The Supreme Court of South Carolina
Re: Amendments to Rules 407, 413, and 502, South Carolina Appellate Court Rules
Appellate Case No. 2022-000837
ORDER
Pursuant to Article V, Section 4 of the South Carolina Constitution, we amend the Rules for Lawyer Disciplinary Enforcement (RLDE) and the Rules for Judicial Disciplinary Enforcement (RJDE), which are found in Rule 413 and Rule 502 of the South Carolina Appellate Court Rules; and the Rules of Professional Conduct (RPC), which are found in Rule 407 of the South Carolina Appellate Court Rules.
The amendments to the RPC correct a scrivener's error in one rule and amend a comment to remind lawyers who sell a law practice that they have a duty to securely store client files.
The amendments to the RLDE and the RJDE: (1) provide a means for the electronic service and filing of documents in lawyer and judicial disciplinary proceedings during the investigative process and when matters are pending before the Commissions on Lawyer and Judicial Conduct and the Supreme Court; (2) incorporate the provision of Rule 221, SCACR, requiring that any petition for rehearing in a disciplinary matter be received by the Supreme Court within 15 days of the filing of a decision or order; (3) clarify the process of issuance, service, and objection to or modification of subpoenas in disciplinary cases; (4) alter and clarify the time that initial and pre-hearing disclosures and discovery must be completed in cases involving formal charges; (5) clarify the process for submission of agreements to panels and the Supreme Court; (6) require that disciplinary counsel serve a notice of investigation on a lawyer or judge by U.S. mail and e-mail; (7) eliminate the requirement that a public reprimand be served on a lawyer or judge by certified mail; (8) permit Commission counsel to petition this Court to appoint the receiver in cases where there are no issues involving lawyer discipline.
The amendments, which are contained in the attachment to this Order, are effective immediately. Furthermore, based on the adoption of electronic filing and service procedures within these rules, the June 15, 2020 order of the Chief Justice titled RE: Amended Supplemental Guidance Regarding Lawyer and Judicial Disciplinary Matters During the Coronavirus Emergency, is hereby rescinded, effective immediately.
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
September 28, 2022
Rule 407, SCACR:
(1) Rule 1.8(m), RPC, is amended to substitute "affect" for "effect."
(2) Comment 10 to Rule 1.17, RPC, is amended to provide:
[10] Lawyers participating in the sale of a law practice are subject to the ethical standards applicable to involving another lawyer in the representation of a client. These include, for example, the seller's obligation to exercise competence in identifying a purchaser qualified to assume the practice and the purchaser's obligation to undertake the representation competently (see Rule 1.1); the obligation to avoid disqualifying conflicts, and to secure the client's informed consent for those conflicts that can be agreed to (see Rule 1.7 regarding conflicts and Rule 1.0(g) for the definition of informed consent); the obligation to protect information relating to the representation (see Rules 1.6 and 1.9); and the obligation to securely store a client's file (see Rule 1.15(i)).
Rule 413, SCACR:
(1) Rule 2(w), RLDE is amended to provide: "(w) Public Reprimand: a reprimand by the Supreme Court in the form of a written, published decision."
(2) Rules 4(d) and 5(c), RLDE, are amended to change the references to the Office of Finance and Personnel to the Office of Fiscal Services, and to change the references to the Judicial Department to the Judicial Branch.
(3) Rule 14, RLDE, is amended to provide:
RULE 14
TIME, SERVICE AND FILING
. . .
(c) Service.
(1) Formal Charges; Subpoenas. Service upon the lawyer of formal charges or a subpoena in any disciplinary or incapacity proceedings shall be made by personal service upon the lawyer or the lawyer's counsel by any person authorized by the chair of the Commission, or by registered or certified mail, return receipt requested, to the lawyer's last known address. If service cannot be so made, service shall be deemed complete when deposited in the U.S. Mail, provided the formal charges or the subpoena were sent by registered or certified mail, return receipt requested, to the primary address the lawyer provided in the Attorney Information System under Rule 410, SCACR, and to the lawyer's last known address, if those addresses differ. A subpoena directed to a non-party shall be served as provided in the South Carolina Rules of Civil Procedure.
