RULE 19. 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 judicial 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 judge of the complaint or disposition but may release information about the complaint to the judge upon written request. If the information raises allegations that would constitute judicial 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 and serve a notice of investigation to the judge with a copy of the complaint or information received requesting that the judge serve a written response to the allegations in the notice on disciplinary counsel; 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 serve the judge with a copy of the complaint or information received. Disciplinary counsel shall serve the notice of investigation by e-mail and U.S. mail to the primary e-mail address and physical address the judge has designated in the Attorney Information System. See Rule 410, SCACR. If the judge is not a member of the South Carolina Bar, the notice shall be sent to the e-mail address and physical address the judge supplied to South Carolina Court Administration. The judge shall serve a written response on disciplinary counsel within 15 days of service of the notice of investigation. The written response must include the judge's verification that it is complete and accurate to the best of the judge'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 judge:
(A) a specific statement of the allegations being investigated and the canons or other ethical standards allegedly violated, with the provision that the investigation can be expanded if deemed appropriate by disciplinary counsel;
(B) the judge's duty to respond pursuant to Rule 19(b);
(C) the judge'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. Disciplinary counsel shall advise the judge if disciplinary's counsel's written statement of the allegations constitutes the complaint pursuant to Rule 2(e).
(2) The investigative panel may defer the giving of notice but, when notice is deferred, disciplinary counsel must give notice to the judge 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 judge may request that the judge 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 judge's appearance, disciplinary counsel must give the judge 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 judge may arrange to have a separate stenographic record and transcription made at the judge's own expense.
(d) Disposition After Investigation.
(1) Upon completion of investigation, if disciplinary counsel believes that no misconduct has been committed, and a written caution or warning 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 judge, disciplinary counsel may:
(A) propose an agreement for discipline by consent to the judge 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 judge 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 judge 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 judge is deceased, disappeared, incarcerated, or physically or mentally incapacitated, or for other good cause, the panel may designate the matter closed but not dismissed. If the judge 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 judge and then the judge shall have 10 days to respond thereto. Disciplinary counsel shall notify both the judge 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 judge.
(5) When the investigative panel finds reasonable cause to conclude that the judge has committed misconduct, but finds that public discipline is not warranted, it may issue notice to the judge that it intends to impose a confidential admonition as a final disposition of the matter(s). Notice to the judge shall include a copy of the confidential admonition and shall be served on the judge in accordance with Rule 14(c). The notice of intent shall state the judge’s right to object and that any such objection need not include any grounds therefor. The confidential admonition shall thereafter be imposed unless the judge both files with the Commission and serves on disciplinary counsel a written objection within 30 days of mailing of the notice. If the judge objects to the imposition of the confidential admonition in conformity with the requirements of this rule, disciplinary counsel shall file formal charges.
Last amended by Order dated September 28, 2022.