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In re Amendments to Rules 408 and 504, South Carolina Appellate Court Rules

Supreme Court of South Carolina

March 13, 2019

Amendments to Rules 408 and 504, South Carolina Appellate Court Rules; Amendments to Appendix C to Part IV, South Carolina Appellate Court Rules Appellate Case Nos. 2017-001416, 2018-000119

          ORDER

         The South Carolina Bar and the Commission on Continuing Legal Education and Specialization have filed separate petitions seeking to amend Rule 408, SCACR, and the regulations implementing that rule, which are contained in Appendix C to Part IV, SCACR.

         The South Carolina Bar proposed amending Rule 408 to require that lawyers complete one hour of continuing legal education devoted exclusively to instruction in substance abuse, mental health issues or stress management and the legal profession (SA/MH) every two annual reporting years, rather than every three annual reporting years. We grant the Bar's request to increase the frequency of the requirement, but modify Rule 408 to require that credit for SA/MH count toward the general continuing legal education requirements for lawyers, rather than the legal ethics and professional responsibility requirements. We also amend Rule 504, SCACR, to include a specific requirement that judges complete the same SA/MH requirement.

         The Commission on Continuing Legal Education and Specialization has proposed a separate set of amendments to Appendix C to Part IV, SCACR, which contains the regulations for Rules 408, 419, and 504, SCACR. Among other things, these amendments (1) increase the number of distance learning hours a Bar member may earn each reporting year from six hours to eight hours; (2) clarify the responsibilities of sponsors of courses or programs; and (3) incorporate provisions related to the requirement that newly admitted lawyers complete an Essentials Series Course. We grant the Commission on Continuing Legal Education and Specialization's request to amend Appendix C, with a number of modifications.

         Pursuant to Article V, Section 4 of the South Carolina Constitution, Rules 408 and 504, SCACR, and Appendix C to Part IV, SCACR, are amended as set forth in the attachment to this Order. These amendments shall be effective May 1, 2019, to permit the Commission on Continuing Legal Education and Specialization to make appropriate changes to its recording systems and notify sponsors of the SA/MH changes.

          Donald W. Beatty C.J., John W. Kittredge, J., Kaye G. Hearn, J., John Cannon Few, J., George C. James, Jr. J.

         and more...

         Rule 408(a)(2), South Carolina Appellate Court Rules, is amended to provide:

         (2) Continuing Legal Education Requirements for Members of the South Carolina Bar. Except as provided below, all members of the South Carolina Bar shall be required to attend at least fourteen (14) hours of approved CLE courses each reporting year. At least two (2) of the fourteen (14) hours required annually shall be devoted to legal ethics/professional responsibility (LEPR). At least once every two (2) reporting years, the member must complete one (1) hour of CLE devoted exclusively to instruction in substance abuse, mental health issues or stress management and the legal profession. Substance abuse/mental health credit shall be a part of the general CLE requirement and cannot be applied to satisfy the LEPR requirement. The following members of the South Carolina Bar shall be exempt from these requirements:

(A) specialists certified pursuant to this Rule who satisfy the CLE requirements of their specialty; provided, however, that at least two (2) hours of the CLE credits completed by certified specialists shall be devoted to LEPR. At least once every two (2) reporting years, the member must complete one (1) hour of CLE devoted exclusively to instruction in substance abuse, mental health issues or stress management and the legal profession.
. . . .

         Rule 408(b)(2) is amended to transfer "and" from the end of paragraph (b)(2)(E) to the end of paragraph (b)(2)(G) and add new paragraph (b)(2)(H), which provides:

         (H) make a list of all fees available to the public.

         Rule 504(b), South Carolina Appellate Court Rules, is amended to provide:

         (b) Continuing Legal Education Requirement. A judge shall complete a minimum of 15 hours of continuing legal education approved by the Commission on Continuing Legal Education and Specialization (Commission) each year. The annual reporting period for purposes of this Rule shall run from March 1 through the last day in February. A judge may be given credit in one or more succeeding reporting periods, not exceeding three (3) such periods, for completing more than fifteen (15) hours of approved education during any one reporting period. At least once every two (2) reporting years, a judge must complete one (1) hour of approved education devoted exclusively to instruction in substance abuse, mental health issues or stress management and the legal profession.