(2) Service of Other Documents. Unless otherwise provided in these rules, service of all other documents shall be made in the manner provided by Rule 262, SCACR, and any order of the Supreme Court specifying the proper means of electronic service under the South Carolina Appellate Court Rules.(3) Electronic Service on Disciplinary Counsel. In addition to the methods of service available under paragraph (c)(2) of this rule, disciplinary counsel may be served by one of the following methods of electronic service.
(A) Disciplinary counsel may be served by e-mail. The address for service on the Office of Disciplinary Counsel is ODCmail@sccourts.org. This method may not be suitable for large documents, and if it becomes necessary to split a document into multiple parts, the e-mail shall identify the part being sent. A document served by this method must be in an Adobe Acrobat portable document format (.pdf).
(B) Lawyers may serve disciplinary counsel using OneDrive for Business. Lawyers are strongly encouraged to use this method for serving large volumes of materials. More information about this method, including registration and other instructions, is available upon request by e-mailing ODCmail@sccourts.org.
(C) Disciplinary counsel may be served by an electronically transmitted facsimile copy. The fax number for disciplinary counsel is (803) 734-1964. While this method is well suited for relatively small documents, depending primarily upon the limitations of the sending fax machine, it may not be possible to send large documents in a single transmission. If it becomes necessary to split a document into multiple parts to make the fax transmission, a separate cover sheet should be used on each part to identify the document.
(d) Filing. When these rules require the filing of a document with the Commission or the Supreme Court, the filing may be accomplished by:
(1) Delivering the document to the Commission or the clerk of the Supreme Court;
(2) Depositing the document in the U.S. mail, properly addressed to the Commission or the clerk of the Supreme Court, with sufficient first class postage attached; or
(3) One of the following electronic methods of filing:
(A) Electronic Filing by Lawyers with the Supreme Court. Lawyers who are licensed to practice law in South Carolina may utilize OneDrive for Business to electronically submit documents for filing with the Supreme Court, and lawyers are strongly encouraged to use this method of filing. More information about this method, including registration and filing instructions, is available in the Attorney Information System (https://ais.sccourts.org/AIS) under the tab "Appellate Filings."
(B) Filing by E-Mail. Filings may be made by e-mail. For the Commission, the e-mail shall be sent to OCCmail@sccourts.org. For the Supreme Court, the e-mail shall be sent to supctfilings@sccourts.org. This method may not be suitable for large documents, and if it becomes necessary to split a document into multiple parts, the e-mail shall identify the part being sent (i.e., Record on Appeal, Part 1 of 4). A document filed by this method must be in Adobe Acrobat portable document format (.pdf). Filers shall not utilize any other file format or a file-sharing service when e-mailing documents for filing. The Commission or the Clerk of the Supreme Court may reject any document submitted by e-mail in a format other than .pdf or using a file-sharing service.
(C) Faxing Documents. A document may be filed by an electronically transmitted facsimile copy. The fax number for the Commission is (803) 734-0363. The fax number for the Supreme Court is (803) 734-1499. While this method is well suited for relatively small documents, depending primarily upon the limitations of the sending fax machine, it may not be possible to send large documents in a single transmission. If it becomes necessary to split a document into multiple parts to make the fax transmission, a separate cover sheet should be used on each part to identify the document. In the event the facsimile copy is not sufficiently legible, the Commission or the clerk of the Supreme Court may require the party to provide a copy by mail.
(e) Date of Filing. The date of filing shall be the date of delivery or the date of mailing if filed using one of the methods specified in (d)(1) or (2) of this rule. When filed using one of the electronic methods of filing specified in paragraph (d)(3) of this rule, a document transmitted and received by 11:59:59 p.m., Eastern Standard Time, shall be considered filed on that day. Any document filed with the Supreme Court or the Commission shall be accompanied by proof of service of such document on all other parties.
