29th Annual Criminal Practice in South Carolina
Friday, February 28, 2020
presented by The South Carolina Bar Continuing Legal Education Division
http://www.scbar.org/CLE
SC Supreme Court Commission on CLE Course No.202729 6.25 MCLE; 1.0 LEPR; 1.0 SA/MH
29th Annual Criminal Practice in South Carolina Friday, February 28, 2020
This program qualifies for 6.25 MCLE; 1.0 LEPR; 1.0 SA/MH SC Supreme Commission on CLE Course #202729
8:30 a.m. Registration
8:55 a.m. Welcome and Program Overview
9:00 a.m. South Carolina Legislative Update Honorable A. Shane Massey Member, South Carolina Senate (District 25) Majority Leader and Chairman, Senate Rules Committee Attorney, Massey & Massey LLC
9:30 a.m. Significant Appellate Decisions from 2019 Moderator: Honorable George C. James, Jr. Justice, Supreme Court of South Carolina
Robert M. Dudek, Chief Appellate Defender South Carolina Commission on Indigent Defense
Mark Reynolds Farthing, Senior Assistant Attorney General Criminal Appeals Section, S.C. Attorney General’s Office
Honorable William Benjamin Rogers, Jr. Solicitor Fourth Judicial Circuit
Tara D. Shurling, Esquire Law Office of Tara Dawn Shurling, PA
Stephanie J. Smart-Gittings, Circuit Public Defender Fourteenth Judicial Circuit
Honorable Isaac McDuffie Stone, III, Solicitor Fourteenth Judicial Circuit
11:00 a.m. Break
11:15 a.m. Hot Ethics Issues for Criminal Practitioners Moderator: Amie L. Clifford, General Counsel and Director of Education Coordinator S.C. Commission on Prosecution Coordination
Honorable Barry J. Barnette Solicitor Seventh Judicial Circuit
Susan Barber Hackett, Assistant Appellate Defender S.C. Commission on Indigent Defense, Division of Appellate Defense
Breen R. Stevens, Circuit Public Defender First Judicial Circuit 29th Annual Criminal Practice in South Carolina
SPEAKER BIOGRAPHIES (by order of presentation)
Amie L. Clifford S.C. Commission on Prosecution Coordination Columbia, SC (course planner)
Amie L. Clifford serves as General Counsel and Director of Education Services for the South Carolina Commission on Prosecution Coordination. Her responsibilities include advising the Commission and the Circuit Solicitors; monitoring legislation, case law, and rule changes; analyzing legislation; creating and managing educational programs for state and local prosecutors; and special projects, including preparation of amicus briefs. She previously was employed by the National District Attorneys Association (NDAA) as Director of the National Center for Prosecution Ethics and an Assistant Director of Programs for the National College of District Attorneys. She also previously served as Supreme Court (Judicial) Fellow at the U.S. Sentencing Commission (1999 – 2000), Assistant Solicitor, Charleston County Solicitor’s Office (1991 – 1999), Assistant Attorney General in the Criminal Appeals Section, South Carolina Attorney General’s Office (1984 – 1991), and Staff Attorney, Piedmont Legal Services, Inc. (1983 – 1984). As a volunteer, she represented the State in criminal appeals as a Special Assistant Attorney General (2006 – 2010; 2013 – 2018). Amie has served as a contributing author for publications of the South Carolina Bar, ABA, and NDAA, including South Carolina Jurisprudence; South Carolina Criminal Trial Techniques Handbook; Doing Justice: A Prosecutor’s Guide to Ethics and Civil Liability (2nd ed. 2007 NDAA) (also served as editor); Managing Prosecutors (2007 NDAA); and The Fourth Amendment Handbook: A Chronological Survey of Supreme Court Decisions (2nd ed. 2002 ABA) (also served as a co-editor). Amie currently serves the South Carolina Bar as a member of the House of Delegates, member of the Ethics Advisory and Professional Responsibility Committees, and Vice-Chair of the Trial and Appellate Advocacy Section. She also currently serves as Immediate Past-President of the South Carolina Women Lawyers Association. Her past Bar service includes service as President of the South Carolina Bar Young Lawyers Division, President of the South Carolina Chapter of the Federal Bar Association, member of the ABA Standing Committee on Ethics and Professional Responsibility, and Council member of the ABA Criminal Justice Section. She is also a Fellow of the National Institute for the Teaching of Ethics and Professionalism (Inaugural Group) (2005). Amie graduated from the U.S.C. School of Law in May 1982 (at the age of 22) and was admitted to the South Carolina Bar in November 1982.
Honorable A. Shane Massey South Carolina Senate (District 25) Massey & Massey LLC Edgefield, SC
Shane Massey was elected to the South Carolina Senate in a 2007 special election, becoming the first Republican to represent his district.
Rather than waiting his turn from the back row, Senator Massey jumped into the fire and quickly earned a reputation as a bright conservative leader who was eager to get involved, willing to ask tough questions, and, to the consternation of some Senate leaders, determined to be outspoken.
In April 2016, Senator Massey was chosen by his fellow Senate Republicans to be the Senate Majority Leader.
Shane is a proud graduate of Clemson University and the USC School of Law. He is a Liberty Fellow and an Aspen Rodel Fellow. In 2014, the Washington Post named Senator Massey one of the top 40 rising political stars under the age of 40.
Shane and his wife, Blair, have two children. They live in Edgefield where Shane works as an attorney, teaches Sunday School, and occasionally moonlights as a really bad youth soccer coach.
Honorable George C. James, Jr. Justice, Supreme Court of South Carolina Sumter, SC
Justice James was born in 1960 in Savannah, Ga. and grew up in Sumter. He is the son of the late Ren F. James and the late George C. James. He is married to the former Dena Owen. They have a daughter, Alston, and a son, George. Alston is a speech pathologist in Rock Hill, and George is an attorney in Columbia.
Justice James graduated from Wilson Hall in Sumter and graduated cum laude from The Citadel in 1982, earning a Bachelor of Science degree in Business Administration. He earned his Juris Doctor degree from the University of South Carolina School of Law in 1985.
In 1985, Justice James joined the firm of Richardson, James & Player. He practiced with his father, the late George C. James, and with the late Henry B. Richardson, Jr., Thomas E. Player, Jr., and his brother, John E. James, III. In 2000, the firm merged with the firm of Lee, Erter, Wilson, Holler & Smith and became known as Lee, Erter, Wilson, James, Holler & Smith, LLC. Justice James was a partner in that firm until his election to the circuit court bench in 2006.
Justice James was sworn in as a resident circuit judge for the Third Judicial Circuit on July 1, 2006, replacing the retiring Howard P. King. He served as a Business Court Judge and was the 2009 recipient of the Matthew J. Perry Civility Award from the Richland County Bar Association. Justice James was elected to the Supreme Court on February 1, 2017 and was sworn in on February 7, 2017.
Justice James and his wife are members of Trinity United Methodist Church in Sumter; he has served as chairman of the Staff-Parish Relations Committee and as lay leader. He is a member of the Board of Trustees of Wilson Hall School and is chairman of the Athletic Committee of South Carolina Independent Schools Association. He has served in the past as a board member of the Sumter Unit of the American Cancer Society, Sumter Habitat for Humanity, and the Santee- Lynches Regional Council of Governments. He is a past member of the Sumter Sertoma Club. He has also been a Dixie Youth baseball coach and a YMCA youth basketball coach.
In addition to his membership in the South Carolina Bar and the Sumter County Bar Association, Judge James is a member of the Judicial Division of the American Bar Association. He is a former member of the South Carolina Defense Trial Attorneys Association, and the Defense Research Institute.
Law Clerks: Austin Reed and Tyra McBride
Robert M. Dudek South Carolina Commission on Indigent Defense Columbia, SC
Robert Dudek is the Chief Appellate Defender for the Division of Appellate Defense, the South Carolina Commission on Indigent Defense. He is a graduate of the University of South Carolina School of Journalism, and the University of South Carolina School of Law. While an undergraduate Dudek was a sports writer for the Gamecock. He was a VISTA volunteer in Alaska in 1980. Dudek began his career as an appellate lawyer as an Assistant Appellate Defender in 1990. After a two person Death Penalty Appellate Unit was formed, he was later promoted to Deputy Chief Appellate Defender for Capital Appeals. Dudek became the Chief Appellate Defender in 20 I 0, and he presently leads an office of twelve Appellate Defenders. He often presents at CLE programs on the "Case Law Update" on criminal law opinions issued by the South Carolina Supreme Court and the Court of Appeals for that year.
Mark Reynolds Farthing S.C. Attorney General’s Office Columbia, SC
Mark was born in Statesville, North Carolina, moved to Greer, South Carolina, when he was in elementary school, and has remained in South Carolina ever since. Mark attended Wofford College for his undergraduate degree and the Charleston School of Law for his law degree. Following law school, Mark clerked for the Honorable Ralph King Anderson, Jr. at the South Carolina Court of Appeals, and he continued to clerk for Judge Anderson when the judge returned to the circuit court bench as a retired active judge. Mark then began working as an Assistant Attorney General in the criminal appeals division of the South Carolina Office of the Attorney General, where he continues to work today as a Senior Assistant Attorney General. He has been admitted to practice in all South Carolina state courts, the United States District Court for the District of South Carolina, the United States Court of Appeals for the Fourth Circuit, and the United States Supreme Court. To date, Mark has argued over forty times in the South Carolina Supreme Court and over seventy times in the South Carolina Court of Appeals. Additionally, Mark has served as a member of the Chief Justice’s Committee to Review South Carolina Appellate Court Rules and of the South Carolina Attorney General’s Office’s Appellate Review Committee.
Honorable William Benjamin Rogers, Jr. Fourth Judicial Circuit Bennettsville, SC
Will Rogers was first elected Solicitor for the Fourth Judicial Circuit (Chesterfield, Darlington, Dillon, Marlboro) in November 2008. He took the oath of office in January 2009 and is now serving his third term as Solicitor. He was born and raised in Marlboro County and graduated from Bennettsville High School in 1985. He attended the University of South Carolina where he earned an undergraduate degree in Business Finance in 1989. He then attended the University of South Carolina School of Law where he earned a Juris Doctor degree in 1992. He is married to Debora “Mickey” Rogers and they were blessed with two wonderful children, Kasey and William. They attend the First Presbyterian Church in Bennettsville, S.C.
Tara D. Shurling Law Office of Tara Dawn Shurling, PA Columbia, SC
Ms. Tara Dawn Shurling received her undergraduate degree from the University of South Carolina in 1976. Subsequently, she received her J.D. Degree from the University of South Carolina in 1978. After graduating from law school, she joined the staff of the then newly created South Carolina Office of Appellate Defense in March 1979. While with that state agency, she represented indigents and handled approximately 2,000 criminal appeals including direct appeals and appeals from the denial of Post-Conviction Relief Applications. Attorneys with that agency function as appellate public defenders for those who are unable to hire legal counsel on appeal. In June of 1994, Ms. Shurling left Appellate Defense and went into private practice. Her practice has four primary focal areas; general criminal defense in both state and federal court, direct criminal appeals to both the South Carolina Court of Appeals and the Supreme Court of South Carolina, Post-Conviction Relief cases, both in the circuit court and on appeal to the Supreme Court of South Carolina, and federal habeas actions in the U. S. District Court and on appeal to the Fourth Circuit Court of Appeals. She has handled nearly two thousand criminal appeals of various types since going into private practice. Ms. Shurling also enjoys an active criminal trial practice. In addition, her practice handles personal injury cases. Ms. Shurling is admitted to practice in the United States District Court, the Fourth Circuit Court of Appeals and the United States Supreme Court, in addition to the South Carolina State Bar. Ms. Shurling is a frequent speaker at various continuing legal education seminars. She is a past chairman of the Criminal Law Section of the South Carolina Bar and has been actively involved on many other bar committees. She is a past President of the South Carolina Chapter of the Federal Bar Association. She has served on the Board for the South Carolina Women Lawyer’s Association for many years, and she is a Past President of that organization. Ms. Shurling is a Fellow in the American Academy of Appellate Lawyers. She joins only four other South Carolina lawyers to be admitted to the Academy. Ms. Shurling has been regularly recognized by South Carolina Super Lawyers. She is listed among the Best Lawyers in the Midlands by Columbia Metropolitan Magazine. From 2014-2017 her firm has been recognized by U.S. News and World Report as being among the best in the nation in her field of expertise and has recently been named for that distinction in 2018 as well. In 2017 she was recognized by Women in the Law, an organization which honors women lawyers nominated by their peers for excellence in their practices. She was recognized in 2017 by Columbia Living Magazine as one of the top attorneys in South Carolina. In 2018 she was honored to be named by Best Lawyers in America in the field of Appellate Practice. That organization is among the oldest and most respected peer review publications in the United States. She was also nominated by Lawyers of Distinction in 2017 in recognition of her special knowledge, skill, proficiency, as well as her professionalism and ethics in the practice of law. She has been named by CV Magazine for their 2018 list of the Legal Elite; their selection of the Lawyers of the Year. The publication, Finance Monthly, has named her as Lawyer of the Year in the United States in the category of Criminal Appellate practice. Ms. Shurling has her office in Columbia, South Carolina, where she and her family have lived since she was a small child. She takes cases from anywhere in South Carolina and has regularly traveled throughout the State to represent clients in virtually every county.
Stephanie J. Smart-Gittings Fourteenth Judicial Circuit Beaufort, SC
Stephanie J. Smart-Gittings is a native of Allendale, South Carolina. Her educational milestones include: 1987 Honor graduate of Allendale-Fairfax High School; she attended Palmetto Girls State; she holds a Bachelor’s Degree in Sociology from USC-Aiken which she received in 1991; and she holds a Juris Doctor Degree from North Carolina Central University School of Law which she received in 1997. She was admitted to the South Carolina Bar and continues to practice law in South Carolina's 14th Judicial Circuit.
Her service to the State of South Carolina and her community included: a Legislative Aide to Representative Wilbur L. Cave during the 1997 Legislative Session in the South Carolina House of Representatives, appointment to the South Carolina State Board of Education where she chaired the Finance and Legislative Committee and Teacher Recruitment Training and Certification Committee and service on the Hampton County First Steps Board.
Her professional career as an attorney began with her employment as Legal Counsel for South Carolina Department of Probation, Parole and Pardon Services in Columbia. Subsequently, she moved back to Allendale in 2000, where she was the Deputy Public Defender for Allendale, Hampton and Jasper Counties; in 2001 she served as An Assistant Public Defender in Beaufort County and returned to the Allendale, Hampton and Jasper office in 2009. In 2016 the S. C. Commission on Indigent Defense appointed her to serve as the 14th Circuit Chief Public Defender.
She holds social memberships in the Delta Sigma Theta Sorority Inc. and the Order of the Easter Star and professional membership in the South Carolina Trial Lawyers Association and National Association of Criminal Defense Lawyers.
Honorable Isaac McDuffie Stone, III Fourteenth Judicial Circuit Bluffton, SC
Duffie Stone became the Solicitor for the 14th Judicial Circuit in 2006. It is the only five county circuit in the state and is comprised of Beaufort, Allendale, Jasper, Colleton and Hampton Counties. A native of South Carolina, Stone is a graduate of Wofford College and the University of South Carolina School of Law. He is the Chairman of the South Carolina Prosecution Commission, the Chairman of the South Carolina Domestic Violence Advisory Committee and the President of the National District Attorney’s Association.
Honorable Barry J. Barnette Seventh Judicial Circuit Spartanburg, SC
Mr. Barnette is the Solicitor for the Seventh Judicial Circuit Solicitor Office, which consists of Spartanburg and Cherokee County since February 2011. He was the Principal Deputy Solicitor for the Seventh Judicial Circuit from January 2001 to February 2011. He was a Spartanburg County Magistrate Court Judge from July 1996 to January 2001. He was also a member of the Commission of Judicial Conduct from December 1997 to January 2001. He was an Assistant Solicitor from January 1991 to July 1996. He was in private practice from June 1990 to January 1991 in Easley, South Carolina. He also taught Chemistry and Physical Science at Travelers Rest High School from August 1988 to June 1990. He graduated from the West Virginia University College of Law in 1988 with a J.D. Degree. He graduated from Marshall University in 1985 and received a B.A. Degree in Education with specializations in Chemistry and General Science.