         Appendix C to Part IV, South Carolina Appellate Court Rules, is amended to provide:

         APPENDIX C

         REGULATIONS FOR MANDATORY CONTINUING LEGAL EDUCATION FOR JUDGES, MEMBERS OF THE SOUTH CAROLINA BAR, AND FOREIGN LEGAL CONSULTANTS

         I. Purpose

         These Regulations implement Rules 408, 419, and 504 of the South Carolina Appellate Court Rules (SCACR).

         II. Requirements

         A. Members of the South Carolina Bar.

1. Continuing Legal Education Requirements. Rule 408, SCACR, governs the mandatory continuing legal education (MCLE) requirements for members of the South Carolina Bar.
2. Legal Ethics/Professional Responsibility Credit. Legal ethics/professional responsibility (LEPR) credit shall include, but not be limited to, instruction focusing on the Rules of Professional Conduct as they relate to law firm management; malpractice avoidance; lawyer fees; legal ethics; and the duties of lawyers to the judicial system, the public, clients, and other lawyers. LEPR may also include, but not be limited to, instruction focusing on the elimination of bias in the legal profession. Elimination of bias instruction includes programming designed to educate lawyers on the recognition, identification, prevention, and elimination of bias in the legal setting as well as programming on diversity in the legal profession.
3. Carry-forward CLE Credit. A member may carry a maximum of fourteen (14) hours forward to the next reporting year, of which a maximum of two (2) hours may be LEPR credit. Credit for online and telephone courses in excess of the maximum eight (8) hours per reporting year cannot be carried forward. Credit for Substance Abuse Mental Health (SA/MH) courses may not be carried forward from one two-year reporting cycle to the next.

         B. Newly Admitted Members of the South Carolina Bar Admitted Pursuant to Rule 402, SCACR.

1. Rule 408, SCACR, governs the MCLE requirements for newly admitted members admitted pursuant to Rule 402, SCACR. New members are exempt from MCLE requirements during the reporting year of their admission. Except for the South Carolina Bar's Essential Series credits, CLE hours earned by new admittees during the reporting year of their admission cannot be carried forward to satisfy the MCLE requirements of their first reporting year.
2. Failure to complete the Essentials Series course as specified in Rule 408, SCACR, will result in administrative suspension pursuant to Rule 419, SCACR.

         C. Newly Admitted Limited Certificate Members.

1. Limited certificate members licensed under Rule 405, SCACR (Limited Certificate of Admission to Practice Law in South Carolina), Rule 414, SCACR (Limited Certificate of Admission for Clinical Law Program Teachers), Rule 427, SCACR (Limited Certificate of Admission for Judge Advocates), and Rule 430, SCACR (Limited Certificate of Admission for Military Spouse Attorneys) are not exempt from MCLE requirements during the reporting year of their admission; however, compliance with the MCLE requirements is waived for limited certificate members admitted to practice after December 31 of that reporting year.
2. Rule 408, SCACR, exempts limited certificate members licensed under Rule 415, SCACR (Limited Certificate of Admission for the Retired and Inactive Attorney Pro Bono Participation Program) from the MCLE requirements.

         D. Foreign Legal Consultants.

         Rule 408, SCACR, governs the MCLE requirements for foreign legal consultants admitted to practice pursuant to Rule 424, SCACR (Licensing of Foreign Legal Consultants).

         E. Judicial Members.

1. Judicial Continuing Legal Education Requirements. Rule 504, SCACR, governs the mandatory judicial continuing legal education (JCLE) requirements for judicial members of the South Carolina Bar.
2. Carry-forward JCLE Credit. Not more than thirty (30) hours of JCLE credit may be carried forward from one reporting year to the next reporting year. If a Bar member's status changes from a judicial member to a regular member, carry-forward credit cannot exceed the maximum carry-forward credit approved for Bar members.
3. Mandatory Attendance at Designated Educational Activities. Without regard to any JCLE credit accumulated pursuant to the requirements of Regulation II(E)(1), judicial members shall attend any educational activity designated as mandatory by the Supreme Court of South Carolina. "Educational activity" means any course, seminar, program, conference, roundtable, or other activity which has been accredited for JCLE purposes and which has been designated as mandatory for judicial members. Attendance at an educational activity may be designated as mandatory for all judicial members or only for certain specified categories of judicial members (for example: mandatory for probate judges only).

         III. Exemptions

         A. Rule 408 SCACR, governs members who are exempt from the MCLE requirements.

         B. For JCLE requirements imposed by Rule 504, SCACR, judicial members are exempt in the year in which they are sworn into office, provided they have satisfied the MCLE ...


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