(4) Rule 27(f), RLDE, is amended to provide:
(f) Rehearing. A petition for rehearing must be received by the Supreme Court within 15 days after the filing of the decision or order in accordance with Rule 221, SCACR. No return to a petition for rehearing may be filed unless requested by the Supreme Court. Ordinarily, however, rehearing will not be granted in the absence of such a request.
(5) Rule 15(a)-(e), RLDE, is amended to provide:
RULE 15
OATHS; SUBPOENA POWER
(a) Oaths. Oaths and affirmations may be administered by any member of the Commission, disciplinary counsel, or any other person authorized by law to administer oaths and affirmations.
(b) Subpoenas for Investigation.
(1) Disciplinary counsel may compel by subpoena the attendance of the lawyer or witnesses and the production of pertinent books, papers, documents (whether in typed, printed, written, digital, electronic, or other format), and other tangible evidence for the purposes of investigation. Disciplinary counsel shall conduct any appearance in accordance the provisions of Rule 19(c)(3).
(2) In the investigation stage of the proceedings, a lawyer under investigation may request the issuance of subpoenas for specific witnesses or documents by making the request to the Commission. The Commission chair, vice-chair, or Commission counsel may direct disciplinary counsel to issue the subpoena(s). Disciplinary counsel shall provide the lawyer with copies of documents submitted in response to the subpoena(s). Disciplinary counsel shall conduct any appearance in accordance with the provisions of Rule 19(c)(3).
(c) Subpoenas for Deposition or Hearing. After formal charges are filed, either disciplinary counsel or respondent may compel by subpoena the attendance of witnesses and the production of pertinent books, papers, and documents at a deposition or hearing held under these rules.
(d) Enforcement of Subpoenas. The willful failure to comply with a subpoena issued under this rule may be punished as a contempt of the Supreme Court. Upon proper application, the Supreme Court may enforce the attendance and testimony of any witnesses and the production of any documents subpoenaed.
(e) Quashing or Modifying Subpoenas; Interlocutory Appeals Prohibited.
(1) Any attack on the validity of a subpoena shall be heard and determined by the chair or the vice chair of the Commission during an investigation, or by the chair of the hearing panel before which the matter is pending, who may enter an order granting or denying the relief or modifying the subpoena. A request for an extension of time to comply with a subpoena during an investigation shall be heard and determined by the chair or the vice-chair of the Commission.
(2) Any resulting order shall not be subject to an interlocutory appeal; instead these decisions must be challenged by filing objections or a brief following service of the hearing panel report pursuant to Rule 27(a).
. . . .
(6) Rule 25(a), (b), and (f), RLDE, is amended to provide:
RULE 25
DISCOVERY
(a) Initial Disclosure. Within 30 days of the service of an answer, disciplinary counsel and respondent shall exchange:
(1) the names and addresses of all persons known to have knowledge of the relevant facts;
(2) non-privileged evidence relevant to the formal charges;
(3) the names of expert witnesses expected to testify at the hearing and affidavits setting forth their opinions and the bases therefor; and,
(4) other material only upon good cause shown to the chair of the hearing panel.
Disciplinary counsel or the respondent may withhold such information only with permission of the chair of the hearing panel or the chair's designee, who shall authorize withholding of the information only for good cause shown, taking into consideration the materiality of the information possessed by the witness and the position the witness occupies in relation to the lawyer. The chair's review of the withholding request is to be in camera, but the party making the request must advise the opposing party of the request without disclosing the subject of the request.