He received the 2006 Ernest F. Hollings Award for Excellence in state prosecution that is his profession’s top honor in the State of South Carolina. He received an Outstanding Traffic Safety Prosecutor Award from the National Association of Prosecutor Coordinators in 2006. He received the 2007 Prosecutor of the Year Award from the South Carolina Department of Public Safety. He received the 2010 Criminal Justice Award from the South Carolina Victim Assistance Network (SCVAN) for his work with crime victims and their families. He received the 2013 Solicitor of the Year Award from the South Carolina Victim Advocate Association (SCLEVA). He has taught numerous classes, seminars, and presentations through South Carolina and the Southeast. He has taught Evidence Law and DUI Law at the South Carolina Magistrate Court Orientation School and training seminars (1997-2011). He done presentations at the Death Penalty sections and training (2004-2016) and Driving section (1991- 2016) at the South Carolina Solicitor’s Conferences and Training Sessions. He has made a presentation at Southeast Law Enforcement Training at Lawerenceburg, Tennessee in 2005. He received an award from MADD in 1996 for his traffic prosecution in the Seventh Judicial Circuit. He received the Spartanburg Optimist Club Award for Outstanding Prosecution in 2002. He was a contributing author in Handling Traffic Cases in South Carolina, 4th Edition (2005) and 5th Edition (2012). He also has produced the Case Law on Driving Cases in South Carolina booklet for several years for judges, attorneys, and law enforcement officers through South Carolina.
In his position of Spartanburg County Magistrate Court Judge, he heard over a hundred jury trials including civil and criminal matters. He also heard hundreds of non-jury trials including civil and criminal matters. He was on the Commission of Judicial Conduct for the State of South Carolina involving discipline matters involving judges of all levels from 1997 to 2001.
In his position of Assistant Solicitor, Principal Deputy Solicitor, and Solicitor in the Seventh Judicial Circuit, he has prosecuted hundreds of cases and handled over one hundred trials over all types ranging from DUI to Death Penalty cases.
Susan Barber-Hackett S.C. Commission on Indigent Defense Columbia, SC
Susan Barber Hackett is an Appellate Defender with the Office of Appellate Defense. She represents individuals in their appeals following criminal convictions and in post-conviction relief matters. In 2018, she won the Martha Browning Dicus Award from the Public Defender Association for demonstrating remarkable competence, zeal, and adherence to the ideals of the legal profession. Previously, Ms. Hackett worked at the Office of Disciplinary Counsel where she investigated and prosecuted lawyers for violations of the Rules of Professional Responsibility. She also served as the Executive Director of the Center of Capital Litigation, a non-profit dedicated to the representation of individuals charged with capital crimes. While an associate at Blume, Weyble & Norris, LLC, she represented criminal defendants in state and federal courts. Upon graduating from law school, Ms. Hackett served as a judicial clerk to the Honorable Deadra L. Jefferson in the Ninth Circuit. Ms. Hackett also taught legal writing at the University of South Carolina School of Law as an adjunct professor for two years. She graduated from the University of South Carolina School of Law in 2003, and graduated from Winthrop University in 2000. Ms. Hackett is a regular presenter at Public Defense 101: Fundamentals of the Profession, an annual seminar sponsored by the South Carolina Commission on Indigent Defense. Ms. Hackett is an active member of the South Carolina Bar, serving on the Professional Responsibility Committee, the Law Related Education Committee, the Practice and Procedure Committee, the Trial and Appellate Advocacy Section, and the Fee Disputes Resolution Board.
Breen R. Stevens 1st Judicial Circuit Public Defender’s Office Orangeburg, SC
Breen started his life of public service in the United States Navy, where he was a Crash & Salvage Firefighter on the flight deck of an aircraft carrier. He later graduated the College of Charleston, and then attended Charleston School of Law where he excelled at legal research and writing, and was able to put these skills to practice as a member of the Moot Court Board.
Breen began his professional legal career clerking for Judge Pieper at the South Carolina Court of Appeals. After his clerkship, He worked in Charleston as an associate attorney for Andy Savage practicing criminal law. He then seized the opportunity to follow his passions for both criminal defense and appellate practice, and worked at the Division of Appellate Defense in Columbia. After Appellate Defense, he subsequently went back over to trial work with the First Circuit Public Defender's Office where he is an Assistant Public Defender for Orangeburg County, and the Deputy Public Defender for Calhoun County.
Breen is currently the President of the South Carolina Public Defender’s Association, the Vice President of the South Carolina Association of Criminal Defense Lawyer, and a Council Member of the Criminal Law Section of the South Carolina Bar. He has previously spoken on topics for the Public Defender 101 CLE series, as well as at the South Carolina Bar Convention.
Donald J. Zelenka S.C. Attorney General’s Office Columbia, SC
Donald J. Zenlenka is currently Deputy Attorney General of the Criminal Division. He was the former Chief of Capital and Collateral Litigation in the South Carolina Attorney General’s Office in Columbia, South Carolina. He is a graduate of The Ohio State University (1974) with a B.A. in Economics and the University of South Carolina School Of Law (1977) with a J.D. degree. Mr. Zelenka has been with the Attorney General’s Office since 1979. In 2006, he received the Association of Government Attorneys Award for “Excellence in Appellate Advocacy.” In 2007, he received the Ernest F. Hollings Award for Excellence in State Prosecution. In 2011, he received the Attorney General’s Excellence Award, South Carolina Attorney General’s Office. Mr. Zelenka is also a frequent lecturer on appellate practice in state and national courses.
He currently supervises the state’s prosecution of all criminal appeals, state post-conviction relief proceedings, federal habeas corpus actions and capital litigation, as well as criminal prosecutions handled by the Attorney General’s Office. Mr. Zelenka has personally orally argued six (6) cases before the United States Supreme Court, over one-hundred (100) cases in the United States Court of Appeals for the Fourth Circuit, including ten (10) en banc arguments, and numerous cases in the state appellate courts of South Carolina. He has also prosecuted murder and felony cases in the trial courts of his state.
He was a contributing chapter author of The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy, edited by Ronald H. Clark (2005 Trafford Press). He co-authored with Robert F. Daley, Jr., Making the System Fair and Prompt: Recent Changes in Death Penalty Law, Post Conviction Relief and Federal Habeas Corpus, South Carolina Lawyer, July/August 1997. He also authored “Protecting the Record For Your Capital Case: Keeping the Eye on the Ball - It’s Only The Beginning,” The Practical Prosecutor Magazine, p. 30-39. (2006 - National College of District Attorneys). He was a co-author of South Carolina Appellate Practice (S.C. Bar 1985) (co- author).
Edgar Michael Pinilla Pinilla Law Firm, LLC Columbia, SC
Edgar Michael Pinilla (Mike), a Virginia native, graduated from the Virginia Commmonwealth University in 2004. Mr. Pinilla's interest in law brought him to the Palmetto State where he earned his Juris Doctorate at the University of South Carolina School of Law and was admitted to practice law in 2008. Mr. Pinilla has owned and operated the Pinilla Law Firm since 2012, where he has represented clients from many different countries in immigration and related matters. He represents individuals before the United States Citizenship and Immigration Service as well as various Immigration Courts. Mr. Pinilla also represents clients in state court for a range of civil and criminal matters.
Darra James Coleman South Carolina Department of Labor, Licensing, and Regulations Columbia, SC
Darra James Coleman graduated from the South Carolina Honors College of the University of South Carolina in 1995 and earned her Juris Doctor from the University of South Carolina School of Law in 1998. Following a clerkship with the Honorable Howard P. King, Darra practiced with the law firm of Woods & Givens, LLP for 5 years, with an emphasis on civil litigation involving personal injury, insurance defense and defense of governmental entities. Darra joined the law firm of Rogers Townsend & Thomas, P.C., in 2004, where she later became a shareholder, with a diverse civil litigation and mediation practice. Darra joined the South Carolina Department of Labor, Licensing and Regulation as Chief Advice Counsel in May of 2012, where she serves as policy counsel for the agency and manages the legal team that provides in-house legal services to 42 professional and occupational regulatory boards. Darra has helped professional and occupational licensing boards navigate complicated legal issues such as immigration, telehealth, and interstate licensure compact law, in addition to licensure and disciplinary matters. Darra represents LLR on multiple initiatives, including Governor Haley’s Prescription Drug Abuse Prevention Council, Governor McMaster’s Opioid Emergency Response Task Force and the South Carolina Behavioral Health Coalition and serves as the lay member of DHEC’s Institutional Review Board, which considers requests for research projects involving human subjects. Darra is licensed to practice law in all state and federal courts in the State of South Carolina, the Fourth Circuit Court of Appeals and the United States Supreme Court. She is also a certified family court and circuit court mediator. She is AV rated by Martindale, is a member of the Bar Register of Preeminent Women Lawyers, and has been recognized by her peers in the Greater Columbia Business Monthly magazine’s Legal Elite in the areas of Personal Injury (2010) and Healthcare Law (2018). She is active in the South Carolina Bar, serving on various LRE Committees, and is former president of the Lexington County Bar Association.
Adam Whitsett South Carolina Law Enforcement Division Columbia, SC
EDUCATION: B.A. (History) (with Honors), The Citadel, Charleston, South Carolina (2003). J.D., University of South Carolina School of Law, Columbia, South Carolina (2006). BAR ADMISSIONS: South Carolina (2006) United States District Court, District of South Carolina (2008) PROFESSIONAL EXPERIENCE: General Counsel, South Carolina Law Enforcement Division, Columbia, South Carolina (Present) (advises SLED on all matters, including NICS, Firearms Laws, Expungements, Sex Offender Registry, and FOIA)(also served as SLED's representative on several expungement legislative task forces); Assistant Attorney General, Civil Division, South Carolina Attorney General's Office, Columbia, South Carolina (represented the Office, other state agencies, and other entities on civil and regulatory litigation matters, including expungement litigation; and Litigator, The Finney Law Firm, Inc., Columbia, South Carolina (handled civil, criminal, domestic relations, workers compensation, probate cases, and appeals); TEACHING EXPERIENCE: Presented at numerous CLE programs across the state on the South Carolina Freedom of Information Act, South Carolina's expungement laws, state and federal firearms laws, the South Carolina Sex Offender Registry, law enforcement background checks, video poker and gaming machine litigation, and special searches
Jack E. Cohoon Burnette Shutt McDaniel Columbia, SC
Jack E. Cohoon is Special Counsel at Burnette Shutt & McDaniel, P.A. Prior to joining the firm in January 2020, Jack worked as a legal aid attorney at South Carolina Legal Services for nearly 14 years, where he focused primarily on employment-related legal issues affecting low income South Carolinians. Jack has represented clients in a wide variety of cases to help workers overcome the collateral consequences of contact with the criminal justice system. He developed a clinic model for helping workers with criminal record issues to use tools such as expungement and pardon to overcome barriers to employment. This model is now being used by legal services attorneys throughout the state. In 2012, the South Carolina Supreme Court’s Access to Justice to Commission and the South Carolina Bar Foundation recognized Jack as the Ellen Hines Smith Legal Services Attorney of the Year.
Jack holds a law degree from the University of South Carolina School of Law and a Bachelor of Arts in Political Science and History from the University of Georgia.
Bridget Marie Susan Brown S.C. Appleseed Legal Justice Center Columbia, SC
Bridget Brown is a staff attorney with SC Appleseed Legal Justice Center. Bridget’s work focuses on removing barriers for formerly incarcerated people and making strides in the re-entry field through increased advocacy and criminal justice reform.
Bridget graduated from USC School of Law in 2010 and has continued to pursue her passion, working with underprivileged, underrepresented South Carolinians in the criminal justice field. Bridget started her legal career as Public Defender in Richland County and later went into private practice. When she realized she no longer wanted to practice in the courtroom, she jumped at the opportunity to work at Appleseed, which has allowed her to continue the work she loves with the people she cares about, but on an even broader scale.
Bridget lives in Columbia with her husband and their dog, Wellie. She enjoys spending time with her family, traveling, reading, cooking, and has developed a keen interest in bourbon.
Tricia Phaup SC Coalition Against Domestic Violence & Sexual Assault Columbia, SC
Tricia Phaup, MSW LMSW serves as the Program Coordinator for Training and Events at the South Carolina Coalition Against Domestic Violence and Sexual Assault (SCCADVASA). Her passion for systems work and trauma informed approaches to address Intimate Partner Violence (IPV) has brought her back to this field. She hopes to build synergy within communities and strengthen interdisciplinary teams to address domestic violence and sexual assault in collaboration in order to lessen the prevalence and bring healing to South Carolina. She received her Bachelor of Arts in Psychology from the University of South Carolina and her Masters of Social work from the University of Pennsylvania.
Previously, she served as the director of Medical Case Management for Palmetto Health USC Medical Group at the Immunology Center. In this role, she is responsible for the oversight of staff who provide medical case management for over 3000 persons who were HIV + or living with AIDS in the midlands area. She served on the South Carolina HIV Planning Council, and the SC Ryan White Part B Case Management Workgroup. Additionally, Tricia worked with a team to provide technical assistance and training through a CDC, AIHA and PEPFAR Twinning Grant in partnership with Chreso Ministries in Zambia. She also served as faculty for the HIV Interprofessional Education program through a Ryan White AETC grant.
From 1996- 2009, she served as director for Sexual Health, Violence Prevention & Research at the University of South Carolina’s Student Health Services. In this role, she was responsible for the oversight of campus-wide sexual health, STD/HIV, relationship violence, and sexual assault educational programs.
As a volunteer, she served on the Board of the Harriet Hancock LGBT Center and provided leadership for the Youth OUTLOUD program for LGBTQ youth ages 13-19 from 2011 – 2016. She was awarded the SC Pride Order of the Palmetto in 2012 and the Sexual Trauma Services of the Midlands Outstanding Partnership Award in 2013 for her work with the Harriet Hancock Center LGBTQ Interpersonal Violence Task Force. Tricia believes in a mindfulness approach to her personal and professional life. In her free time, she enjoys playing the guitar and singing for her spiritual community, Jubilee Circle. Drawing, gardening, kayaking and any activity outdoors keeps her grounded.
Patricia S. Ravenhorst SC Coalition Against Domestic Violence & Sexual Assault Columbia, SC
Patricia (Tricia) Ravenhorst serves as the first General Counsel of the SC Coalition Against Domestic Violence & Sexual Assault (SCCADVASA) where she provides legal support for the organization; legal technical assistance and education to SCCADVASA’s 22 member organizations and other professional partners and management of SCCADVASA’s contract and pro bono attorney program. Ms. Ravenhorst has been training attorneys, criminal justice professionals and the community on the unique legal needs of survivors of crime; immigration and human trafficking for over 18 years. Prior to joining SCCADVASA, Tricia served as the Director and Attorney of the SC Victim Assistance Network’s (SCVAN) Immigrant Victim Program, where she established the organization’s specialized legal and supportive services to immigrant survivors of crime and the SC Immigrant Victim Coalition, which brings together professionals throughout the state working with immigrant survivors of domestic violence, sexual assault, child abuse and human trafficking. Prior to joining SCVAN, Ms. Ravenhorst practiced employment and immigration law at the Wyche Law Firm in Greenville, South Carolina. Tricia earned her Juris Doctor and Master of Arts in Political Science/Certification in Latin American Studies from Duke University and her Bachelor of Arts in International Affairs from Florida State University. Table of Contents
South Carolina Legislative Update...... 15 A. Shane Massey
Significant Appellate Decisions from 2019 ...... 20
Hot Ethics Issues for Criminal Practitioners ...... 32
Collateral Consequences: Impact of Convictions on Immigrants and Immigration Status .... 125 Edgar Michael Pinilla
Collateral Consequences: Impact of Convictions on Professional and Occupational Licenses.146 Darra Coleman
Collateral Consequences: Guns and Private Investigator Licenses ...... …..155 Adam Whitsett
Collateral Consequences: Other Impacts of Convictions, including Employment, Education, Voting, Housing, Public Assistance ...... 163 Jack Cohoon
Expungements: The Law and Process ...... …..177 Adam Whitsett
Expungements: Strategic Tips for Preparation of Applications ...... (No Materials) Bridget Brown
Self-Care for Criminal Law Practitioners ...... …..199 Tricia Phaup, Patricia Ravenhorst
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South Carolina Legislative Update
A. Shane Massey
2019 South Carolina Legislation of Interest to Criminal Practitioners Summaries are intended to provide a brief overview of ONLY those portions of the Acts that are relate to criminal law or the criminal justice system. Please review the Acts for a more complete understanding of the legislation. Veto Act Rat. Effective Bill No. Summary Signed Overridden No. No. Date (if applicable) Permanently enacted the “Tucker Hipps Transparency Act” (THT Act) (2016 S.C. Act 265) by repealing the sunset provision (scheduled to sunset or expire on June 29, 2019). The THT Act, contained in S.C. Code Section 59-101-210, requires public 24 R37 H3398 institutions of higher learning (non-technical colleges) to maintain a 4/26/2019 4/26/2019 publicly accessible report of actual findings of violations of the Institution's Conduct of Student Organizations by formally affiliated fraternity and sorority organizations for offenses involving alcohol, drugs, sexual assault, physical assault, and hazing.
