RULE 12
ACCESS TO DISCIPLINARY INFORMATION

(a) General Rule. Except as otherwise provided in these rules or ordered by the Supreme Court, the members of the Commission, the staff of the Commission, disciplinary counsel, the staff of disciplinary counsel, the members of the Supreme Court and the staff of the Supreme Court shall not in any way reveal the existence of the complaint, while the matter remains confidential, except to persons directly involved in the matter and then only to the extent necessary for a proper disposition of the matter. A violation of this provision may be punished as a contempt of the Supreme Court.

(b) When Misconduct Proceedings Become Public. When formal charges are filed regarding allegations of misconduct, the formal charges, any answer, and all other documents related to the proceedings that were filed with or issued by the Commission following the filing of the formal charges shall become public 30 days after the filing of the answer or, if no answer is filed, 30 days after the expiration of the time to answer under Rule 23. Thereafter, except as otherwise provided by these rules or the Supreme Court, all subsequent records and proceedings relating to the misconduct allegations shall be open to the public inclusive of a letter of caution or admonition issued after the filing of formal charges. If allegations of incapacity are raised during the misconduct proceedings, all records, information, and proceedings relating to these allegations shall be held confidential.

(c) Permissive Disclosure by Commission. The Commission may, however, disclose information, or direct disciplinary counsel to disclose information, at any stage of the proceedings:

(1) when the chair, vice-chair or a panel of the Commission has determined that there is a need to notify another person to protect that person or to notify a government agency in order to protect the public or the administration of justice;

(2) to appropriate law enforcement officials when the chair, vice-chair or a panel of the Commission determines that it is in possession of reliable information indicating that a person has violated the criminal laws of this State, any other state, the District of Columbia, or the United States;

(3) upon waiver in writing by the lawyer;

(4) to persons from whom and entities from which it appears that a lawyer has misappropriated monies or other property when the chair or vice-chair or a panel of the Commission has determined that the disclosure of the information will tend to prevent further misappropriation or likely facilitate restitution, recovery, or compensation from the Lawyers' Fund for Client Protection, insurance coverage, title insurance, or other sources; or,

(5) to the appropriate disciplinary authority in any jurisdiction in which a lawyer is admitted to practice law or has applied for admission to practice law concerning a matter where there is evidence the lawyer committed misconduct under lawyer or judicial disciplinary rules of that jurisdiction or where a lawyer receives any sanction under Rule 7(b).

(d) Disclosure Necessary for Withdrawal as Counsel. When it is necessary to obtain the permission of a tribunal to withdraw from representation, a lawyer may reveal the fact that the client filed a complaint with disciplinary counsel to help establish good cause for withdrawal. If the motion to be relieved includes a reference to the existence of a complaint which is confidential under this rule, the lawyer may elect to give opposing counsel notice of the motion only, without revealing the existence of the complaint. If the lawyer's motion to be relieved is accompanied by a request that the records relating to the motion be sealed, the tribunal shall take steps to prevent disclosure of the existence of the complaint to any other person. After deciding the motion to be relieved, the tribunal shall insure that either the record is sealed or that all references to the complaint are deleted from the record available to the public. No members of the tribunal or its staff who learn of the existence of the complaint shall reveal that fact to any other person.

(e) Protective Orders. In order to protect the interests of a complainant, witness, third party, or respondent, the chair of the hearing panel may, upon application of any person and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted in a manner to preserve the confidentiality of the information that is the subject of the application.

(f) Work Product and Deliberations. Disciplinary counsel's work product, Commission deliberations, and records of the Commission's deliberations shall not be disclosed.

(g) Permissive disclosure by the parties. Either party may disclose in proceedings before a hearing panel statements and other evidence, gathered prior to the matter becoming public after the filing of formal charges, that were subject to discovery under Rule 25 to the extent admissible under South Carolina Rules of Civil Procedure or South Carolina Rules of Evidence.

(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.

Last amended by Order dated October 23, 2019.