(b) Pre-Hearing Disclosure. The chair of the hearing panel shall set a date for the exchange of witness lists and exhibits no later than 30 days prior to the scheduled hearing. Disciplinary counsel and respondent shall exchange exhibits to be presented at the hearing, names and addresses of witnesses to be called at the hearing, witness statements, and summaries of interviews with witnesses who will be called at the hearing (for purposes of this paragraph, a witness statement is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded). Copies of transcripts of testimony taken by a court reporter pursuant to Rule 15(b) or Rule 19(c) may be obtained by the parties from the court reporter at the expense of the requesting party and need not be made available to the requesting party by the opposing party unless not otherwise available or otherwise directed by the Commission under Rule 25(h).
. . .
(f) Completion of Discovery. All discovery shall be completed 30 days prior to the date of the scheduled hearing, unless the Commission permits otherwise.
. . . .
(7) Rule 21, RLDE, is amended to provide:
RULE 21
DISCIPLINE BY CONSENT
(a) Agreement. At any stage in the proceedings, the lawyer and disciplinary counsel may agree to the imposition of a stated sanction, a range of sanctions, or the issuance of a letter of caution in exchange for the lawyer's admission of any or all of the allegations of misconduct involved in the proceedings. If the agreement is entered into after the filing of the formal charges, the agreement shall admit or deny the allegations contained in the formal charges. If the agreement is entered into before the filing of the formal charges, the agreement shall contain the specific factual allegations which the lawyer admits he or she has committed and the applicable provisions of the Rules of Professional Conduct or other ethical or disciplinary provisions that the lawyer admits the lawyer has violated. The agreement shall be signed by disciplinary counsel, by the lawyer and, if the lawyer is represented by counsel, by the lawyer's counsel. The signature of the lawyer's counsel on the agreement shall indicate that counsel has advised the lawyer regarding the agreement and that counsel believes the lawyer is voluntarily entering into the agreement with a full understanding of the effect of the agreement. Together with any signed agreement, a lawyer may also submit to disciplinary counsel a sworn statement(s) or other documents, including affidavits by other persons, for the Commission and the Court to consider in mitigation.
(b) Affidavit of Consent. The lawyer shall also sign an affidavit stating that:
(1) the lawyer consents to the sanction(s) or letter of caution;
(2) the consent is voluntarily given; and
(3) the matters admitted in the agreement and the facts stated in the affidavit are true.
(c) Submission to Panel. Disciplinary counsel shall transmit the fully executed agreement, the affidavit of consent, and any documents submitted by the lawyer in mitigation to Commission counsel and also serve the lawyer with a copy. Commission counsel shall submit the agreement, affidavit of consent, and any documents submitted in mitigation to an investigative panel if formal charges have not been filed, or to a hearing panel if formal charges have been filed on any of the allegations. Provided, if formal charges have been filed but not heard, an investigative panel can consider the proposed agreement and affidavit if the parties both agree in writing. The panel shall either reject the agreement or submit the agreement, affidavit of consent, and any documents that were submitted in mitigation to the Supreme Court if it determines the agreement should be accepted. An investigative panel shall, however, finally approve or disapprove an agreement for an admonition, a deferred discipline agreement or a letter of caution and, if approved, shall impose the sanction or issue the letter of caution without submitting the matter to the Supreme Court.
(d) Action by Supreme Court. If the panel submits the matter to the Supreme Court, the Supreme Court shall either reject the agreement or issue a decision disciplining the lawyer, which shall be based on the agreement. The decision shall comply with the requirements of Rule 27(e).
(e) Effect of Rejection of Agreement. If an agreement is rejected by the panel or the Supreme Court, the proceedings shall continue. The rejected agreement, affidavit of consent, and any documents submitted in mitigation shall be withdrawn and shall not be used against the lawyer in any further proceedings.
(f) Confidentiality. The agreement, affidavit of consent, and any documents submitted in mitigation shall remain confidential until the Supreme Court enters a decision disciplining the lawyer, at which time the agreement, affidavit of consent, and any documents submitted in mitigation shall be available to the public. The agreement, affidavit of consent, and any documents submitted in mitigation shall not be available to the public at any time if the agreement is rejected, or if the submission of the agreement results in the imposition of an admonition, a deferred discipline agreement or a letter of caution by an investigative panel.