• Amended Section 16-17-500 to add new requirements for the shipping of tobacco or alternative nicotine products, increases fines and terms of imprisonment, and make it unlawful for a minor under 18 to enter, unless supervised and accompanied by an adult, a retail establishment that has as its primary purpose the sale of tobacco or alternative nicotine products. 25 R38 H3420 • Changed the definition of “alternative nicotine product” in Section 4/26/2019 4/26/2019 16-17-501(6), replaced the definition of “electronic cigarette” with the definition of “electronic smoking device” in (7), and added definitions for “e-liquid” in (8) and “vapor product” in (9). • Created the new crime of selling, hold for sale, or distribute a container of e-liquid (Section 16-17-506) and provided a definition of “container.”
Totally re-wrote the cigarette stamp statute, Section 12-21-2870, to 35 R48 S310 5/13/2019 5/13/2019 remove the 24-hour and 72-hour minimum holding periods.
S.C. Commission on Prosecution Coordination – 2019 S.C. Legislation of Interest to Criminal Practitioners (2/2020) Page 1 of 4 2019 South Carolina Legislation of Interest to Criminal Practitioners Summaries are intended to provide a brief overview of ONLY those portions of the Acts that are relate to criminal law or the criminal justice system. Please review the Acts for a more complete understanding of the legislation. Veto Act Rat. Effective Bill No. Summary Signed Overridden No. No. Date (if applicable) • Requires that summary court judges must receive at least two hours of instruction on issues concerning animal cruelty every four years (Section 47-1-225). 43 R63 S105 • Creates Section 47-1-145 addressing the custody and care of animals 5/16/2019 5/16/2019 seized after an arrest for a violation of Chapter 1, Title 47 or Chapter 27, Title 16, and the responsibility of a convicted defendant for the custodial costs.
Enacted Section 47-3-980 that makes it a unlawful – but not a crime – for someone to intentionally misrepresent an animal in his possession as a service animal or service animal-in-training for the purpose of 44 R64 S281 obtaining any right or privilege provided to a disabled person if the 5/16/2019 5/16/2019 person knows that the animal in his possession is not a service animal or service animal-in-training; carries a fine; may be charged with a Uniform Traffic Ticket.
Enacted 50-11-546, which imposes a duty upon persons who harvest wild turkeys to electronically report their wild turkey harvest 51 R71 S875 5/16/2019 7/1/2020 and makes the violation of the statute a misdemeanor (punishable by a fine of not more than $25)
• Added Article 20 to Chapter 3, Title 16 – “Female Genital Mutilation.” 71 R91 H3973 • Provides definitions for purposes of the Article (Section 16-3- 5/16/2019 5/16/2019 2210). • Creates the crime of female genital mutilation (Section 16-3-2220) – a felony punishable by a fine of no more than $20,000 or
S.C. Commission on Prosecution Coordination – 2019 S.C. Legislation of Interest to Criminal Practitioners (2/2020) Page 2 of 4 2019 South Carolina Legislation of Interest to Criminal Practitioners Summaries are intended to provide a brief overview of ONLY those portions of the Acts that are relate to criminal law or the criminal justice system. Please review the Acts for a more complete understanding of the legislation. Veto Act Rat. Effective Bill No. Summary Signed Overridden No. No. Date (if applicable) imprisonment of no more than 20 years, or both – and, in Section 16-3-2230, provides and eliminates some defenses to a prosecution. • Enacts Section 16-3-2240 providing that the Article does not prohibit a person from being charged with, convicted of or punished for another violation of law arising out of the same conduct as the violation of this Article.
• Added Article 5 “Cell-Cultured Meat” to Chapter 17, Title 47. • Makes it a crime (misdemeanor carrying fine of not more than $1,000 or imprisonment of not more than one year or both) (Section 47-17-530) to violate Section 47-17-510 by engaging in any 79 R99 H4245 misleading or deceptive practices, labeling, or misrepresenting a 5/16/2019 5/16/2019 product as 'meat' or 'clean meat' that is cell-cultured meat/protein, or is not derived from harvested production livestock, poultry, fish, or crustaceans when advertising, offering for sale, or selling all or part of a carcass. Enacted the Samantha L. Josephson Ridesharing Safety Act that amends Section 58-23-1640 to require that, at the time of a pickup of a transportation network company (TNC) vehicles passenger, a TNC vehicle must display the vehicle's license plate number from the front of the TNC vehicle in a legible, printed font of no less than two inches 82 R102 H4380 in height. The Act also created two misdemeanors: (1) the 5/16/2019 6/15/2019 misrepresentation of oneself as an authorized TNC driver (fine of no more than $500 and/or imprisonment of not more than thirty days); and (2) the use of TNC trade dress or a TNC ridesharing application in the furtherance of a criminal activity (fine of no more than $1,000 and/or imprisonment of not more than two years).
S.C. Commission on Prosecution Coordination – 2019 S.C. Legislation of Interest to Criminal Practitioners (2/2020) Page 3 of 4 2019 South Carolina Legislation of Interest to Criminal Practitioners Summaries are intended to provide a brief overview of ONLY those portions of the Acts that are relate to criminal law or the criminal justice system. Please review the Acts for a more complete understanding of the legislation. Veto Act Rat. Effective Bill No. Summary Signed Overridden No. No. Date (if applicable) Amends Section 16-17-530 (disorderly conduct) to allow those charged with disorderly conduct, who have not previously been convicted of a violation of the statute or any similar offense in any other 90 R105 H3601 6/25/2019 6/25/2019 state or under federal law relating to drunk or disorderly conduct, to be granted a conditional discharge consistent with the conditions set out in the statute upon approval by the Solicitor.
S.C. Commission on Prosecution Coordination – 2019 S.C. Legislation of Interest to Criminal Practitioners (2/2020) Page 4 of 4
Significant Appellate Decisions from 2019
Panel Discussion
“Significant Appellate Decisions from 2019”
During the “Review of 2019 – 2020 Significant Decisions” panel discussion, the speakers will discuss the following decisions. These decisions, issued by the South Carolina appellate courts and the Supreme Court of the United States between January 2019 and February 13, 2020, are those the panelists deem to be the most significant in terms of how they have impacted or will impact criminal practice in South Carolina.
Summaries were prepared primarily by Mark Reynolds Farthing, with contributions by Amie L. Clifford and Stephanie J. Smart-Gittings. Please note that the summaries are only intended to provide the CLE attendees with a basic understanding of the holding relevant to the “topic” (issue) identified by the panelists as the reason for the opinion’s significance. The summaries are not intended to cover all issues or the Court’s complete analysis of the covered issue.
Case Name Issue(s) for which Summary of Holding (and cite/date) Chosen (on the issue(s) for which chosen)
Upholding the qualification of a Laurens police officer as an expert in marijuana identification only, the Court of Appeals found error in the admission of testimony from about the testing of the marijuana analysis and its weight (the witness did not know if the scale used by the State v Herrera, 425 Greenwood Sheriff’s Office, which was S.C. 558, 823 S.E.2d Scope of Expert the agency that performed the testing, 923 (January 30, Testimony had been calibrated and the witness’ 2019) opinion as to his measurement of weight was not based on the actual bags of marijuana involved but on his weighing of an empty bag he thought was similar). The Court found that portion of testimony exceeded the scope of the officer’s area of expertise and required reversal of Herrera’s conviction.
In this case, the Supreme Court of South Carolina unanimously remanded the matter to the circuit court for a new State v. Cervantes- Immunity Pursuant to immunity hearing. In doing so, the Court Pavon, 426 S.C. 442, the Protection of found the circuit court judge’s ruling was 827 S.E.2d 564 (Mar. Persons and Property controlled by multiple errors of law, 27, 2019) Act including the fact the circuit court judge found the testimony did not rise to a level “beyond a preponderance of evidence” sufficient to warrant a grant of immunity. Furthermore, the Court noted the
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Case Name Issue(s) for which Summary of Holding (and cite/date) Chosen (on the issue(s) for which chosen) evidence presented during trial is not relevant to an immunity ruling.
In a 3-2 decision issued in an original jurisdiction action, the South Carolina Supreme Court declined to extend the United States Supreme Court’s holding Constitutionality of Slocumb v. State, 426 in Graham v. Florida, 560 U.S. 48 Aggregate Sentences S.C. 297, 827 S.E.2d (2010), to Slocumb’s 130-Year for Juvenile Non- 148 (April 3, 2019) Aggregate sentence for numerous non- Homicide Offenders homicide offenses Slocumb committed as a juvenile and found Slocumb’s sentence did not categorically violate the Eighth Amendment.
In this case, the Supreme Court of South Carolina, unanimously affirmed Court of Appeals’ decision as modified*, upheld the trial court’s ruling denying Andrews’s motion seeking immunity from prosecution pursuant to the Protection of Persons and Property Act. In doing so, the Court reiterated the existence of conflicting does not automatically require the denial of immunity and the relevant inquiry in immunity cases is whether the accused Immunity Pursuant to proved entitlement to immunity by a State v. Andrews, 427 the Protection of preponderance of the evidence. The S.C. 178, 830 S.E.2d Persons and Property Court further noted the trial court in 12 (May 7, 2019) Act Andrews’s case correctly applied the burden of proof and made findings that supported the denial of immunity. * The Court noted that, to the extent the Court of Appeals relied upon the portion of State v. Curry, 406 S.C. 364, 752 S.E.2d 263 (2013), relating to the directed verdict procedural posture in affirming the trial court’s ruling in Andrews’ case, that portion of the Court of Appeals’ opinion in this matter (found at 424 S.C. 304, 818 S.E.2d 227 (Ct. App. 2018)) is vacated.
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Case Name Issue(s) for which Summary of Holding (and cite/date) Chosen (on the issue(s) for which chosen)
In this case, the Supreme Court of South Carolina unanimously reversed Hamrick’s conviction for felony D.U.I. resulting in great bodily injury after finding the trial judge erred by permitting an officer to give opinion testimony on the subject of accident reconstruction. In doing so, the Court first found the trial judge erred by incorrectly characterizing the officer’s opinion testimony on the location the victim was struck as lay opinion testimony since the officer was not present at the time of the accident Hamrick v. State, 426 and, thus, did not perceive the collision. Qualification of S.C. 638, 828 S.E.2d Next, the Court found the trial judge Expert Witnesses 596 (May 15, 2019) erred by failing to make the necessary findings on the question of whether the officer was qualified to testify as an expert. Finally, the Court found the record did not establish the officer possessed the necessary qualifications because his training was limited to a few courses over a period of several years and included no other training or education that would demonstrate he was qualified to render an opinion on accident reconstruction, which the Court characterized as a highly technical and specialized field.
In a 7-2 decision, the Supreme Court of the United States reaffirmed the continuing validity of the dual sovereignty doctrine and upheld Gamble’s separate convictions under state and federal law for unlawfully Gamble v. United Double Jeopardy and possessing a firearm. In doing so, the States, ___ U.S. ___, the Dual Sovereignty Court continued to recognize two 139 S. Ct. 1960 (June Doctrine offenses are not the same offense for 17, 2019) double jeopardy purposes if they are prosecuted by different sovereigns, which meant Gamble’s state and federal convictions were not unconstitutional even though they both arose from the same act of possessing a firearm.
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Case Name Issue(s) for which Summary of Holding (and cite/date) Chosen (on the issue(s) for which chosen)
In a 3-2 decision, the Supreme Court of South Carolina affirmed Williams’s murder conviction for a killing that happened during the course of a drug transaction after finding the trial judge properly declined to instruct the jury on self-defense. In reaching that conclusion, the majority determined the fact Williams consciously chose to bring a Propriety of a Self- loaded unlawfully-possessed pistol to an State v. Williams, 427 Defense Instruction illegal drug deal constituted a violation of S.C. 246, 830 S.E.2d in a Case Involving a law reasonably caused to produce 904 (June 19, 2019) Drug Transaction violence, and, thus, Williams was not entitled to a self-defense instruction since he was not without fault for the difficulty in which he claimed to have acted in self- defense. Notably though, the majority recognized some future case with different facts could potentially lead to a defendant convincing a trial judge he was not without fault in bringing on the violent occasion.
In a 7-2 decision, the Supreme Court of United States reversed Flowers’s murder convictions from his sixth trial after finding the prosecutor who tried Flowers in all his trials exercised peremptory strikes in a racially-discriminatory manner during the jury selection process in the latest trial. In reaching that conclusion, the Court looked to the Flowers v. Racial totality of the circumstances involved, Mississippi, ___ U.S. Discrimination including the state’s discriminatory ___, 139 S. Ct. 2228 During Jury manner of striking jurors in the earlier (June 21, 2019) Selection trials, the prosecutor’s striking of all but one black juror in the sixth trial, the prosecutor’s “dramatically disparate” questioning of black and white jurors during the selection process, the placement of similarly-situated white jurors on the jury, and the fact the prosecutor repeatedly provided factually- inaccurate reasons for striking black jurors.
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Case Name Issue(s) for which Summary of Holding (and cite/date) Chosen (on the issue(s) for which chosen)
In this case, the United States Supreme Court addressed the circumstances under which a warrantless blood test can be conducted on an unconscious driver suspected of DUI. A four-justice plurality found the emergency situation created by an unconscious driver who was incapable of submitting to a breath test “almost always” will permit a warrantless blood test without violating the Fourth Amendment due to the exigent circumstances involved. One justice Reasonableness of Mitchell v. Wisconsin, concurred only in the judgment and Warrantless blood ___ U.S. ___, 139 S. would have adopted a per se rule the draws of Ct. 2525 (June 27, natural metabolization of alcohol in the Unconscious Drivers 2019) human body always creates an exigency in DUI. Cases when probable cause of DUI exists. Meanwhile, four justices dissented. Three justices criticized the Plurality’s holding, stressed the dispositive question was whether it was possible to get a warrant, and noted Wisconsin had not sought to rely on exigent circumstances to justify the warrantless search. One justice dissented on the basis the only matter properly before the Court was the question of whether implied consent justified the search.
In a 4-1 Decision, the Supreme Court of South Carolina reversed Cross’s convictions for first-degree criminal sexual conduct with a minor and committing a lewd act on a minor after Bifurcation in finding the trial judge committed an error Prosecutions for of law by refusing to bifurcate the trial to First-Degree State v. Cross, 427 prevent evidence of Cross’s prior Criminal Sexual S.C. 465, 832 S.E.2d conviction for a sex offense, which was Conduct with a 281 (July 24, 2019) necessary to prove one of the elements of Minor Pursuant to the indicted offense, from being Section 16-3- presented to the jury until after it first 655(a)(2) determined Cross’s guilt for all the other required elements of the offense. In reaching that conclusion, the majority determined Rule 611(a) of the South Carolina Rules of Evidence permits the bifurcation of a criminal trial and such
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Case Name Issue(s) for which Summary of Holding (and cite/date) Chosen (on the issue(s) for which chosen) bifurcation is required in the context of a prosecution under Section 16-3- 655(a)(2) in order to eliminate the potential for undue prejudice that could result from the evidence of a prior conviction for a sex offense.
In this case, the Supreme Court of South Carolina unanimously reversed Burdette’s convictions for voluntary manslaughter as a lesser-included offense of murder and possession of a weapon during the commission of a violent crime based on the trial judge’s presentation of a jury instruction indicating malice may be inferred from the use of a deadly weapon. In reversing, the Court found the instruction was improper because Jury Instructions on evidence was presented at trial tending to State v. Burdette, 427 Inferring Malice reduce, mitigate, excuse, or justify S.C. 490, 832 S.E.2d from the Use of a Burdette’s killing of his victim. 575 (July 31, 2019) Deadly Weapon Likewise, the Court found the instruction was prejudicial due to the confusion that resulted from the trial judge’s failure to explain malice was not an element of voluntary manslaughter, which allowed the jury to use the improper malice instruction to convict Burdette of voluntary manslaughter. Beyond that, the Court held trial judges in our state should no longer instruct juries malice may be inferred from the use of a deadly weapon in any case going forward.
State v. Bowers, 428 S.C. 21, 832 S.E.2d Court erred in charging mutual combat 623 (Ct. App. August Mutual Combat because there was no evidence to support 7, 2019). (Petition the charge for Writ of Certiorari pending).
