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In re Fabri

Supreme Court of South Carolina

November 16, 2016

In the Matter of Margaret D. Fabri, Respondent. Appellate Case No. 2016-000917

          Heard September 21, 2016

          Disciplinary Counsel Lesley M. Coggiola and Senior Assistant Disciplinary Counsel Charlie Tex Davis, Jr., both of Columbia, for Office of Disciplinary Counsel.

          David Dusty Rhoades, of Charleston, for Respondent.

          PER CURIAM.

         In this attorney disciplinary matter, the Office of Disciplinary Counsel ("ODC") filed formal charges against Margaret Fabri ("Respondent"), alleging Respondent committed misconduct by issuing two subpoenas without providing notice to opposing counsel as required under Rule 45(b)(1) of the South Carolina Rules of Civil Procedure ("SCRCP").[1] By way of return, Respondent argued she was not required to notify opposing counsel because the subpoenas commanded the appearance of a witness and the production of documents at a hearing rather than before the hearing; therefore, discipline is improper. A five member hearing panel ("Hearing Panel") for the Commission on Lawyer Conduct ("Commission") disagreed with Respondent. As a result, a majority of the Hearing Panel recommended Respondent: receive a public reprimand; be directed to pay the costs of the proceedings; and be ordered to attend the South Carolina Bar's Legal Ethics and Practice Program Ethics School. We accept this recommendation.

         I. Factual and Procedural History

         Respondent represented Husband in a divorce action. Due to Wife's delay in producing a financial declaration, Respondent issued two subpoenas to the records custodian at Wife's employer. The subpoenas were titled "Hearing Subpoena (Duces Tecum)" and commanded the records custodian appear at a temporary hearing and produce various documents related to Wife's employment. The cover letter to the subpoenas provided: "[i]f you are able to produce the requested documents to me prior to the hearing date, it may not be necessary for your records custodian to appear." Respondent signed the subpoenas, certifying that they were "issued in compliance with Rule 45(c)(1) and that notice as required by Rule 45(b)(1) ha[d] been given to all parties." In actuality, Respondent did not provide opposing counsel notice of either subpoena.

         ODC subsequently filed formal charges against Respondent, alleging she committed misconduct by failing to provide opposing counsel notice of the subpoenas as required under Rule 45(b)(1), SCRCP. In response, Respondent argued she was not required to notify opposing counsel because the subpoenas were titled "hearing subpoena duces tecum" and commanded the appearance of a witness and the production of documents at the hearing. Although Respondent recognized she invited the records custodian to produce the documents before the hearing, Respondent attempted to dismiss this fact by asserting it was merely a request not a command. In light of her assertions, Respondent requested the charges be dismissed.

         After a hearing, the Hearing Panel issued its report in which it agreed with ODC. In finding Respondent's actions constituted professional misconduct, the Hearing Panel relied on the fact that: (1) Respondent issued two subpoenas without providing notice to opposing counsel as required under Rule 45(b)(1), SCRCP; (2) Respondent nevertheless certified that notice to opposing counsel had been provided; and (3) the subpoenas commanded the production of documents in contravention of Rule 25 of the South Carolina Rules of Family Court ("SCRFC"), which prohibits discovery in the family court without a court order or a stipulation by both parties. Based on these facts and Respondent's prior disciplinary history, which will be discussed in greater detail below, three panel members recommended Respondent receive a public reprimand. Two panel members recommended Respondent receive an admonition. In addition, the entire panel recommended Respondent be directed to pay the costs of the proceedings and be directed to attend the South Carolina Bar's Legal Ethics and Practice Program Ethics School within one year of the imposition of any discipline imposed. Respondent now asks this Court to review the Hearing Panel's findings.

         II. Standard of Review

         "This Court has the sole authority to discipline attorneys and to decide the appropriate sanction after a thorough review of the record." In re Thompson, 343 S.C. 1, 10, 539 S.E.2d 396, 401 (2000). "The Court is not bound by the panel's recommendation and may make its own findings of fact and conclusions of law." In re Hazzard, 377 S.C. 482, 488, 661 S.E.2d 102, 106 (2008); see Rule 27(e)(2), RLDE, Rule 413, SCACR ("The Supreme Court may accept, reject, or modify in whole or in part the findings, conclusions and recommendations of the Commission.").

         "A disciplinary violation must be proven by clear and convincing evidence." In re Greene, 371 S.C. 207, 216, 638 S.E.2d 677, 682 (2006); see Rule 8, RLDE, Rule 413, SCACR ("Charges of misconduct or incapacity shall be established by clear and convincing evidence, and the burden of proof of the charges shall be on the disciplinary counsel.").

         III. Discussion

         Respondent maintains she was not required to notify opposing counsel of ...


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