(g) Briefs, Additional Information, and Oral Arguments. The Supreme Court may require the parties to submit briefs and/or participate in oral arguments in connection with the agreement. The Supreme Court may also require the parties to submit additional information prior to taking action with respect to the agreement. Either the lawyer or disciplinary counsel may move before the Supreme Court for permission for the parties to file briefs, to have oral arguments, or both in connection with the agreement, but the Supreme Court, in its discretion, may take action on the agreement without briefs, without oral arguments, or without either, notwithstanding a request from one or both of the parties.
(8) Rule 19(b) and (c)(1), RLDE, is amended to provide:
(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 lawyer with a copy of the complaint or information received requesting that the lawyer 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 lawyer 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 lawyer has designated in the Attorney Information System. See Rule 410, SCACR. The lawyer shall serve a written response on disciplinary counsel within 15 days of service of the notice of investigation. 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. Disciplinary counsel shall advise the lawyer if disciplinary's counsel's written statement of the allegations constitutes the complaint pursuant to Rule 2(e).
. . . .
(9) Rule 31(c), RLDE, is amended to provide:
(c) Petition. If a lawyer has been transferred to incapacity inactive status, has disappeared or died, has been suspended or disbarred, or other sufficient reason exists and no partner, personal representative or other responsible party capable of conducting the lawyer's affairs is known to exist, disciplinary counsel shall petition the Supreme Court for an order of receivership appointing the receiver to inventory the files of the inactive, disappeared, deceased, suspended or disbarred lawyer and to take action as appropriate to protect the interests of the lawyer and the lawyer's clients. Commission counsel may petition the Supreme Court for the order of receivership in cases where there are no issues involving discipline. If the Supreme Court determines that a lawyer suffers from a physical or mental condition that adversely affects the lawyer's ability to practice law but decides that a transfer to incapacity inactive status is not warranted, it may appoint the receiver to protect clients' interests. The order of receivership shall be public.
Rule 502, SCACR:
(1) Rule 2(v), RJDE is amended to provide: "(v) Public Reprimand: a reprimand by the Supreme Court in the form of a written, published decision."
(2) Rules 4(d) and 5(c), RJDE, are amended to change the references to the Office of Finance and Personnel to the Office of Fiscal Services, and to change the references to the Judicial Department to the Judicial Branch.
(3) Rule 27(g), RJDE, is amended to change the reference to the Judicial Department to the Judicial Branch.
(4) Rule 14, RJDE, is amended to provide:
RULE 14. TIME, SERVICE AND FILING
. . .
(c) Service.
(1) Formal Charges; Subpoenas. Service upon the judge of formal charges or a subpoena in any disciplinary or incapacity proceedings shall be made by personal service upon the judge or the judge's counsel by any person authorized by the chair of the Commission, or by registered or certified mail, return receipt requested, to the judge's last known address. If service cannot be so made, service shall be deemed complete when deposited in the U.S. Mail, provided the formal charges or the subpoena were sent by registered or certified mail, return receipt requested, to the primary address the judge provided in the Attorney Information System under Rule 410, SCACR, and to the judge's last known address, if those addresses differ, or, if the judge is not a member of the South Carolina Bar, to the address the judge supplied to South Carolina Court Administration and to the judge's last known address, if those addresses differ. A subpoena directed to a non-party shall be served as provided in the South Carolina Rules of Civil Procedure.
(2) Service of Other Documents. Unless otherwise provided in these rules, service of all other documents shall be made in the manner provided by Rule 262, SCACR, and any order of the Supreme Court specifying the proper means of electronic service under the South Carolina Appellate Court Rules.
(3) Electronic Service on Disciplinary Counsel. In addition to the methods of service available under paragraph (c)(2) of this rule, disciplinary counsel may be served by one of the following methods of electronic service.