In a 4-1 decision, the Supreme Court of Pantovich v. State, Jury Instructions on South Carolina reconsidered the issue of 427 S.C. 555, 832 Good Character whether a jury instruction on good S.E.2d 596 (August Evidence character evidence indicating such 7, 2019) evidence alone can create a doubt as to guilt is proper under South Carolina law
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Case Name Issue(s) for which Summary of Holding (and cite/date) Chosen (on the issue(s) for which chosen) and determined such an instruction is now improper. However, the majority nonetheless affirmed the grant of post- conviction relief to Pantovich, which was based on appellate counsel’s failure to raise an issue in regard to the trial judge’s failure to give such a charge, in light of the propriety of the post-conviction relief judge’s ruling based on the law in effect at the time it was issued.
In the trial of this CSC with a minor case, the therapist who treated the victim was qualified as an expert in the treatment of child trauma and child sexual abuse dynamics. She first testified about symptoms child sexual assault victims may exhibit, delayed disclosure and piecemeal disclosure, and therapeutic treatment of child victims of sexual abuse. She then testified she treated the victim, the victim disclosed she had been abused, and how the victim disclosed (which matched up to one of the ways the expert previously said child sexual victims disclose). State v Makins, 428 S.C. 440, 835 S.E.2d The Court found that the expert’s Improper opinion 532 (Ct. App. testimony was akin to that of a forensic Testimony in child September 4, 2019) interviewer rather than a blind expert, CSC case (Petition for Writ of and her opinion testimony about the Certiorari pending) manifestations of child sexual abuse followed immediately by her testimony about treating the victim, implied that she believed the victim was telling the truth and indirectly, but improperly, bolstered the victim’s testimony. The Court of Appeals reiterated that assessment of a witness’ credibility is exclusively within the province of the jury. A witness may not testify, either directly or indirectly, that a victim is telling the truth or that she believes the victim. The Court of Appeals reversed Makins’ conviction for third degree CSC with a
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Case Name Issue(s) for which Summary of Holding (and cite/date) Chosen (on the issue(s) for which chosen) minor and remanded the case for a new trial.
In this case, the South Carolina Supreme Court unanimously held statutory assault and battery of a high and aggravated nature is not a lesser-included offense of criminal sexual conduct crimes following Statutory Assault State v. Hernandez, the codification of the various common- Offenses as Lesser- 428 S.C. 257, 834 law assault and battery offenses as Included Offenses of S.E.2d 462 (October statutory crimes. In reaching that Criminal Sexual 23, 2019) conclusion, the Court noted the Conduct Crimes Legislature specified the offenses to which the various statutory assault and battery offenses were lesser-included offenses and omitted any criminal sexual conduct crimes.
In this case, the South Carolina Supreme Court unanimously held the mandatory minimum sentence provision of the state’s murder statute was constitutional Constitutionality of State v. Smith, 428 as applied to juveniles pursuant to the Mandatory Minimum S.C. 417, 836 S.E.2d Eighth Amendment. In reaching that Sentences for 348 (November 20, conclusion, the Court explained it would Juvenile Homicide 2019) not extend the rationale of the holdings of Offenders the United States Supreme Court, which had not yet directly addressed the constitutionality of mandatory minimum sentences for juvenile offenders.
Chappell was charged with and tried for 1st degree CSC with a minor and lewd act on a minor. At trial, without objection from the defense, the State’s expert testified that, while children lie, “children Chappell v. State, Op. don’t often lie about sexual abuse No. 5704 (Ct. App. Improper opinion incidents.” The jury found Chappell Filed December 31, Testimony in child guilty as charged. 2019) (pending on CSC case On appeal, Chappell’s argument that the rehearing). expert’s testimony constituted improper vouching evidence was rejected. Chappell then applied for PCR based on trial counsel’s failure to object when the expert gave improper bolstering evidence. His application was denied,
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Case Name Issue(s) for which Summary of Holding (and cite/date) Chosen (on the issue(s) for which chosen) and he appealed. The Court of Appeals found trial counsel ineffective for failing to object to this testimony, which constituted improper witness bolstering. Assessment of witness credibility is within the exclusive province of the jury, and no witness may give testimony that improperly bolsters the credibility of a victim. Improper bolstering is “testimony that indicates the witness believes the victim, but does not serve some other valid purpose.” Improper bolstering also occurs when a witness testifies for the purpose of informing the jury that the witness believes the victim, or when there is no other way to interpret the testimony other than to mean the witness believes the victim is telling the truth. However, an expert's testimony is not improper bolstering “when the expert witness gives no indication about the victim's veracity ....” Id., at 4-5. Reviewing recent decisions on bolstering in child sexual cases, the Court noted our Supreme Court has recognized the potential risk for the State in calling an expert who interviewed or treated a victim before trial, rather than an independent expert. While “…an independent expert does not improperly bolster the victim's credibility by testifying to only general behavioral characteristics of child sexual abuse victims…. the testimony of an independent expert, like the testimony of any witness, is improper bolstering if (1) the witness directly states an opinion about the victim's credibility, (2) the sole purpose of the testimony is to convey the
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Case Name Issue(s) for which Summary of Holding (and cite/date) Chosen (on the issue(s) for which chosen) witness's opinion about the victim's credibility, or (3) there is no way to interpret the testimony other than to mean the witness believes the victim is telling the truth.” Id., at 6. The Court concluded that much of the expert’s testimony was proper general behavioral testimony needed to explain the unexpected behavior of child victims. However, her testimony that children don’t often lie about sexual abuse was a comment on the victim’s credibility that constituted improper bolstering and invaded the province of the jury. And, because the outcome of the trial hinged on credibility of the victim, trial counsel was ineffective for failing to object to the expert’s testimony that children don’t often lie about sexual abuse. Chappell’s convictions were reversed, and case was remanded for a new trial.
“Today, we hold mutual combat can properly serve as the basis for a murder charge for the death of a non-combatant under the "hand of one is the hand of all" theory of accomplice liability. When two or more individuals engage in combat via a reckless shootout, they collectively trigger an escalating chain reaction that creates a high risk to any human life falling within the field of fire. In that type State v. Young, Op. of gunfight, all individuals are willing to No. 27942 (S.C.S. Accomplice Liability use lethal force and display a depraved Ct. February 5, 2020) indifference to human life. More importantly, an innocent bystander would not be shot but for the willingness of all combatants to turn an otherwise peaceful environment, often a residential or commercial setting, into a battlefield. In a real sense, each combatant aids and encourages all of the other combatants— whether friend or foe—to create the lethal crossfire.” Id., at 2.
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Case Name Issue(s) for which Summary of Holding (and cite/date) Chosen (on the issue(s) for which chosen)
In a 3-2* opinion, the Supreme Court of South Carolina, reversing the Court of Appeals, held the record supported the trial court’s determination that the stop of Spears was a consensual encounter, Spears was not seized until he was frisked, and the frisk was justified. The Court refused to adopt the probative factors test for whether a seizure has occurred the Court of Appeals enumerated in State v. Williams, 351 S.C. 591, 600, 571 S.E.2d 703, 708 (Ct. App. 2002) but acknowledged that many of the factors might be relevant in the broader analysis of the totality of circumstances. The Court noted that neither the act of State v. Spears, Op. Search and Seizure – walking briskly behind a person or the 27945 (S.C.S. Ct. Stop and Frisk asking of incriminating questions by law February 12, 3030) enforcement automatically triggers Fourth Amendment protections. The majority looked to whether race is a factor to be considered in determining whether an encounter with law enforcement is consensual but concluded it not need to consider such because the issue had not been raised below or on appeal. There is an interesting discussion of the issue in both the majority and dissenting opinions. *The opinion appears at first glance to be a plurality opinion, but the separate concurrence of Justice Hearn does not disagree with the majority’s analysis or conclusion.
PENDING APPELLATE CASES TO WATCH
State v Smith, 425 S.C. 20, 819 S.E.2d 187 (Ct. App. August 15, 2018) (Certiorari granted Inferred malice (“felony murder”) jury July 1, 2019 – oral argument December 12, charge 2019).
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Hot Ethics Issues for Criminal Practitioners
Panel Discussion
“Hot Ethics Issues for Criminal Practitioners” “29th Annual Criminal Practice in South Carolina” CLE Program (February 28, 2020)
Set out below are several “hot” issues for criminal law practitioners identified by Solicitor Barry J. Barnette, Amie L. Clifford, Susan B. Hackett, and Don J. Zelenka. Time restraints will limit the panel’s discussion, but information has been provided on each to provide a starting point for those wishing to study the issues that are not covered.
ISSUES SOUTH CAROLINA RULE OF PROFESSIONAL CONDUCT (RULE 407, SCACR) (not listed in any particular order) AND/OR OTHER AUTHORITY
Rules 4.2 and 8.4(e); S.C. Bar Eth. Adv. Op. 98-25 (“A lawyer for one party may not discuss his client's case with another party, who is also represented by a lawyer, unless the lawyer has the other counsel's consent or is authorized by law or rule to do so.”); In re Smith, 821 So. 2d 1286 (La. 2002) Communication by Defense Counsel with (“Smith’s engagement in improper communication with represented co-defendant was in violation of Represented Co-Defendant or Other Rules 4.2, 8.4(a), 8.4(c), and 8.4(d), RPC); Attorney Grievance Com’n v. Kent, 337 Md. 361, 653 Person without Counsel’s Consent A.2d 909 (1995) (lawyer’s communication with his client’s represented cooperating co-defendant, which resulted in co-defendant backing out of plea agreement, violated Rules 1.7, 3.3(a), 3.4(c), 4.2, and 8.4(d), RPC).
Rules 3.4(a), (d) and (e), 3.8(d), and 8.4 (e); In the Matter of Humphries, Jr., 354 S.C. 567, 582 S.E.2d Brady Violations and Discovery Issues 728 (2003); In the Matter of Grant, 343 S.C. 528, 541 S.E.2d 540 (2001).
Prosecution Obligations in Negotiating a Rule 3.8 (b), (c), and (d), and Comments [1] and [2], and Rule 4.3 and Comments [1] and [2]; ABA Guilty Plea with a Pro Se Defendant Formal Opinion 486 (May 9, 2019), VA Legal Eth. Op. 1876 (2015).
Rule 3.4 (a) and Comment [2], CA. Eth. Op. 1984-76 (physical evidence of crime over which lawyer has taken possession is not protected by attorney-client privilege and must be disclosed to the Defense Counsel Possession of Evidence prosecution); Co. Bar Formal Eth. Op. 60 (1982) (duty with respect to client's incriminating physical evidence). See also S.C. Bar Eth. Adv. Op. 89-02 (lawyer would violate contraband possession laws if took possession of narcotic drugs given to him by client to be used as evidence). “Hot Ethics Issues for Criminal Practitioners” “29th Annual Criminal Practice in South Carolina” CLE Program (February 28, 2020)
ISSUES SOUTH CAROLINA RULE OF PROFESSIONAL CONDUCT (RULE 407, SCACR) (not listed in any particular order) AND/OR OTHER AUTHORITY
Lawyers Revealing Cases They Have Handled – Even by Citation – without Rule 1.6, Comment [7] (NEW in 2019). Client Consent
Impact of Receipt or Non-Receipt of Fees In the Matter of N. Douglas Brannon, Op. No. 27933 (S.C. Sup. Ct. filed Dec. 18, 2019) on Obligations to Clients once Retained
Rule 13, SCRCrimP; In the Matter of Owen, 422 S.C. 16, 809 S.E.2d 231 (2018); In the Matter of Lundgren, 421 S.C. 300, 806 S.E.2d 125 (2017); In the Matter of Fabri, 418 S.C. 384, 793 S.E.2d Mis-Use of Subpoenas duces Tecum 306 (2016); S.C. Bar Eth. Adv. Comm. Op. 01-05 (efforts to obtain or serve improper subpoena may violate Rule 8.4(g), SCRPC, and another prosecutor’s knowing use of information obtained by another’s improper subpoena would result in violation of Rules 5.1(c)(1) and 8.4(a)).
Rules 1.6; In re: Perricone, 263 So. 3d 309 (S. Ct. La. 2018) (prosecutor violated Rule 1.7(a)(2), 3.6, 3.8(f), and 8.4(a) and (d) RPC, by using a fictitious name and other identities to post comments on local newspaper’s website, including posts about cases being prosecuted by his office); Frank Arthur Smith, III (Public Reprimand No. 2019-16, 2019 WL 6695552 (Ma. St. Bar. Disp. Bd November 6, 2019) (attorney violated Rule 1.6(a) by posting information about a client’s case – with no names – on social media); In the Matter of Quitschau, Cause No. 61330, 2018 WL 6815225 (Texas Bd. Disp. Lawyers and Social Media App. December 12, 2018) (lawyer violated Rule 8.4(c), IRPC, by registering another lawyer on five websites, creating a false Facebook account, and wrote false reviews of the attorney’s legal abilities on three other websites); In re McCool, 172 So. 3d 1058 (S. Ct. La. 2015) (attorney disbarred for using Internet and social media to public in improper ex parte campaign to influence judges in child custody case); CA Eth. Op. 2016-196 (Cal. St. Bar. Comm. Prof. Resp.) (addressing types of blog or blog posts that may fall within the ambit of the Rules of Professional Conduct and statutes related to attorney advertising).
EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
PREAMBLE: A LAWYER'S RESPONSIBILITIES [1] A lawyer, being a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. [2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others. [3] In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4. [4] In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. [5] A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process. [6] As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. [7] Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service. [8] A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private. [9] In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. [10] The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts. [11] To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice. [12] The legal profession's relative autonomy carries with it special responsibilities of self- government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. [13] Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.
SCOPE [1] The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may," are permissive and define EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
areas under the Rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role. Many of the Comments use the term "should." Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules. [2] The Rules presuppose a larger legal context shaping the lawyer's role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are sometimes used to alert lawyers to their responsibilities under such other law. [3] Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law. [4] Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 1.18. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact. [5] Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state's attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority. [6] Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations. [7] Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct. [8] The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The Preamble and this note on Scope provide general orientation. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.
RULE 1.1: COMPETENCE A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Comment Legal Knowledge and Skill [1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances. [2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question. [3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client's interest. [4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 6.2. EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
Thoroughness and Preparation [5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c). Maintaining Competence [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including a reasonable understanding of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit information related to the representation of a client, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. Amended by Order dated November 27, 2019.
RULE 1.3: DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client. Comment [1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. [2] A lawyer's work load must be controlled so that each matter can be handled competently. [3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness. A lawyer's duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client. [4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer should consult with the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 1.2. [5] To prevent neglect of client matters in the event of a practitioner's death or disability, it is the better practice, and the duty of diligence may require, that each lawyer or law firm prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. See Rule 1.19. Amended by Order dated February 11, 2013, effective July 1, 2013.
RULE 1.4: COMMUNICATION (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(g), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comment [1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation. Communicating with Client [2] If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client's consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a). [3] Paragraph (a)(2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client's objectives. In some situations–depending on both the importance of the action under consideration and the feasibility of consulting with the client– this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client's behalf. Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation. [4] A lawyer's regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. A lawyer should promptly respond to or acknowledge client communications. Explaining Matters [5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(g). [6] Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client. Withholding Information [7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders. Last amended by Order dated August 10, 2016.
