there is other good cause for it to be re-opened. Before a motion can be considered by an investigative panel of the Commission to re-open a matter that has been previously closed, but not dismissed, disciplinary counsel shall serve a copy of the motion to do so containing the grounds to re-open on the lawyer and then the lawyer shall have 10 days to respond thereto. Disciplinary counsel shall notify both the lawyer and the complainant when a matter is closed, but not dismissed, and when the matter is re-opened. If the panel declines to re-open the matter, disciplinary counsel shall so advise the lawyer.
(5) When the investigative panel finds reasonable cause to conclude that the lawyer has committed misconduct, but finds that public discipline is not warranted, it may issue notice to the lawyer that it intends to impose a confidential admonition as a final disposition of the matter(s). Notice to the lawyer shall include a copy of the confidential admonition and shall be served on the lawyer in accordance with Rule 14(c). The notice of intent shall state the lawyer's right to object and that any such objection need not include any grounds therefor. The confidential admonition shall thereafter be imposed unless the lawyer both files with the Commission and serves on disciplinary counsel a written objection within 30 days of mailing of the notice. If the lawyer objects to the imposition of the confidential admonition in conformity with the requirements of this rule, disciplinary counsel shall file formal charges.
(e) Complaints Against Disciplinary Counsel. Complaints against disciplinary counsel or a lawyer member of disciplinary counsel's staff shall be filed with the Commission on Lawyer Conduct for review by Commission counsel. If a complaint is filed with disciplinary counsel and is against disciplinary counsel or a lawyer member of disciplinary counsel's staff, disciplinary counsel shall immediately forward the complaint to Commission counsel. 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.
Last amended by Order dated October 23, 2019.