(A) Disciplinary counsel may be served by e-mail. The address for service on the Office of Disciplinary Counsel is ODCmail@sccourts.org. This method may not be suitable for large documents, and if it becomes necessary to split a document into multiple parts, the e-mail shall identify the part being sent. A document served by this method must be in an Adobe Acrobat portable document format (.pdf).
(B) Judges may serve disciplinary counsel using OneDrive for Business. Judges are strongly encouraged to use this method for serving large volumes of materials. More information about this method, including registration and other instructions, is available upon request by e-mailing ODCmail@sccourts.org.
(C) Disciplinary counsel may be served by an electronically transmitted facsimile copy. The fax number for disciplinary counsel is (803) 734-1964. While this method is well suited for relatively small documents, depending primarily upon the limitations of the sending fax machine, it may not be possible to send large documents in a single transmission. If it becomes necessary to split a document into multiple parts to make the fax transmission, a separate cover sheet should be used on each part to identify the document.
(d) Filing. When these rules require the filing of a document with the Commission or the Supreme Court, the filing may be accomplished by:
(e) Date of Filing. The date of filing shall be the date of delivery or the date of mailing if filed using one of the methods specified in (d)(1) or (2) of this rule. When filed using one of the electronic methods of filing specified in paragraph (d)(3) of this rule, a document transmitted and received by 11:59:59 p.m., Eastern Standard Time, shall be considered filed on that day. Any document filed with the Supreme Court or the Commission shall be accompanied by proof of service of such document on all other parties.(1) Delivering the document to the Commission or the clerk of the Supreme Court;
(2) Depositing the document in the U.S. mail, properly addressed to the Commission or the clerk of the Supreme Court, with sufficient first class postage attached; or
(3) One of the following electronic methods of filing:
(A) Electronic Filing by Lawyers with the Supreme Court. Lawyers who are licensed to practice law in South Carolina may utilize OneDrive for Business to electronically submit documents for filing with the Supreme Court, and lawyers are strongly encouraged to use this method of filing. More information about this method, including registration and filing instructions, is available in the Attorney Information System (https://ais.sccourts.org/AIS) under the tab "Appellate Filings."
(B) Filing by E-Mail. Filings may be made by e-mail. For the Commission, the e-mail shall be sent to OCCmail@sccourts.org. For the Supreme Court, the e-mail shall be sent to supctfilings@sccourts.org. This method may not be suitable for large documents, and if it becomes necessary to split a document into multiple parts, the e-mail shall identify the part being sent (i.e., Record on Appeal, Part 1 of 4). A document filed by this method must be in Adobe Acrobat portable document format (.pdf). Filers shall not utilize any other file format or a file-sharing service when e-mailing documents for filing. The Commission or the Clerk of the Supreme Court may reject any document submitted by e-mail in a format other than .pdf or using a file-sharing service.
(C) Faxing Documents. A document may be filed by an electronically transmitted facsimile copy. The fax number for the Commission is (803) 734-0363. The fax number for the Supreme Court is (803) 734-1499. While this method is well suited for relatively small documents, depending primarily upon the limitations of the sending fax machine, it may not be possible to send large documents in a single transmission. If it becomes necessary to split a document into multiple parts to make the fax transmission, a separate cover sheet should be used on each part to identify the document. In the event the facsimile copy is not sufficiently legible, the Commission or the clerk of the Supreme Court may require the party to provide a copy by mail.
(5) Rule 27(f), RJDE, is amended to provide:
(f) Rehearing. A petition for rehearing must be received by the Supreme Court within 15 days after the filing of the decision or order in accordance with Rule 221, SCACR. No return to a petition for rehearing may be filed unless requested by the Supreme Court. Ordinarily, however, rehearing will not be granted in the absence of such a request.