RULE 1.5: FEES (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall be communicated to the client, preferably in writing. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses the client will be expected to pay. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge, or collect: EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof, provided that a lawyer may charge a contingency fee in collection of past due alimony or child support; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable. (f) A lawyer may charge an advance fee, which may be paid in whole or in part in advance of the lawyer providing those services, and treat the fee as immediately earned if the lawyer and client agree in advance in a written fee agreement which notifies the client: (1) of the nature of the fee arrangement and the scope of the services to be provided; (2) of the total amount of the fee and the terms of payment; (3) that the fee will not be held in a trust account until earned; (4) that the client has the right to terminate the lawyer-client relationship and discharge the lawyer; and (5) that the client may be entitled to a refund of all or a portion of the fee if the agreed- upon legal services are not provided. Comment Reasonableness of Fee and Expenses [1] Paragraph (a) requires that lawyers charge fees that are reasonable under the circumstances. The factors specified in (1) through (8) are not exclusive. Nor will each factor be relevant in each instance. The South Carolina version of the rule differs from the Model Rule by making the test in paragraph (a)(2) objective rather than subjective. Paragraph (a) also requires that expenses for which the client will be charged must be reasonable. A lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer. Basis or Rate of Fee [2] When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee and the expenses for which the client will be responsible. In a new client-lawyer relationship, however, an understanding as to fees and expenses must be promptly established, preferably in writing. Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer's customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
costs, expenses or disbursements in the course of the representation. A written statement concerning the terms of the engagement reduces the possibility of misunderstanding. [3] Contingent fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the factors that are relevant under the circumstances. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage allowable, or may require a lawyer to offer clients an alternative basis for the fee. Applicable law also may apply to situations other than a contingent fee, for example, government regulations regarding fees in certain tax matters. Terms of Payment [4] A lawyer may require advance payment of a fee, but is obliged to return any unearned portion. A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(i). However, a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often have the essential qualities of a business transaction with the client. [5] An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client's interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client's ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures. Prohibited Contingent Fees [6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post- judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns. Division of Fee [7] A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee either on the basis of the proportion of services they render or each lawyer assumes responsibility for the representation as a whole. In addition, the client must agree to the arrangement, including the share that each lawyer is to receive, and the agreement must be confirmed in writing. Contingent fee agreements must be in a writing signed by the client and must otherwise comply with paragraph (c) of this Rule. Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership. A lawyer who assumes joint responsibility should be EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
available to both the client and the other fee-sharing lawyer as needed throughout the representation and should remain knowledgeable about the progress of the legal matter. A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter. See Rule 1.1. [8] Paragraph (e) does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm. Also, when a client has hired two or more lawyers in succession on a matter and later refuses to consent to a discharged lawyer receiving an earned share of the legal fee, paragraph (e) should not be applied to prevent a lawyer who has received a fee from sharing that fee with the discharged lawyer to the extent that the discharged lawyer has earned the fee for work performed on the matter and is entitled to payment. Disputes over Fees [9] If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the bar, the lawyer must comply with the procedure when it is mandatory, and, even when it is voluntary, the lawyer should conscientiously consider submitting to it. See Rule 416, SCACR. Law may prescribe a procedure for determining a lawyer's fee, for example, in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure. Payment of Fees in Advance of Providing Services [10] A lawyer may treat a fee paid in advance of providing services as the property of the lawyer and deposit the fee in the lawyer's operating account, rather than hold the fee in trust, if the client agrees in a written fee agreement which complies with Paragraph (f)(1) through (5), and the fee is reasonable under the factors listed in Rule 1.5(a). The language describing such arrangements varies, and includes terms such as flat fee, fixed fee, earned on receipt, or nonrefundable retainer, but all such fees are subject to refund if the lawyer fails to perform the agreed-upon legal services. [11] When the lawyer has regularly represented a particular client, the written fee requirement in Paragraph (f) may be satisfied by a single agreement with the particular client that is applicable to multiple current or future matters or files, without the need for the lawyer and client to enter into a new written agreement for each individual matter. Amended by Order dated July 30, 2012.
RULE 1.6: CONFIDENTIALITY OF INFORMATION (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a criminal act; EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
(2) to prevent reasonably certain death or substantial bodily harm; (3) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (4) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (5) to secure legal advice about the lawyer's compliance with these Rules; (6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; (7) to comply with other law or a court order; or (8) to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. Comment [1] This Rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer's representation of the client. See Rule 1.18 for the lawyer's duties with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer's duty not to reveal information relating to the lawyer's prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for the lawyer's duties with respect to the use of such information to the disadvantage of clients and former clients. [2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation. See Rule 1.0(g) for the definition of informed consent. Confidentiality contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. [3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope. [4] The requirement of maintaining confidentiality of information relating to representation applies to government lawyers who may disagree with the policy goals that their representation is designed to advance. [5] Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. Authorized Disclosure [6] Except to the extent that the client's instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers. [7] Disclosure of information related to the representation of a client for the purpose of marketing or advertising the lawyer's services is not impliedly authorized because the disclosure is being made to promote the lawyer or law firm rather than to carry out the representation of a client. Although other Rules govern whether and how lawyers may communicate the availability of their services, paragraph (a) requires that a lawyer obtain informed consent from a current or former client if an advertisement reveals information relating to the representation. This restriction applies regardless of whether the information is contained in court filings or has become generally known. See Comment [3]. It is important the client understand any material risks related to the lawyer revealing information when the lawyer seeks informed consent in accordance with Rule 1.0(g). A number of factors may affect a client's decision to provide informed consent, including the client's level of sophistication, the content of any lawyer advertisement and the timing of the request. General, open-ended consent is not sufficient. Disclosure Adverse to Client [8] Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. The lawyer may learn that a client intends prospective conduct that is criminal. As stated in paragraph (b)(1), the lawyer has professional discretion to reveal information in order to prevent such consequences. Paragraph (b)(2) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
discharged toxic waste into a town's water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life- threatening or debilitating disease and the lawyer's disclosure is necessary to eliminate the threat or reduce the number of victims. [9] Paragraph (b)(3) does not limit the breadth of Paragraph (b)(1), but describes one specific example of a situation in which disclosure is permitted to prevent a criminal act by the client. Paragraph (b)(3) is a limited exception to the rule of confidentiality that permits the lawyer to reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or fraud, as defined in Rule 1.0(e), that is reasonably certain to result in substantial injury to the financial or property interests of another and in furtherance of which the client has used or is using the lawyer's services. Such a serious abuse of the client-lawyer relationship by the client forfeits the protection of this Rule. The client can, of course, prevent such disclosure by refraining from the wrongful conduct. Although paragraph (b)(3) does not require the lawyer to reveal the client's misconduct, the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. See Rule 1.2(d). See also Rule 1.16 with respect to the lawyer's obligation or right to withdraw from the representation of the client in such circumstances, and Rule 1.13(c), which permits the lawyer, where the client is an organization, to reveal information relating to the representation in limited circumstances. [10] Paragraph (b)(4) addresses the situation in which the lawyer does not learn of the client's crime or fraud until after it has been consummated. Although the client no longer has the option of preventing disclosure by refraining from the wrongful conduct, there will be situations in which the loss suffered by the affected person can be prevented, rectified or mitigated. In such situations, the lawyer may disclose information relating to the representation to the extent necessary to enable the affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses. Paragraph (b)(4) does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense. [11] A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(5) permits such disclosure because of the importance of a lawyer's compliance with the Rules of Professional Conduct. [12] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(6) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced. [13] A lawyer entitled to a fee is permitted by paragraph (b)(6) to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary. Detection of Conflicts of Interest [14] Paragraph (b)(8) recognizes that lawyers in different firms may need to disclose limited information to each other to detect and resolve conflicts of interest, such as when a lawyer is considering an association with another firm, two or more firms are considering a merger, or a lawyer is considering the purchase of a law practice. See Rule 1.17, Comment [6]. Under these circumstances, lawyers and law firms are permitted to disclose limited information, but only once substantive discussions regarding the new relationship have occurred. Any such disclosure should ordinarily include no more than the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated. Even this limited information, however, should be disclosed only to the extent reasonably necessary to detect and resolve conflicts of interest that might arise from the possible new relationship. Moreover, the disclosure of any information is prohibited if it would compromise the attorney-client privilege or otherwise prejudice the client (e.g., the fact that a corporate client is seeking advice on a corporate takeover that has not been publicly announced; that a person has consulted a lawyer about the possibility of divorce before the person's intentions are known to the person's spouse; or that a person has consulted a lawyer about a criminal investigation that has not led to a public charge). Under those circumstances, paragraph (a) prohibits disclosure unless the client or former client gives informed consent. A lawyer's fiduciary duty to the lawyer's firm may also govern a lawyer's conduct when exploring an association with another firm and is beyond the scope of these Rules. [15] Any information disclosed pursuant to paragraph (b)(8) may be used or further disclosed only to the extent necessary to detect and resolve conflicts of interest. Paragraph (b)(8) does not restrict the use of information acquired by means independent of any disclosure pursuant to paragraph (b)(8). Paragraph (b)(8) also does not affect the disclosure of information within a law firm when the disclosure is otherwise authorized, see Comment [6], such as when a lawyer in a firm discloses information to another lawyer in the same firm to detect and resolve conflicts of interest that could arise in connection with undertaking a new representation. [16] Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this Rule and requires disclosure, paragraph (b)(7) permits the lawyer to make such disclosures as are necessary to comply with the law. [17] A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(7) permits the lawyer to comply with the court's order. [18] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable. [19] Paragraph (b) permits but does not require the disclosure of information relating to a client's representation to accomplish the purposes specified in paragraphs (b)(1) through (b)(7). In exercising the discretion conferred by this Rule, the lawyer may consider such factors as the nature of the lawyer's relationship with the client and with those who might be injured by the client, the lawyer's own involvement in the transaction and factors that may extenuate the conduct in question. A lawyer's decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be required, however, by other Rules. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule. See Rule 3.3(c). Acting Competently to Preserve Confidentiality [20] Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer's efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer's ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client's information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. [21] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule. Whether a lawyer may be required to take additional steps in order to comply with other law, such as state and federal laws that govern data privacy, is beyond the scope of these Rules. Former Client [22] The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client. Last amended by Order dated November 27, 2019.
RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. Comment General Principles [1] Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. Concurrent conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person or from the lawyer's own interests. For specific Rules regarding certain concurrent conflicts of interest, see Rule 1.8. For former client conflicts of interest, see Rule 1.9. For conflicts of interest involving prospective clients, see Rule 1.18. For definitions of "informed consent" and "confirmed in writing," see Rule 1.0(g) and (b). EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
[2] Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and 4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing. The clients affected under paragraph (a) include both of the clients referred to in paragraph (a)(1) and the one or more clients whose representation might be materially limited under paragraph (a)(2). [3] A conflict of interest may exist before representation is undertaken, in which event the representation must be declined, unless the lawyer obtains the informed consent of each client under the conditions of paragraph (b). To determine whether a conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. See also Comment to Rule 5.1. Ignorance caused by a failure to institute such procedures will not excuse a lawyer's violation of this Rule. As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.3 and Scope. [4] If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b). See Rule 1.16. Where more than one client is involved, whether the lawyer may continue to represent any of the clients is determined both by the lawyer's ability to comply with duties owed to the former client and by the lawyer's ability to represent adequately the remaining client or clients, given the lawyer's duties to the former client. See Rule 1.9. See also Comments [5] and [27]. [5] Unforeseeable developments, such as changes in corporate and other organizational affiliations or the addition or realignment of parties in litigation, might create conflicts in the midst of a representation, as when a company sued by the lawyer on behalf of one client is bought by another client represented by the lawyer in an unrelated matter. Depending on the circumstances, the lawyer may have the option to withdraw from one of the representations in order to avoid the conflict. The lawyer must seek court approval where necessary and take steps to minimize harm to the clients. See Rule 1.16. The lawyer must continue to protect the confidences of the client from whose representation the lawyer has withdrawn. See Rule 1.9(c). Identifying Conflicts of Interest: Directly Adverse [6] Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client's informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client's case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer's interest in retaining the current client. Similarly, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients. [7] Directly adverse conflicts can also arise in transactional matters. For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the informed consent of each client. Identifying Conflicts of Interest: Material Limitation [8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer's ability to recommend or advocate all possible positions that each might take because of the lawyer's duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Lawyer's Responsibilities to Former Clients and Other Third Persons [9] In addition to conflicts with other current clients, a lawyer's duties of loyalty and independence may be materially limited by responsibilities to former clients under Rule 1.9 or by the lawyer's responsibilities to other persons, such as fiduciary duties arising from a lawyer's service as a trustee, executor or corporate director. Personal Interest Conflicts [10] The lawyer's own interests should not be permitted to have an adverse effect on representation of a client. For example, if the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. Similarly, when a lawyer has discussions concerning possible employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the lawyer's representation of the client. In addition, a lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest. See Rule 1.8 for specific Rules pertaining to a number of personal interest conflicts, including business transactions with clients. See also Rule 1.10 (personal interest conflicts under Rule 1.7 ordinarily are not imputed to other lawyers in a law firm). Interest of Person Paying for a Lawyer's Service [11] A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty or independent judgment to the client. See Rule 1.8(f). If acceptance of the payment from any other source presents a significant risk that the lawyer's representation of the client will be materially limited by the lawyer's own interest in accommodating the EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
person paying the lawyer's fee or by the lawyer's responsibilities to a payer who is also a co- client, then the lawyer must comply with the requirements of paragraph (b) before accepting the representation, including determining whether the conflict is consentable and, if so, that the client has adequate information about the material risks of the representation. Prohibited Representations [12] Ordinarily, clients may consent to representation notwithstanding a conflict. However, as indicated in paragraph (b) some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent. When the lawyer is representing more than one client, the question of consentability must be resolved as to each client. [13] Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest. Thus, under paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. See Rule 1.1 (competence) and Rule 1.3 (diligence). [14] Paragraph (b)(2) describes conflicts that are nonconsentable because the representation is prohibited by applicable law. For example, in some states substantive law provides that the same lawyer may not represent more than one defendant in a capital case, even with the consent of the clients, and under federal criminal statutes certain representations by a former government lawyer are prohibited, despite the informed consent of the former client. In addition, decisional law in some states limits the ability of a governmental client, such as a municipality, to consent to a conflict of interest. [15] Paragraph (b)(3) describes conflicts that are nonconsentable because of the institutional interest in vigorous development of each client's position when the clients are aligned directly against each other in the same litigation or other proceeding before a tribunal. Whether clients are aligned directly against each other within the meaning of this paragraph requires examination of the context of the proceeding. Although this paragraph does not preclude a lawyer's multiple representation of adverse parties to a mediation (because mediation is not a proceeding before a "tribunal" under Rule 1.0(q)), such representation may be precluded by paragraph (b)(1). Informed Consent [16] Informed consent is defined in Rule 1.0(g). The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information should include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney- client privilege and the advantages and risks involved. See Comments [28] and [29] (effect of common representation on confidentiality). [17] Under some circumstances it may be impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. In some cases the alternative to common representation can be that each party may have to obtain separate EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
representation with the possibility of incurring additional costs. These costs, along with the benefits of securing separate representation, are factors that may be considered by the affected client in determining whether common representation is in the client's interests. Consent Confirmed in Writing [18] Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0(b). See also Rule 1.0(r) (writing includes electronic transmission). If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See Rule 1.0(b). The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns. The better practice is to include within any writing the risks, advantages and alternatives discussed as a matter of full disclosure. Rather, the writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing. Revoking Consent [19] A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer's representation at any time. Whether revoking consent to the client's own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other clients and whether material detriment to the other clients or the lawyer would result. Consent to Future Conflict [20] Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b). The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict. If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b). Conflicts in Litigation EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
[21] Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients' consent. On the other hand, simultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements of paragraph (b) are met. [22] Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients' reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters. [23] When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of this Rule. Thus, the lawyer does not typically need to get the consent of such a person before representing a client suing the person in an unrelated matter. Similarly, a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter. [23a] A lawyer serving as a part-time prosecutor is not necessarily disqualified from simultaneously representing other civil or criminal defense clients in private practice. If the prosecutions handled by the lawyer are limited in nature and scope, the lawyer may be able to represent other clients in criminal or civil matters that are not related to any of the cases that the lawyer has prosecuted. Nonlitigation Conflicts [24] Conflicts of interest under paragraphs (a)(1) and (a)(2) arise in contexts other than litigation. For a discussion of directly adverse conflicts in transactional matters, see Comment [7]. Relevant factors in determining whether there is significant potential for material limitation include the duration and intimacy of the lawyer's relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that disagreements will arise and the likely prejudice to the client from the conflict. The question is often one of proximity and degree. See Comment [8]. EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
[25] For example, conflict questions may arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may be present. In estate administration the identity of the client also may be unclear. The issue is addressed in S.C. Code Ann. § 62-1-109. In order to comply with conflict of interest rules, the lawyer should make clear the lawyer's relationship to the parties involved. [26] Whether a conflict is consentable depends on the circumstances. For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference in interest among them. Thus, a lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis; for example, in helping to organize a business in which two or more clients are entrepreneurs, working out the financial reorganization of an enterprise in which two or more clients have an interest or arranging a property distribution in settlement of an estate. The lawyer seeks to resolve potentially adverse interests by developing the parties' mutual interests. Otherwise, each party might have to obtain separate representation, with the possibility of incurring additional cost, complication or even litigation. Given these and other relevant factors, the clients may prefer that the lawyer act for all of them. Special Considerations in Common Representation [27] In considering whether to represent multiple clients in the same matter, a lawyer should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment and recrimination. Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails. In some situations, the risk of failure is so great that multiple representation is plainly impossible. For example, a lawyer cannot undertake common representation of clients where contentious litigation or negotiations between them are imminent or contemplated. Moreover, because the lawyer is required to be impartial between commonly represented clients, representation of multiple clients is improper when it is unlikely that impartiality can be maintained. Generally, if the relationship between the parties has already assumed antagonism, the possibility that the clients' interests can be adequately served by common representation is not very good. Other relevant factors are whether the lawyer subsequently will represent both parties on a continuing basis and whether the situation involves creating or terminating a relationship between the parties. [28] A particularly important factor in determining the appropriateness of common representation is the effect on client-lawyer confidentiality and the attorney-client privilege. With regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised. [29] As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit. See Rule 1.4. The lawyer should, at the outset of EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
the common representation and as part of the process of obtaining each client's informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably conclude that failure to disclose one client's trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients. [30] When seeking to establish or adjust a relationship between clients, the lawyer should make clear that the lawyer's role is not that of partisanship normally expected in other circumstances and, thus, that the clients may be required to assume greater responsibility for decisions than when each client is separately represented. Any limitations on the scope of the representation made necessary as a result of the common representation should be fully explained to the clients at the outset of the representation. See Rule 1.2(c). [31] Subject to the above limitations, each client in the common representation has the right to loyal and diligent representation and the protection of Rule 1.9 concerning the obligations to a former client. The client also has the right to discharge the lawyer as stated in Rule 1.16. Organizational Clients [32] A lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary. See Rule 1.13(a). Thus, the lawyer for an organization is not barred from accepting representation adverse to an affiliate in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, there is an understanding between the lawyer and the organizational client that the lawyer will avoid representation adverse to the client's affiliates, or the lawyer's obligations to either the organizational client or the new client are likely to limit materially the lawyer's representation of the other client. [33] A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer's resignation from the board and the possibility of the corporation's obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director or should cease to act as the corporation's lawyer when conflicts of interest arise. The lawyer should advise the other members of the board that in some circumstances matters discussed at board meetings while the lawyer is present in the capacity of director might not be protected by the attorney-client privilege and that conflict of interest considerations might require the lawyer's recusal as a director or might require the lawyer and the lawyer's firm to decline representation of the corporation in a matter. Last amended by Order dated April 15, 2015.
EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
RULE 3.3: CANDOR TOWARD THE TRIBUNAL (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) apply when the lawyer is representing a client before a tribunal as well as in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition. These duties continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. Comment [1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. See Rule 1.0(q) for the definition of "tribunal." It also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition. Thus, for example, paragraph (a)(3) requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false. [2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate's duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false. Representations by a Lawyer EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
[3] An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule 1.2(d), see the Comment to that Rule. See also the Comment to Rule 8.4(b). Legal Argument [4] Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(2), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case. Offering Evidence [5] Paragraph (a)(3) requires, that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client's wishes. This duty is premised on the lawyer's obligation as an officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer does not violate this Rule if the lawyer offers the evidence for the purpose of establishing its falsity. [6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness's testimony will be false the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false. [7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in criminal cases. Counsel, however, may allow the accused to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false. See also Comment [9]. When a narrative statement is offered under these circumstances, the lawyer may not examine the witness or use the false testimony in the closing argument. [8] The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer's reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer's knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(h). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood. EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
[9] Although (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer's ability to discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client's decision to testify. See also Comment [7]. Remedial Measures [10] Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer's client, or another witness called by the lawyer, offers testimony the lawyer knows to be false, either during the lawyer's direct examination or in response to cross examination by the opposing lawyer. In such situations or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate's proper course is to remonstrate with the client confidentially, advise the client of the lawyer's duty of candor to the tribunal and seek the client's cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make disclosure to the tribunal. It is for the tribunal then to determine what should be done making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing. [11] The disclosure of a client's false testimony can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth finding process which the adversary system is designed to implement. See Rule 1.2(d). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer's advice to reveal the false evidence and insist that the lawyer keep silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the court. Preserving Integrity of The Adjudicative Process [12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so. Thus, paragraph (b) requires a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person, including the lawyer's client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding. Duration of Obligation [13] A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed. Ex Parte Proceedings [14] Ordinarily an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision. Withdrawal [15] Normally, a lawyer's compliance with the duty of candor imposed by this Rule does not require that the lawyer withdraw from the representation of a client whose interests will be or have been adversely affected by the lawyer's disclosure. The lawyer may, however, be required by Rule 1.16(a) to seek permission of the tribunal to withdraw if the lawyer's compliance with this Rule's duty of candor results in such an extreme deterioration of the client-lawyer relationship that the lawyer can no longer competently represent the client. Also see Rule 1.16(b) for the circumstances in which a lawyer will be permitted to seek a tribunal's permission to withdraw. In connection with a request for permission to withdraw that is premised on a client's misconduct, a lawyer may reveal information relating to the representation only to the extent reasonably necessary to comply with this Rule or as otherwise permitted by Rule 1.6. Last amended by Order dated April 15, 2015.
RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. Comment [1] The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. [2] Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for purposes of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense. Paragraph (a) applies to evidentiary material generally, including computerized information. A lawyer may take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence or in any other manner alter or destroy the value of the evidence for possible use by the prosecution. In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances. [3] With regard to paragraph (b), it is not improper to pay a witness's expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee. [4] Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. See also Rule 4.2.
RULE 3.8: SPECIAL RESPONSIBILITIES OF A PROSECUTOR The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. Comment [1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4. [2] In some jurisdictions, a defendant may waive a preliminary hearing and thereby lose a valuable opportunity to challenge probable cause. Accordingly, prosecutors should not seek to obtain waivers of preliminary hearings or other important pretrial rights from unrepresented accused persons. Paragraph (c) does not apply, however, to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of a suspect who has knowingly waived the rights to counsel and silence. [3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest. [4] Paragraph (e) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client lawyer relationship. [5] Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c). [6] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer's office. Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph (f) requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law-enforcement personnel and other relevant individuals.
RULE 4.1: TRUTHFULNESS IN STATEMENTS TO OTHERS In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. Comment Misrepresentation [1] A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4. [2] A government lawyer involved with or supervising a law enforcement investigation or operation does not violate this rule as a result of the use, by law enforcement personnel or others, of false identifications, backgrounds and other information for purposes of the investigation or operation. Statements of Fact [3] This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation. Crime or Fraud by Client [4] Under Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client's crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client's crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client's crime or fraud. If the lawyer can avoid assisting a client's crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so unless the disclosure is prohibited by Rule 1.6.
RULE 4.2: COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Comment [1] This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client lawyer relationship and the uncounselled disclosure of information relating to the representation. [2] This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates. [3] The Rule applies even though to represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule. [4] This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter without consent from or notice to the original lawyer. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
for communicating with a represented person is permitted to do so including giving a second professional opinion without consent from or notice to the original lawyer. [5] Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule. [6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury. [7] In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4, Comment [2]. [8] The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. See Rule 1.0(h). Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious. [9] In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer's communications are subject to Rule 4.3. Last amended by Order dated April 15, 2015.
RULE 4.3: DEALING WITH UNREPRESENTED PERSON In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. Comment [1] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyer's client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13(d). [2] The Rule distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyer's client and those to which the person’s interests are not in conflict with the client’s. In the former situation, the possibility that the lawyer will compromise the unrepresented person's interests is so great that the Rule prohibits the giving of any advice, apart from the advice to obtain counsel. Whether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur. This Rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer's client will enter into an agreement or settle a matter, prepare documents that require the person's signature and explain the lawyer's own view of the meaning of the document or the lawyer's view of the underlying legal obligations.
RULE 4.4: RESPECT FOR RIGHTS OF THIRD PERSONS (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. Comment [1] Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client lawyer relationship. [2] Paragraph (b) recognizes that lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that a such a document was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document, is a EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this Rule, "document" includes e mail or other electronic modes of transmission subject to being read or put into readable form. [3] Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.
RULE 8.4: MISCONDUCT It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) commit a criminal act involving moral turpitude; (d) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (e) engage in conduct that is prejudicial to the administration of justice; (f) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (g) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. Comment [1] Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer's behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take. [2] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. The South Carolina version of this Rule also specifically includes criminal acts involving moral turpitude as professional misconduct. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. EXCERPTS FROM RULE 407, SCACR SOUTH CAROLINA RULES OF PROFESSIONAL CONDUCT
[3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (e) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (e). A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule. [4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law. [5] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.
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Supreme Court of South Carolina.
In the Matter of Larry F. GRANT, Respondent.
No. 25233.
Submitted Dec. 7, 2000. Decided Jan. 16, 2001.
In attorney disciplinary proceedings, the Supreme Court held that attorney's failure to fully disclose exculpatory material and impeachment evidence regarding statements given by state's key witness in murder prosecution was misconduct warranting public reprimand as agreed discipline.
Public reprimand ordered.
West Headnotes Attorney and Client 58 45k58 Most Cited Cases Attorney's failure to fully disclose exculpatory material and impeachment evidence regarding statements given by state's key witness in murder prosecution, which resulted in accused's plea of guilty to voluntary manslaughter, was misconduct warranting public reprimand as agreed discipline. Appellate Court Rule 407, Rules of Prof.Conduct, Rules 3.4(d), 3.8(d), 8.4(a, e); Appellate Court Rule 413, Lawyer Disciplinary Enforcement Rules 7(a)(1, 5, 6), 21. **540 *529 Henry B. Richardson, Jr., and Michael S. Pauley, both of Columbia, for the Office of Disciplinary Counsel.
Leland B. Greeley, of Rock Hill, for respondent.
PER CURIAM.
In this attorney disciplinary matter, respondent and Disciplinary Counsel have entered into an Agreement for Discipline by Consent pursuant to Rule 21, RLDE, Rule 413, SCACR. In the agreement, respondent admits misconduct and consents to a public reprimand. We accept the agreement and publicly reprimand respondent.
Facts
Respondent violated the discovery requirements contained in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to fully disclose exculpatory material and impeachment evidence regarding statements given by the State's key witness in a murder prosecution. [FN1] The accused pled guilty to voluntary manslaughter as a result of the Brady violation.
FN1. The facts are discussed in detail in this Court's opinion in Gibson v. State, 334 S.C. 515, 514 S.E.2d 320 (1999).
Law
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By his conduct, respondent has violated the following Rules of Professional Conduct, Rule 407, SCACR: Rule 3.4(d)(failing to make a diligent effort to comply with the discovery request of an opposing party); Rule 3.8(d)(failing to make a timely disclosure to the defense of known evidence or information that tends to negate the guilt of the accused or mitigate the offense); Rule 8.4(a)(violating the Rules of Professional Conduct); and Rule 8.4(e)(engaging in conduct that is prejudicial to the administration of justice).
Respondent has also violated the following Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR: Rule 7(a)(1)(violating rules regarding the professional conduct of lawyers); Rule 7(a)(5)(engaging in conduct tending to pollute the administration of justice or bring the legal profession into *530 disrepute); and Rule 7(a)(6)(violating the oath of office taken upon admission to practice law in this state).
Conclusion
We find that respondent's misconduct warrants a public reprimand. We therefore accept the Agreement for Discipline by Consent and publicly reprimand respondent.
PUBLIC REPRIMAND.
TOAL, C.J., MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.
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END OF DOCUMENT
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Supreme Court of South Carolina. **728 *568 Henry B. Richardson, Jr., and Michael In the Matter of Francis A. HUMPHRIES, Jr., S. Pauley, both of Columbia, for The Office of Respondent. Disciplinary Counsel. No. 25660. A. Peter Shahid, Jr. and Coming B. Gibbs, Jr., both Submitted May 5, 2003. of Charleston, for respondent. Decided June 2, 2003. PER CURIAM: In attorney disciplinary matter, attorney and Office of Disciplinary Counsel entered into Agreement for In this attorney disciplinary matter, respondent and Discipline by Consent. The Supreme Court held the Office of Disciplinary Counsel have entered into that a one-year suspension was warranted for an Agreement for Discipline by Consent pursuant to attorney's conduct as assistant solicitor of judicial Rule 21, RLDE, Rule 413, SCACR. In the circuit in failing to respond to defense counsel's agreement, respondent admits misconduct and discovery requests by reporting rumored existence consents to a dismissal, the issuance of a letter of of a videotape recording of confidential, caution or the imposition of any of the sanctions set attorney-client privileged communication of forth in Rule 7(b), RLDE. We accept the agreement criminal defendant and his former attorney, in and find a one year suspension from the practice of failing to determine whether rumored existence of law is the appropriate *569 sanction. The facts, as the tape was correct, and in failing to promptly set forth in the agreement, are as follows. provide defense counsel with a copy of the tape. Facts Definite suspension. Respondent was employed as an Assistant Solicitor in the Eleventh Judicial Circuit. On May 29, 1995, West Headnotes respondent was on call in connection with his duties as an Assistant Solicitor and was summoned to the Attorney and Client 59.13(3) offices of the Lexington County Sheriff's 45k59.13(3) Most Cited Cases Department. (Formerly 45k58) One-year suspension was warranted for attorney's Upon his arrival at the Sheriff's Department, conduct as assistant solicitor of judicial circuit in respondent was advised that a suspect, Robert failing to respond to defense counsel's discovery Joseph Quattlebaum, was being held in connection requests by reporting rumored existence of a with an apparent murder, a burglary or robbery of videotape recording of confidential, attorney-client the victim's house, and the shooting of another privileged communication of criminal defendant victim. Respondent was also informed that and his former attorney, in failing to determine Quattlebaum's attorney, John E. Duncan, was with whether rumored existence of the tape was correct, Quattlebaum at the Sheriff's Department. and in failing to promptly provide defense counsel with a copy of the tape. Appellate Court Rule 407, Sometime later, respondent was advised that Rules of Prof.Conduct, Rules 3.4(c, d), 8.4(a, e); Quattlebaum had consented to a polygraph Appellate Court Rule 413, Lawyer Disciplinary examination. Respondent was not initially in the Enforcement Rule 7(a)(1, 5); Rules Crim.Proc., vicinity of the room where the polygraph Rule 5(a)(1)(C). examination was to take place, but was waiting in or
