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In re Amendments to South Carolina Rules for Lawyer Disciplinary Enforcement

Supreme Court of South Carolina

October 16, 2009

RE: Amendments to the South Carolina Rules for Lawyer Disciplinary Enforcement

          ORDER

          JEAN H. TOAL C.J.

         Pursuant to Article V, §4 of the South Carolina Constitution, the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court Rules are amended as shown in the attachment to this order. These amendments shall be effective January 1, 2010, and shall apply to all disciplinary complaints filed on or after that date. The amendments shall also apply to all matters in which formal charges are pending on the effective date.

         For a complaint pending on the effective date of these amendments for which no formal charges have been filed, the matter shall continue under the current rules until concluded or until formal charges are filed. Once formal charges are filed, the matter shall proceed under the amended rules.

         Further, the increase in public members on the Commission on Lawyer Conduct will be phased in, beginning with the addition of two public members (one to each panel) in the first year and then adding the second public member to each panel as the terms of current lawyer members expire.

         Finally, lawyers who were indefinitely suspended before January 1, 2010, shall not be eligible to file a petition for reinstatement under Rule 33, RLDE, until two years from the date of entry of the order of indefinite suspension.

         IT IS SO ORDERED.

          John H. Waller, Jr. Costa M. Pleicones, Donald W. Beatty, John W. Kittredge Judges

         Amendments to the Rules for Lawyer Disciplinary Enforcement

         (1) Rule 2(b), (h), (o), (p) and (r), RLDE, are amended to read:

         (b) Closed, But Not Dismissed: a manner of disposing of a matter where a panel of the Commission makes a finding 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.

         (h) Disciplinary Counsel: the lawyer in charge of screening and investigating complaints, prosecuting formal charges and performing other duties assigned by the Supreme Court. See Rule 5.

         (o) Investigation: an inquiry into allegations of misconduct, including a search for and examination of evidence concerning the allegations. See Rule 19.

         (p) Investigative Panel: the panel of the Commission that considers the recommendations of disciplinary counsel with regard to the disposition of cases and acceptance of agreements for resolution of disciplinary matters. The investigative panel also determines whether formal charges will be filed. See Rule 4.

         (r) Letter of Caution: a written caution or warning about past or future conduct issued when it is determined that no misconduct has been committed or that only minor misconduct not warranting the imposition of a sanction has been committed. A letter of caution may be issued by disciplinary counsel, an investigative panel or the Supreme Court. The issuance of a letter of caution is not a form of discipline under these rules and does not constitute a finding of misconduct unless the letter of caution specifically states that misconduct has been committed. The fact that a letter of caution has been issued shall not be considered in a subsequent disciplinary proceeding against the lawyer unless the caution or warning contained in the letter of caution is relevant to the misconduct alleged in the proceedings.

         (2) Rule 3(c) and (d), RLDE, are amended to read:

         (c)Appointment of Members. The Commission shall be composed of 50 members appointed by the Supreme Court. 34 members shall be active members of the South Carolina Bar. 16 members shall be public members.

         (d)Terms. Attorney members shall serve for a term of 4 years and public members shall serve for a term of 2 years. Commission members shall be eligible for reappointment. A member assigned to a hearing panel may continue to participate in the hearing and decision of a matter despite the expiration of the member's term if the hearing began before the expiration of the term.

         (3) Rule 4(b), RLDE, is amended to read:

         (b) Panels and Meetings. The attorney members of the Commission, other than the chair and vice-chair, shall be divided by the chair into 8 panels of 4 attorney members and 2 public members. The panels shall be assigned to serve as an investigative panel or a hearing panel as designated by the chair. If the panel is assigned to serve as an investigative panel, the chair shall add either the chair or the vice-chair to the panel to increase its membership to 7. The chair may rotate the assignments of the panels as investigative or hearing panels, and may rotate membership on the panels; provided, however, that no member shall sit on both the investigative and hearing panel for the same proceeding. Panels shall meet when scheduled by the Commission. The full Commission shall meet periodically as determined by the Commission to consider administrative matters. Meetings of the Commission other than periodic meetings may be called by the chair upon the chair's own motion and shall be called by the chair upon the written request of three members of the Commission.

         (4)Rule 4(e)(2), RLDE, is amended to read:

         (2) In addition to the duties assigned to Commission counsel in Rule 6, the Commission may delegate to the Commission counsel the duty and authority to:

(A)maintain the Commission's records;
(B)maintain statistics concerning the operation of the Commission and make them available to the Commission and the Supreme Court;
(C)prepare an annual report of the Commission's activities for presentation to the Supreme Court and the public;
(D)inform the public of the existence and operation of the lawyer discipline system, including the Commission's address and telephone number and the disposition of each matter in which public discipline is imposed;
(E)monitor lawyers for compliance with conditions of reinstatement, readmission, discipline and deferred discipline, and refer lawyers who fail to comply to disciplinary counsel for contempt proceedings;
(F)provide advice and assistance to attorneys appointed to protect clients' interests; and,
(G)supervise attorneys, court reporters, and other staff as the Supreme Court may provide to the Commission.

         (5)Rule 4(f), RLDE, is amended to read:

         (f) Powers and Duties of Investigative Panel. An investigative panel shall have the duty and authority to:

         (1)review the recommendations of disciplinary counsel after investigation and either issue a letter of caution with or without a finding of misconduct, issue notice of intent to impose a confidential admonition, enter into a deferred discipline agreement, consider an agreement for discipline by consent, authorize formal charges, refer the matter to another agency, or dismiss the complaint;

         (2)designate a member of the panel to preside over the investigative panel in the absence of the chair or vice-chair of the Commission;

         (3)declare a matter closed, but not dismissed prior to the filing of formal charges;

         (4)issue orders pursuant to Rule 31(b)(1); and,

         (5)after proper notice, re-open a matter that has been previously dismissed or closed but not dismissed.

         (6)Rule 5(b)(1) and (11), RLDE, are amended to read:

         (1) receive and screen complaints, dismiss complaints, issue letters of caution with no finding of misconduct, refer complaints to other agencies when appropriate, conduct investigations, notify complainants about the status and disposition of their complaints, make recommendations to an investigative panel on the disposition of complaints after investigation, file formal charges when directed to do so by an investigative panel, prosecute formal charges, and file briefs and other appropriate petitions with the Supreme Court;

         (11) perform other duties at the direction of the Commission ...


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