(6) Rule 15(a)-(e), RJDE, is amended to provide:
RULE 15. OATHS; SUBPOENA POWER
(a) Oaths. Oaths and affirmations may be administered by any member of the Commission, disciplinary counsel, or any other person authorized by law to administer oaths and affirmations.
(b) Subpoenas for Investigation.
(1) Disciplinary counsel may compel by subpoena the attendance of the judge or witnesses and the production of pertinent books, papers, documents (whether in typed, printed, written, digital, electronic, or other format), and other tangible evidence for the purposes of investigation. Disciplinary counsel shall conduct any appearance in accordance the provisions of Rule 19(c)(3).
(2) In the investigation stage of the proceedings, a judge under investigation may request the issuance of subpoenas for specific witnesses or documents by making the request to the Commission. The Commission chair, vice-chair, or Commission counsel may direct disciplinary counsel to issue the subpoena(s). Disciplinary counsel shall provide the judge with copies of documents submitted in response to the subpoena(s). Disciplinary counsel shall conduct any appearance in accordance with the provisions of Rule 19(c)(3).
(c) Subpoenas for Deposition or Hearing. After formal charges are filed, either disciplinary counsel or respondent may compel by subpoena the attendance of witnesses and the production of pertinent books, papers, and documents at a deposition or hearing held under these rules.
(d) Enforcement of Subpoenas. The willful failure to comply with a subpoena issued under this rule may be punished as a contempt of the Supreme Court. Upon proper application, the Supreme Court may enforce the attendance and testimony of any witnesses and the production of any documents subpoenaed.
(e) Quashing or Modifying Subpoenas; Interlocutory Appeals Prohibited.
(1) Any attack on the validity of a subpoena shall be heard and determined by the chair or the vice chair of the Commission during an investigation, or by the chair of the hearing panel before which the matter is pending, who may enter an order granting or denying the relief or modifying the subpoena. A request for an extension of time to comply with a subpoena during an investigation shall be heard and determined by the chair or the vice-chair of the Commission.
(2) Any resulting order shall not be subject to an interlocutory appeal; instead these decisions must be challenged by filing objections or a brief following service of the hearing panel report pursuant to Rule 27(a).
. . . .
(7) Rule 25(a), (b), and (f), RJDE, is amended to provide:
RULE 25. DISCOVERY
(a) Initial Disclosure. Within 30 days of the service of an answer, disciplinary counsel and respondent shall exchange:
(1) the names and addresses of all persons known to have knowledge of the relevant facts;
(2) non-privileged evidence relevant to the formal charges;
(3) the names of expert witnesses expected to testify at the hearing and affidavits setting forth their opinions and the bases therefor; and,
(4) other material only upon good cause shown to the chair of the hearing panel.
Disciplinary counsel or the respondent may withhold such information only with permission of the chair of the hearing panel or the chair's designee, who shall authorize withholding of the information only for good cause shown, taking into consideration the materiality of the information possessed by the witness and the position the witness occupies in relation to the judge. The chair's review of the withholding request is to be in camera, but the party making the request must advise the opposing party of the request without disclosing the subject of the request.
(b) Pre-Hearing Disclosure. The chair of the hearing panel shall set a date for the exchange of witness lists and exhibits no later than 30 days prior to the scheduled hearing. Disciplinary counsel and respondent shall exchange exhibits to be presented at the hearing, names and addresses of witnesses to be called at the hearing, witness statements, and summaries of interviews with witnesses who will be called at the hearing (for purposes of this paragraph, a witness statement is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded). Copies of transcripts of testimony taken by a court reporter pursuant to Rule 15(b) or Rule 19(c) may be obtained by the parties from the court reporter at the expense of the requesting party and need not be made available to the requesting party by the opposing party unless not otherwise available or otherwise directed by the Commission under Rule 25(h).
. . .
(f) Completion of Discovery. All discovery shall be completed 30 days prior to the date of the scheduled hearing, unless the Commission permits otherwise.
. . . .