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near a conference room in another part of the Sessions that the conversation between Duncan and building where respondent had, from time to time, Quattlebaum had been overheard by Sheriff's been consulted by Sheriff's Department personnel Department personnel. concerning their investigation of Quattlebaum. Duncan withdrew as counsel soon after However, respondent was later summoned by Quattlebaum's arrest. Joseph M. McCulloch, Jr. Sheriff's Department personnel to the polygraph and Katherine E. Evatt were appointed to represent examiner's office, which was close to the polygraph Quattlebaum. On May 30, 1995, respondent and room itself. Respondent discovered Sheriff's Evatt discussed Quattlebaum's case, but respondent Department personnel watching a video monitor in made no mention of the conversation between the polygraph examiner's office. He surmised that Duncan and Quattlebaum being overheard by he had **729 been summoned to the office to Sheriff's Department personnel. observe what was being shown on the video monitor. In March 1996, respondent heard a rumor from Edward V. Hite, the principal investigator on Respondent then realized that the video monitor Quattlebaum's case, that a videotape of the was playing video and audio portions of a conversation between Duncan and Quattlebaum conversation between Quattlebaum and Duncan in might exist. Respondent immediately advised the polygraph room. It was readily apparent to Solicitor Myers of the rumor and discussed with the respondent that the conversation was intended by Solicitor whether that information was subject to Quattlebaum and Duncan to be a confidential, discovery. Respondent maintains it was determined attorney-client privileged communication. by respondent and the Solicitor that the information Respondent told the Sheriff's Department personnel would be disclosed to opposing counsel during the present to turn off the video monitor. normal course of discovery and upon proper requests. In In re Myers, 355 S.C. 1, 584 S.E.2d *570 Respondent then went down the hall to the 357, Op. No. 25647 (S.C. Sup.Ct. filed May 5, office of Lieutenant Phillips, the senior law 2003), this Court found respondent and the Solicitor enforcement officer in the vicinity. Although discussed whether the tape was discoverable, and respondent believed the monitor was turned off, he the Solicitor stated that if there was a tape, did not verify that such action had been taken, nor respondent should *571 give it to the defense. We did he ask Lieutenant Phillips to ensure that the are not otherwise persuaded by respondent's monitor had been turned off. Respondent had no rendition of these facts. Respondent took no action advance knowledge that the conversation was going at that time to substantiate the rumor nor was to be observed or listened to by Sheriff's opposing counsel notified of the rumor until much Department personnel and had no reason to believe later. Sheriff's Department personnel had planned in advance to monitor the conversation. On May 28, 1996, opposing counsel served discovery motions, pursuant to Rule 5, SCRCrimP, Respondent did not advise Duncan that the and Brady v. Maryland [FN1], on the State. These conversation between Duncan and Quattlebaum had motions were received and handled exclusively by been overheard by Sheriff's Department personnel. respondent on behalf of the State. The Brady Quattlebaum was arrested when he emerged from motion included a request for "all evidence or the polygraph room. information within the possession, custody or control of the prosecution, the existence of which is Within a day or so, respondent notified Solicitor known or by the exercise of due diligence may Donald V. Meyers, of the events which took place become known to the attorney for the prosecution ... at the Sheriff's Department. Respondent did not which could tend to show that the Defendant was notify Duncan or the judge of the Court of General not guilty ... or tend to mediate punishment" and
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specifically requested "all statements ... of ... the the first time respondent advised Evatt, or any other defendant concerning the case ..., any and all ... counsel for Quattlebaum, that the conversation photographs ... and any and all transcripts or tapes between Duncan and Quattlebaum had been from any wire taps." The Rule 5 motion included a overheard or that a videotape of the conversation request for "all information available to the existed or was rumored to exist. Respondent defendant under the Rules of Criminal Procedure," maintained he had not seen the videotape until it specifically citing Rules (5)(a)(1)(A), (B), (C), and was delivered by an investigator for the Sheriff's (D). Respondent understood these motions were Department, on August 7, 1997, after respondent continuing in nature and, as such, would be had spoken with Evatt. A copy of the videotape applicable to any subsequent information available was provided to Evatt the following day. to respondent. Respondent's response to the Brady and Rule 5 motions made no mention of the Respondent either knew or should have known of conversation between **730 Duncan and the existence of the videotape as early as March Quattlebaum and made no mention of the rumored 1996. Respondent acknowledges that the existence existence of a videotape of that conversation. of the tape could have, in all likelihood, been easily confirmed in March 1996 had he vigorously FN1. 373 U.S. 83, 83 S.Ct. 1194, 10 pursued the rumor of the existence of the videotape L.Ed.2d 215 (1963). and demanded that the Sheriff's Department address the rumor and report back immediately as to On June 30, 1997, counsel for Quattlebaum served whether the rumored videotape existed. an additional discovery motion on the Solicitor's Office. By this time, it was contemplated by the Respondent acknowledges that he now knows that parties that Quattlebaum's case would be heard Rule 5(a)(1)(A), SCRCrimP, provides for during the November 10, 1997 term of General disclosure of "... any relevant ... recorded statement Sessions Court in Lexington County. The new made by the defendant within the possession, discovery motion specifically requested "[c]opies of custody or control of the prosecution, the existence all videotape or audiotape of any interviews with of which is known or by the exercise of due the defendant." After receiving the motion, diligence may become known to the attorney for the respondent immediately contacted the Sheriff's prosecution." Respondent also recognizes, but did Department for any additional information subject not previously, that this provision of Rule 5 applies to discovery, including any and all videotapes of to any recorded statements of a defendant, not just interviews with Quattlebaum. Edward Hite to those made to law enforcement. confirmed that a videotape, containing both audio and video recordings, existed of the conversation Respondent acknowledges that he knew that Rule between Duncan and Quattlebaum. 5(a)(1)(C), SCRCrimP, requires disclosure of "photographs." He also recognizes, but did not *572 On August 1, 1997, respondent wrote Evatt a previously, that videotapes are included in the letter stating "copies of all ... video tapes made in definition of "photographs" found in Rule 1001(2), connection with this case will be provided at cost to SCRE. you by Friday, August 8, 1997, at noon." On August 7, 1997, respondent met with Evatt and *573 Respondent acknowledges that, in retrospect, advised her that the conversation between Duncan he may have, under Rule 5, been obligated in and Quattlebaum had been overheard, that March 1996 and thereafter to advise counsel for respondent was present and knew of this occurrence Quattlebaum of the rumored existence of the on the occasion that it happened, that a videotape videotape. He acknowledges he was further was reported to have been made of that obligated to have aggressively sought to have conversation, and if a videotape of that conversation determined whether the rumored existence of the existed it would be made available to her. This was videotape was correct and, if so, to have promptly
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(Cite as: 354 S.C. 567, 582 S.E.2d 728)
notified counsel for Quattlebaum and to have one year suspension from the practice of law. promptly provided them with a copy of the tape. Respondent shall receive credit for the time he was on interim suspension from May 2, 2000 until Respondent acknowledges that, in retrospect, as an August 3, 2000, and from September 20, 2000 until officer of the court, he had an obligation to take November 22, 2000. Within fifteen days of the date affirmative action to ensure the monitoring of the of this opinion, respondent shall file an affidavit conversation immediately ceased and a further with the Clerk of Court showing that he has obligation to notify both counsel for Quattlebaum complied with Rule 30, RLDE, Rule 413, SCACR. and the Court of General Sessions of the occurrence, even prior to discovery motions being DEFINITE SUSPENSION. filed and more so after the initial discovery motions had been served. Finally, respondent acknowledges TOAL, C.J., MOORE, WALLER and BURNETT, that he should have withdrawn from participation in JJ., concur. PLEICONES, J., not participating. the Quattlebaum case on the basis set forth in State v. Quattlebaum, 338 S.C. 441, 527 S.E.2d 105 354 S.C. 567, 582 S.E.2d 728 (2000). END OF DOCUMENT Law Respondent admits that by his conduct he has violated the following provisions of the **731 Rules of Professional Conduct, Rule 407, SCACR: Rule 3.4(c)(a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists); Rule 3.4(d)(a lawyer shall not, in pretrial procedure, fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party); Rule 8.4(a) (it is professional misconduct for a lawyer to violate the Rules of Professional Conduct); and Rule 8.4(e) (it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice).
Respondent also admits that he has violated the following provisions of the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR: Rule 7(a)(1) (it shall be a ground for discipline for a lawyer to violate the Rules of Professional Conduct and Rule 7(a)(5) (it shall be a ground for discipline for a lawyer to engage in conduct tending to pollute the administration of justice or to bring the courts or the legal *574 profession into disrepute or to engage in conduct demonstrating an unfitness to practice law).
Conclusion In our opinion, respondent's misconduct warrants a
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
THE STATE OF SOUTH CAROLINA In The Supreme Court
In the Matter of Margaret D. Fabri, Respondent.
Appellate Case No. 2016-000917
Opinion No. 27683 Heard September 21, 2016 – Filed November 16, 2016
PUBLIC REPRIMAND
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
1 Rule 45 states, in relevant part: "[u]nless otherwise ordered by the court, prior notice in writing of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b) at least 10 days before the time specified for compliance." Rule 45(b)(1), SCRCP.
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 the subpoenas. We disagree.
Rule 45 of the South Carolina Rules of Civil Procedure sets forth the procedures for issuing a subpoena. Rule 45(b)(1) explains when a party issuing a subpoena must provide notice of the subpoena to an opposing party. It provides, in pertinent part: "Unless otherwise ordered by the court, prior notice in writing of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b) at least 10 days before the time specified for compliance." Rule 45(b)(1), SCRCP (emphasis added). South Carolina added this notice provision in accordance with a
similar provision in Rule 45 of the Federal Rules of Civil Procedure,2 which, at that time,3 stated, in relevant part: "If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served, a notice must be served on each party." Fed. R. Civ. P. 45(b)(1). This notice provision was added to the Federal Rules of Civil Procedure by a 1991 amendment, the comment to which explained:
The purpose of such notice is to afford other parties an opportunity to object to the production or inspection, or to serve a demand for additional documents or things. Such additional notice is not needed with respect to a deposition because of the requirement of notice imposed by Rule 30 or 31. But when production or inspection is sought independently of a deposition, other parties may need notice in order to monitor the discovery and in order to pursue access to any information that may or should be produced.
Fed. R. Civ. P. 45(b)(1) cmt.
Respondent interprets Rule 45(b)(1), SCRCP as requiring notice to the opposing party only when issuing a subpoena commanding the production of documents before a hearing or a trial. Therefore, according to Respondent, she was not required to notify opposing counsel because the subpoenas commanded the production of documents at the hearing. While Respondent acknowledged she invited the records custodian to produce the documents before the hearing, Respondent attempts to distinguish this situation from one in which the notice
2 See Rule 45, SCRCP cmt. ("Rule 45 is amended to conform to federal Rule 45, as amended in December 1991.").
3 In 2013, the Advisory Committee on Rules of Civil Procedure ("Committee") moved the notice provision to Rule 45(a)(4), and clarified that the notice must include a copy of the subpoena. Fed. R. Civ. P. 45(a)(4) cmt. The Committee made these changes in order "to achieve the original purpose of enabling the other parties to object or to serve a subpoena for additional materials." Id. Accordingly, Rule 45(a)(4) now provides: "If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party." Fed. R. Civ. P. 45(a)(4).
requirement would apply under her interpretation of the rule by stating it was merely a request not a command.
We need not delve too deep into Respondent's argument because we disagree with Respondent's interpretation of Rule 45, SCRCP. Instead, we interpret the rule as requiring that notice be given to the opposing party anytime a party issues a subpoena commanding the production of documents, regardless of when the documents are commanded to be produced. See James F. Flanagan, South Carolina Civil Procedure, at 387 (3d ed. 2010) ("The last sentence of Rule 45(b)(1) requires that notice be given to other parties if a subpoena requesting production of materials is served on a non-party. The notice keeps all parties abreast of the pending discovery and upon request, they may obtain copies of the material produced."). Our interpretation is consistent with the purpose of the notice provision, the remaining provisions of Rule 45,4 decisions from federal courts interpreting the notice provision in Rule 45 of the Federal Rules of Civil Procedure,5 and with a previous order from this Court in which we clarified:
[A] subpoena may be used for the production, inspection or copying of books, documents or tangible objects, or for the inspection of premises. Rule 45(a), SCRCP. When used for this purpose, the subpoena may be issued only to compel a witness to produce materials in his possession or control at the time the subpoena is
4 For example, Rule 45 provides that the opposing party must make a written request in order to receive a copy of the documents procured from a subpoena. Rule 45(c)(2)(A), SCRCP. In order to make such a request, however, the opposing party must have notice of the subpoena.
5 See, e.g., Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 386 (7th Cir. 2008) ("A party must serve each party with prior notice if the subpoena commands the production of documents."); Murphy v. Bd. of Educ. of Rochester City Sch. Dist., 196 F.R.D. 220, 222 (W.D.N.Y. 2000) ("Without question, Rule 45(b)(1) requires a party issuing a subpoena for the production of documents to a non-party to 'provide prior notice to all parties to the litigation.'" (quoting Schweizer v. Mulvehill, 93 F. Supp. 2d 376, 411 (S.D.N.Y. 2000)); Anderson v. Gov't of Virgin Islands, 180 F.R.D. 284, 291 (D.V.I. 1998) ("Before serving any subpoena, a party is required to provide notice to all other parties in the litigation to allow them the equal opportunity to review and obtain the materials at the same time as the party who served the subpoena.").
served; it may not be used to require a witness to perform any other affirmative act such as preparing a sworn statement. Wright & Miller, Federal Practice and Procedure: Civil § 2454 (1971); 97 C.J.S. Witnesses § 25e (1957). Unless otherwise ordered by the court, notice of the issuance of this kind of subpoena must be served on all parties to the action. Rule 45(b)(1), SCRCP.
S.C. Sup. Ct. Order dated Oct. 9, 1993 (Davis Adv. Sh. No. 25) (emphasis added).
Accordingly, we hold Respondent violated Rule 45, SCRCP by failing to notify opposing counsel. We also conclude Respondent's issuance of the subpoenas contravened Rule 25, SCRFC, which prohibits discovery in the family court without a court order or a stipulation by both parties, since neither condition was in effect when Respondent issued the subpoenas. As the Hearing Panel pointed out:
It is abundantly clear from the record that Respondent issued the subpoenas as a discovery tool to obtain the financial records of the opposing party because Respondent had not yet received the financial declaration. The subpoenas . . . were clearly an attempt by Respondent to discover information and not to compel the appearance of a witness at a temporary hearing.
Thus, we find there is clear and convincing evidence Respondent violated Rule 8.4(e), RPC, Rule 407, SCACR (providing a lawyer shall not "engage in conduct that is prejudicial to the administration of justice"); Rule 7(a)(1), RLDE, Rule 413, SCACR (proclaiming lawyer shall not violate the Rules of Professional Conduct or any other rules regarding the professional conduct of lawyers); and Rule 7(a)(5), RLDE, Rule 413, SCACR (prohibiting lawyer from "engag[ing] in conduct tending to pollute the administration of justice or to bring the courts or the legal profession into disrepute or demonstrating an unfitness to practice law"). We further find clear and convincing evidence Respondent violated Rule 4.1(a), RPC, Rule 407, SCACR (explaining "lawyer shall not knowingly . . . make a false statement of material fact or law to a third person") and Rule 8.4(d), RPC, Rule 407, SCACR (recognizing it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation"), because Respondent
signed the subpoenas, certifying she notified opposing counsel as required under Rule 45, SCRCP.6
In addition to the misconduct that gave rise to this case, Respondent has been sanctioned for misconduct in two previous instances that involved improperly subpoenaing an out-of-state party and issuing a subpoena in a case that was not pending. These incidents coupled with Respondent's misconduct in this case indicate an admonition is insufficient to deter Respondent from improperly issuing subpoenas in the future.
IV. Conclusion
For the abovementioned reasons, we find Respondent's misconduct warrants a public reprimand. Accordingly, we accept the majority of the Hearing Panel's recommendation to publicly reprimand Respondent for her misconduct. In addition, Respondent shall, within thirty days of the date of this opinion, pay the costs incurred in the investigation of this matter by ODC and the Commission. Finally, Respondent shall complete the South Carolina Bar's Legal Ethics and Practice Program Ethics School within one year of the date of this opinion. Respondent shall provide proof of her completion to the Commission no later than ten days after the conclusion of the program.
6 It has also come to our attention that some attorneys will receive documents from a witness prior to the time the witness was commanded to appear with the documents. Once the attorney receives the documents, the witness is generally released from their obligation to appear without any notice to the opposing party, who is still under the expectation that the witness will appear at the trial or hearing with the requested documents. We caution against this practice. Further, we conclude not only must an attorney notify the opposing party when subpoenaing the production of documents, but the opposing party must also be notified anytime the party issuing the subpoena receives the documents prior to the time requested in the subpoena. To hold otherwise would circumvent the purpose of the notice provision and would allow the party issuing the subpoena to gain a competitive advantage over the opposing party who may have no knowledge of the contents of the documents until the trial or hearing.
PUBLIC REPRIMAND.
PLEICONES, C.J., BEATTY, KITTREDGE, HEARN and FEW, JJ., concur.
