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Brooks v. South Carolina Commission on Indigent Defense

Court of Appeals of South Carolina

February 15, 2017

Charles Thomas Brooks, III, Appellant,
South Carolina Commission on Indigent Defense and Office of Indigent Defense, Respondents. Appellate Case No. 2014-002477

          Heard November 9, 2016

         Appeal From Richland County D. Craig Brown, Circuit Court Judge

          Irma Pringle Brooks, of Law Offices of Charles T. Brooks, III, of Sumter, for Appellant.

          G. Murrell Smith, Jr., of Lee, Erter, Wilson, Holler & Smith, LLC, of Sumter, for Respondents.

          GEATHERS, J.

         Appellant Charles Brooks challenges the circuit court's order disqualifying Irma Brooks-Appellant's wife and law partner-from representing him and disqualifying Appellant from representing himself pursuant to Rule 3.7 of the South Carolina Rules of Professional Conduct. We affirm in part, reverse in part, vacate in part, and remand.


         Appellant and his wife are attorneys and practice out of Appellant's law office. A substantial portion of Appellant's practice has been devoted to representing indigent clients in criminal cases, post-conviction relief actions, probation revocations, and Department of Social Services (DSS) cases. Once work was completed on an indigent defense case, Appellant and his employees would compute the amount of billable time and submit a voucher to the South Carolina Commission on Indigent Defense (the Commission)[1] for payment of fees and reimbursement of expenses.

         In September 2009, the Executive Director of the Commission filed a complaint with the Office of Disciplinary Counsel (ODC) alleging suspected overbilling by Appellant via submissions of vouchers during the period of October 2006 through September 2009. In December 2009, pursuant to Appellant's request, the Commission stopped paying vouchers that continued to be submitted until a determination regarding overbilling was made. During the ODC investigation, the Commission referred the matter to the South Carolina Attorney General's office for investigation.

         The Attorney General's office conducted a preliminary investigation and the special investigator interviewed Appellant, Irma Brooks, and Appellant's employees. During his interview, Appellant stated his office would submit timesheets under his name for work that Irma Brooks actually performed. Additionally, according to the special investigator's report, Appellant "would appear for a hearing on a case that Irma Brooks was working and vice versa." Office staff would send Irma Brooks vouchers for cases on which she worked for her review.

         Irma Brooks stated in her interview with the special investigator that she worked on indigent defense cases even though they were assigned to Appellant by the Commission. The time spent and work she completed on indigent defense cases were noted in the case file and served as the basis for the vouchers later submitted to the Commission. The vouchers were submitted under Appellant's name because Appellant was the assigned attorney. In cases in which Appellant and Irma Brooks worked jointly, both would review vouchers for correctness prior to submitting them to the Commission. Scheherazade Charles-Appellant's employee from April 2005 to July 2007-prepared timesheets and vouchers on behalf of Irma Brooks that were submitted to the Commission under Appellant's name. The special investigator determined the vouchers were submitted under Appellant's name because Irma Brooks did not have a password or identifying number with the Commission.

         Upon completion of its investigation, the Attorney General's office decided it could not prove any criminal activity beyond a reasonable doubt and declined to pursue the case. Subsequently, Appellant and ODC entered into an agreement for discipline by consent, agreeing Appellant had received $61, 826.40 in excess compensation due to overbilling on indigent defense cases. As part of the agreement, Appellant requested the amount owed to him by the Commission in unpaid vouchers be reduced by $61, 826.40. Our supreme court accepted the agreement and publicly reprimanded Appellant by opinion dated August 1, 2012. Appellant later determined the Commission owed him $110, 522.85 in vouchers that had been submitted but not paid since the investigation began.

         Appellant subsequently filed a summons and complaint against the Commission, seeking payment of vouchers for work completed on indigent defense cases. Appellant asserted he was owed $48, 696.45-the amount owed by the Commission on unpaid vouchers reduced by the amount Appellant had overbilled. Attorneys Desa Ballard and Harvey M. Watson, III represented Appellant during the investigation and when the complaint was filed. The Commission answered the complaint asserting, in part, defenses based on fraud, misrepresentation, and negligence and counterclaims based on breach of contract. In the Commission's responses to Appellant's interrogatories, it listed Irma Brooks as a witness.

         In February 2013, the circuit court granted the request of Attorneys Ballard and Watson to be relieved as Appellant's counsel. Appellant thereafter continued pro se. In August 2014, Irma Brooks filed a Notice of Appearance on Appellant's behalf. In response, the Commission moved to disqualify Irma Brooks and Appellant as attorneys of record for Appellant.

         The circuit court subsequently issued its ruling disqualifying Irma Brooks from representing Appellant and also Appellant from representing himself. The circuit court found Irma Brooks was a necessary witness under Rule 3.7(a) of the South Carolina Rules of Professional Conduct-which precludes a lawyer from advocating at a trial in which that lawyer is likely to be a necessary witness. Moreover, the circuit court found Irma Brooks' disqualification was not a substantial hardship to Appellant because, at that point, she had been involved in the case for only two months and the expense of hiring new counsel did not outweigh the prejudice the Commission would experience if it could not call Irma Brooks as a witness.

         The circuit court also disqualified Appellant from representing himself because "[t]o allow [Appellant] to represent himself as well as be a witness would lead to a conflict with Rule 3.7." The circuit court found "there may be confusion as to whether statements made by [Appellant] as an advocate witness would be taken as proof as a fact witness or as an analysis of proof as an attorney." This appeal followed.

         STANDARD ...

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