(8) Rule 21, RJDE, is amended to provide:
RULE 21
DISCIPLINE BY CONSENT(a) Agreement. At any stage in the proceedings, the judge and disciplinary counsel may agree to the imposition of a stated sanction, a range of sanctions, or the issuance of a letter of caution in exchange for the judge's admission of any or all of the allegations of misconduct involved in the proceedings. If the agreement is entered into after the filing of the formal charges, the agreement shall admit or deny the allegations contained in the formal charges. If the agreement is entered into before the filing of the formal charges, the agreement shall contain the specific factual allegations which the judge admits he or she has committed and the applicable provisions of the Code of Judicial Conduct or other ethical or disciplinary provisions that the judge admits the judge has violated. The agreement shall be signed by disciplinary counsel, by the judge and, if the judge is represented by counsel, by the judge's counsel. The signature of the judge's counsel on the agreement shall indicate that counsel has advised the judge regarding the agreement and that counsel believes the judge is voluntarily entering into the agreement with a full understanding of the effect of the agreement. Together with any signed agreement, a judge may also submit to disciplinary counsel a sworn statement(s) or other documents, including affidavits by other persons, for the Commission and the Court to consider in mitigation.
(b) Affidavit of Consent. The judge shall also sign an affidavit stating that:(1) the judge consents to the sanction(s) or letter of caution;
(2) the consent is voluntarily given; and
(3) the matters admitted in the agreement and the facts stated in the affidavit are true.
(c) Submission to Panel. Disciplinary counsel shall transmit the fully executed agreement, the affidavit of consent, and any documents submitted by the judge in mitigation to Commission counsel and also serve the judge with a copy. Commission counsel shall submit the agreement, affidavit of consent, and any documents submitted in mitigation to an investigative panel if formal charges have not been filed, or to a hearing panel if formal charges have been filed on any of the allegations. Provided, if formal charges have been filed but not heard, an investigative panel can consider the proposed agreement and affidavit if the parties both agree in writing. The panel shall either reject the agreement, or submit the agreement, affidavit of consent, and any documents that were submitted in mitigation to the Supreme Court if it determines the agreement should be accepted. An investigative panel shall, however, finally approve or disapprove an agreement for an admonition, a deferred discipline agreement or a letter of caution and, if approved, shall impose the sanction or issue the letter of caution without submitting the matter to the Supreme Court.
(d) Action by Supreme Court. If the panel submits the matter to the Supreme Court, the Supreme Court shall either reject the agreement or issue a decision disciplining the judge, which shall be based on the agreement. The decision shall comply with the requirements of Rule 27(e).
(e) Effect of Rejection of Agreement. If an agreement is rejected by the panel or the Supreme Court, the proceedings shall continue. The rejected agreement, affidavit of consent, and any documents submitted in mitigation shall be withdrawn and shall not be used against the judge in any further proceedings.
(f) Confidentiality. The agreement, affidavit of consent, and any documents submitted in mitigation shall remain confidential until the Supreme Court enters a decision disciplining the judge, at which time the agreement, affidavit of consent, and any documents submitted in mitigation shall be available to the public. The agreement, affidavit of consent, and any documents submitted in mitigation shall not be available to the public at any time if the agreement is rejected, or if the submission of the agreement results in the imposition of an admonition, a deferred discipline agreement or a letter of caution by an investigative panel.
(g) Briefs, Additional Information, and Oral Arguments. The Supreme Court may require the parties to submit briefs and/or participate in oral arguments in connection with the agreement. The Supreme Court may also require the parties to submit additional information prior to taking action with respect to the agreement. Either the judge or disciplinary counsel may move before the Supreme Court for permission for the parties to file briefs, to have oral arguments, or both in connection with the agreement, but the Supreme Court, in its discretion, may take action on the agreement without briefs, without oral arguments, or without either, notwithstanding a request from one or both of the parties.
(9) Rule 19(b) and (c)(1), RJDE, is amended to provide:
(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).
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