Matter of Owen, 422 S.C. 16 (2018) 809 S.E.2d 231 Public reprimand was warranted 422 S.C. 16 for attorney who issued subpoenas Supreme Court of South Carolina. for production of documents without providing prior notice to In the MATTER OF Paul opposing counsel and who failed Winford OWEN, Jr., Respondent to provide copies of subpoenas to opposing counsel until after Appellate Case No. 2017-001453 multiple requests. S.C. R. Civ. P. | 45; S.C. R. Prof. Conduct 3.4(c), Opinion No. 27760 4.1, 8.4(d), 8.4(e); Appellate Court | Rule 413, Lawyer Disciplinary Submitted July 11, 2017 Enforcement, Rule 7(a)(1). | Filed January 10, 2018 Cases that cite this headnote
Synopsis Background: Attorney disciplinary proceeding was brought. Attorneys and Law Firms
John S. Nichols, Disciplinary Counsel, and [Holding:] The Supreme Court held Charlie Tex Davis, Jr., Senior Assistant that public reprimand was warranted Disciplinary Counsel, both of Columbia, for for attorney who issued subpoenas for Office of Disciplinary Counsel. production of documents without providing J. Steedley Bogan, of Columbia, for prior notice to opposing counsel and who Respondent. failed to provide copies of subpoenas to opposing counsel until after multiple Opinion requests. PER CURIAM:
Public reprimand ordered. *17 In this attorney disciplinary matter, respondent and the Office of Disciplinary Counsel have entered into an Agreement West Headnotes (1) for Discipline by Consent (Agreement) pursuant to Rule 21 of the Rules for Lawyer Disciplinary Enforcement (RLDE) [1] Attorney and Client contained in Rule 413 of the South Carolina Public Reprimand; Public Appellate Court Rules (SCACR). In the Censure; Public Admonition Agreement, respondent admits misconduct and consents to the imposition of a public
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 Matter of Owen, 422 S.C. 16 (2018) 809 S.E.2d 231 reprimand. We accept the Agreement and company, certifying in each subpoena that issue a public reprimand. 1 The facts, as set it was issued in compliance with Rule 45 of forth in the Agreement, are as follows. the South Carolina Rules of Civil Procedure (SCRCP) and that notice as required by Rule 45(b)(1) had been given to all parties. 1 Respondent's disciplinary history includes an admonition in February 2007, citing the following However, respondent failed to provide prior Rules of Professional Conduct, Rule 407, SCACR: notice to opposing counsel, and in fact, Rule 1.1 (a lawyer shall provide competent did not provide copies of the subpoenas representation to a client; competent representation requires the legal knowledge, skill, thoroughness to opposing counsel until July 2011, after and preparation reasonably necessary for the multiple requests from opposing counsel. representation), Rule 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client), Rule 1.4 (a lawyer shall communicate in a reasonable manner with a client), 8.4(a) (it is professional misconduct for a lawyer to violate or Law attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do Respondent admits that he failed to comply so through the acts of another), and 8.4(e) (it is with the requirements of Rule 45, SCRCP. professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of He also admits that by his conduct he justice); a letter of caution in September 2014, citing has violated the following provisions of Rule 1.3, RPC; and a public reprimand in July 2016, the Rules of Professional Conduct, Rule see In the Matter of Owen, 417 S.C. 85, 789 S.E.2d 48 (2016), citing Rule 1.1, Rule 3.1 (a lawyer shall not 407, SCACR: Rule 3.4(c)(a lawyer shall bring or defend a proceeding, or assert or controvert not knowingly disobey an obligation under an issue therein, unless there is a basis in law and fact the rules of a tribunal, except for an for doing so that is not frivolous, which includes a good faith argument for an extension, modification open refusal based on an assertion that or reversal of existing law), Rule 3.3 (a lawyer shall no valid obligation exists); Rule 4.1(a) exercise candor toward the tribunal), Rule 3.4 (a (in the course of representing a client a lawyer shall not engage in conduct that is unfair to an opposing party or counsel), and Rule 8.4(a), lawyer shall not knowingly make a false (d) (it is professional misconduct for a lawyer to statement of material fact or law to a engage in conduct involving dishonesty, fraud, deceit third person); Rule 8.4(d)(it is professional or misrepresentation), and (e), RPC. See Rule 2(r), misconduct for a lawyer to engage in RLDE; Rule 7(b)(4), RLDE. conduct involving dishonesty, fraud, deceit or misrepresentation); and Rule 8.4(e)(it **232 *18 Facts is professional misconduct for a lawyer to engage in conduct that is prejudicial In March 2011, respondent filed a to the administration of justice). Finally, civil action in the circuit court in respondent admits he has violated Rule 7(a) Orangeburg County, alleging various claims (1) of the Rules for Lawyer Disciplinary against a company that sold above- Enforcement, Rule 413, SCACR, which ground swimming pools. Respondent issued provides that it is a ground for *19 seventeen subpoenas for the production discipline for a lawyer to violate the Rules of of documents to other customers of the Professional Conduct, Rule 407, SCACR, or
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 Matter of Owen, 422 S.C. 16 (2018) 809 S.E.2d 231 any other rules of this jurisdiction regarding professional conduct of lawyers. PUBLIC REPRIMAND.
Conclusion BEATTY, C.J., KITTREDGE, HEARN, FEW and JAMES, JJ., concur. We find respondent's misconduct warrants a public reprimand. Accordingly, we accept All Citations the Agreement and publicly reprimand 422 S.C. 16, 809 S.E.2d 231 respondent for his misconduct.
End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 Matter of Lundgren, 421 S.C. 300 (2017) 806 S.E.2d 125 admission and serving improper 421 S.C. 300 subpoena and discovery requests Supreme Court of South Carolina. in jurisdiction in which he was not licensed to practice law In the MATTER OF Alvin R. warranted permanent disbarment, LUNDGREN, Respondent. where attorney did not participate in disciplinary investigation, Appellate Case No. 2017-000097 attorney did not answer | formal charges, and attorney Opinion No. 27742 had prior disciplinary history, | including previous disbarment for Heard August 16, 2017 misappropriation of clients funds | and suspension for unauthorized Filed October 18, 2017 practice of law.
Synopsis Cases that cite this headnote Background: Office of Disciplinary Counsel (ODC) filed formal charges against attorney alleging professional misconduct. [2] Attorney and Client Commission of Lawyer Conduct Discretion recommended permanent disbarment. The authority to discipline lawyers and the manner in which the discipline is imposed is a matter within the Supreme Court's [Holding:] The Supreme Court held that discretion. attorney's conduct in violating rules governing pro hac vice admission and Cases that cite this headnote serving improper subpoena and discovery requests warranted permanent disbarment.
Disbarment ordered. Attorneys and Law Firms **126 Lesley M. Coggiola, Disciplinary Counsel, and C. Tex Davis Jr., Senior West Headnotes (2) Assistant Disciplinary Counsel, both of Columbia, for the Office of Disciplinary [1] Attorney and Client Counsel. Permanent disbarment Alvin R. Lundgren, of Veyo, Utah, pro se. Attorney's conduct in violating rules governing pro hac vice
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 Matter of Lundgren, 421 S.C. 300 (2017) 806 S.E.2d 125
May 2017, Respondent was disbarred by the Kansas Opinion Supreme Court.
PER CURIAM: FACTUAL BACKGROUND *301 In this attorney disciplinary matter, the Office of Disciplinary Counsel (ODC) The following facts are drawn from the filed formal charges against Respondent formal charges against Respondent and are alleging he committed misconduct by deemed admitted pursuant to Rule 24(a), violating the rules governing pro hac vice RLDE, Rule 413, SCACR. admission and serving improper subpoena and discovery requests. Respondent is not Respondent lives with his wife (Wife) in Utah, where he was licensed to practice licensed to practice law in South Carolina. 1 2 Because Respondent failed to file any *302 law. Wife previously lived in South response to the formal charges, all the Carolina with her first husband (Ex- allegations contained therein are deemed Husband). Wife was divorced from Ex- admitted. Rule 24(a), RLDE, Rule 413, Husband in 1993. Thereafter, Ex-Husband SCACR. Neither ODC nor Respondent filed a defamation action against Wife filed exceptions to the recommendation in South Carolina. In February 2009, and the matter is now before the Court Respondent submitted an application for for consideration. The sole issue before pro hac vice admission to the South Carolina the Court is determining the appropriate Supreme Court Office of Bar Admissions in sanction. We accept the recommendation an effort to represent Wife in the defamation from the Commission on Lawyer Conduct, action. Respondent's local counsel filed the and we find it appropriate to permanently required application and a motion with debar Respondent in this state, order him the circuit court to allow Respondent to to pay the costs of the investigation and appear pro hac vice. However, Respondent subsequent proceedings, and order him to filed various pleadings, motions, responses comply with other sanctions as will be to motions, proposed orders, and letters described herein. to judges without the signature of his local counsel as required by Rule 404(f), 3 1 Respondent has been admitted to the practice of SCACR. Ultimately, the parties mutually law in Missouri, California, Utah, and Kansas. agreed to dismiss their claims. The Missouri Supreme Court indefinitely suspended Respondent from the practice of law in Missouri in 2000 for the unauthorized practice of law. 2 See note 1. Thereafter, the court reinstated Respondent's license 3 to practice law; however, his Missouri license is Rule 404, SCACR, has been amended since 2010. currently inactive. In 2014, Respondent resigned The citation here refers to the version of the rule in from the California State Bar. On July 11, 2013, place at the time of Respondent's conduct. See Rule Respondent was disbarred by the District Court 404(f) (2010) (“The South Carolina attorney of record of Morgan County in Utah for misappropriation shall at all times be prepared to go forward with the of client funds. Following Respondent's appeal, the case; sign all papers subsequently filed; and attend all Supreme Court of Utah upheld the disbarment. In subsequent proceedings in the matter,....”).
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 Matter of Lundgren, 421 S.C. 300 (2017) 806 S.E.2d 125 *303 In 2011, Wife sought to modify the a document entitled “Plaintiff's Request Final Order and Decree of Divorce by for Answers to Interrogatories, Admissions amending certain language regarding Ex- and Request for Production of Documents” Husband's retirement funds. In October on Ex-Husband and his counsel, again 2012, Respondent submitted an application citing the divorce action. In addition to for pro hac vice admission to the South serving a discovery request in a dismissed Carolina Supreme Court Office of Bar case, Respondent improperly: (1) issued Admissions to represent Wife in the the discovery request without stipulation divorce action. Respondent failed to file his of the parties or court order upon written application or a motion to appear pro hac application, as required by Rule 25, SCRFC; vice with the family court prior to making (2) had direct contact with Ex-Husband, an appearance as required by Rule 404(c), whom Respondent knew to be represented SCACR. 4 In August of 2013, the family by counsel; (3) falsely stated in the discovery **127 court issued a final order resolving request that an action was pending in the modification. family court; and (4) falsely stated in the discovery request that it was issued in *304 compliance with Rules 33, 34, 4 Rule 404, SCACR, has been amended since 2012. The citation here refers to the version of the rule and 36, SCRCP, and Rules 34 and 36 in place at the time of Respondent's conduct. See of the Utah Rules of Civil Procedure. In Rule 404(c) (2012) (“An attorney desiring to appear issuing the subpoena and discovery request, pro hac vice shall file with the tribunal in which the matter is pending, prior to making an appearance, an Respondent's conduct violated the South Application for Admission Pro Hac Vice....”). Carolina Family Court Rules, the South In December 2014, approximately a year and Carolina Rules of Civil Procedure, and a half after the divorce action concluded, Rules 3.4(d), 4.1, 4.2, 4.4(a), and 8.4(e), Respondent issued a subpoena to Ex- RPC, Rule 407, SCACR. Husband's former employer, under the caption of the divorce action. In addition ODC filed formal charges on August to issuing a subpoena in a dismissed 22, 2016. Respondent did not file an case, Respondent improperly: (1) issued the answer and was held in default by panel subpoena without stipulation of the parties order dated November 3, 2016. The or court order upon written application, as Hearing Panel convened and filed its Panel required by Rule 25, SCRFC; (2) issued Report on December 9, 2016. Respondent the subpoena to an out-of-state entity; was given notice of the proceeding but (3) falsely stated in the subpoena that an did not appear. After considering the action was pending in family court; (4) aforementioned misconduct, the Hearing falsely certified in the subpoena that it Panel determined Respondent is subject was issued in compliance with Rule 45, to discipline for violating the following SCRCP; and (5) failed to set forth in the Rules of Lawyer Discipline: Rule 7(a)(1) subpoena the text required by Rule 45(c) (violating the Rules of Professional Conduct and (d), SCRCP. Respondent then served or any other rules of this jurisdiction
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 Matter of Lundgren, 421 S.C. 300 (2017) 806 S.E.2d 125 regarding professional conduct of lawyers) subject to the disciplinary authority of the and Rule 7(a)(5) (engaging in conduct Supreme Court of South Carolina and the tending to pollute the administration of Commission on Lawyer Conduct pursuant justice or to bring the courts or the to Rule 8.5(a) of the South Carolina Rules of legal profession into disrepute or conduct Professional Conduct, Rule 407, SCACR. demonstrating an unfitness to practice law). Rule 413, SCACR. The Hearing Panel found [2] The authority to discipline lawyers and Respondent violated Rule 404, SCACR, the the manner in which the discipline is imposed South Carolina Rules of Civil Procedure, is a matter within the Court's discretion. In re and the South Carolina Rules of Family Van Son, 403 S.C. 170, 174, 742 S.E.2d 660, Court and was therefore subject to discipline 662 (2013). The sole question remaining for pursuant to Rule 7(a)(1) of Rule 413, the Court is whether to impose the Hearing SCACR. Panel's recommended sanction. Id. (“When the respondent is in default the **128 Court need only determine the appropriate sanction.”). DISCUSSION
[1] Since Respondent failed to answer the Although not admitted to practice law in formal charges, he is deemed to have South Carolina, Respondent nevertheless admitted the allegations in the charges. engaged in the practice of law in this Rule 24(a), RLDE, Rule 413, SCACR. state. We agree with the Hearing Panel's Further, since he failed to appear for consideration of aggravating factors, namely the panel hearing, Respondent is deemed Respondent's lack of cooperation in the to have admitted the factual allegations disciplinary investigation, failure to answer and to have conceded the merits of any the formal charges, failure to appear recommendations considered at the panel at the disciplinary hearing, and prior hearing. Rule 24(b), RLDE, Rule 413, disciplinary history. In re Hall, 333 S.C. SCACR. 247, 251, 509 S.E.2d 266, 268 (1998) (“An attorney's failure to answer charges Pursuant to Rule 3(b), RLDE, Rule or appear to defend or explain alleged 413, SCACR, the Commission on Lawyer misconduct indicates an obvious disinterest Conduct has jurisdiction over all allegations in the practice of law. Such an attorney that a lawyer has committed misconduct. is likely to face the most severe sanctions “Lawyer” is defined as “a lawyer not because a central purpose of the disciplinary admitted in this jurisdiction if the lawyer process is to protect the public from provides or offers to provide any legal unscrupulous and indifferent lawyers.”); In services in this jurisdiction.” Rule 2(q), re Jacobsen, 386 S.C. 598, 607, 690 S.E.2d RLDE, Rule 413, SCACR. Accordingly, 560, 564 (2010) (recognizing disciplinary even though he is not admitted to practice history is an appropriate consideration in law in South *305 Carolina, Respondent is
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 4 Matter of Lundgren, 421 S.C. 300 (2017) 806 S.E.2d 125 imposing sanctions). Respondent presented Lawyers' Fund for Client Protection in the no mitigating evidence. amount of $758.95.
Given the nature of Respondent's *306 Within fifteen (15) days of the date misconduct, his lack of participation in the of this opinion, Respondent shall file an disciplinary process, and absence of any affidavit with the Clerk of Court showing mitigating factors, we adopt the sanctions that he has complied with Rule 30 of Rule recommended by the Hearing Panel and 413, SCACR. find it appropriate to permanently debar Respondent, prohibiting him from seeking DEBARRED. any form of admission to practice law (including pro hac vice admission) in South Carolina and prohibiting him from BEATTY, C.J., KITTREDGE, HEARN, advertising or soliciting legal services in FEW, and JAMES, JJ., concur. the state. Further, we order that within thirty (30) days of the date of this opinion, All Citations he pay the costs of the investigation and prosecution of this matter and reimburse the 421 S.C. 300, 806 S.E.2d 125
End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 5 SCBar - Ethics Advisory Opinions Page 1 of 2 SC Bar Ethics Advisory Opinions Ethics Advisory Opinion 89-02 Upon the request of a member of the South Carolina Bar, the Ethics Advisory Committee has rendered this opinion on the ethical propriety of the inquirer s contemplated conduct. This Committee has no disciplinary authority. Lawyer discipline is administered solely by the South Carolina Supreme Court through its Commission on Lawyer Conduct. Full Text An attorney would be in violation of contraband possession laws if he takes possession of narcotic drugs given to him by a client to be used as evidence. Question: Attorney ("A") is representing his client ("C") in a divorce proceeding on the ground of habitual drunkenness caused by use of narcotic drugs. There are no corroborating witnesses because the husband ("H") uses his drugs only at home. while the case is pending the client (C) finds her husband's stash of illegal drugs and brings it to her attorney (A) as evidence. Assuming that without evidence of H's possession of this stash of illegal drugs as evidence, C will be unable to prove grounds for divorce, what are A's ethical responsibilities with regard to this contraband? Can the attorney ethically have the drugs analyzed by a chemist for evidence? [The attorney posing these questions added: If he keeps it, he has apparently violated contraband possession laws. If he destroys it, he has apparently obstructed justice. If he gives it to the police, he probably has destroyed his client's ability to get support and rendered her and her children indigent by having the husband put in jail or at the very least fired from his job.] Opinion If A's possession of the drugs would be illegal under applicable substantive criminal law, A may not take possession of the drugs and have them analyzed by a chemist. No opinion is given regarding the legal effect of the contemplated activity. Assuming, as intimated in the question, that the contemplated activity would be illegal in its own right, A may not engage in such activity. This opinion is qualified by several observations. Under the Rules of Procedure and Scope of Authority for the Ethics Advisory Committee of the South Carolina Bar (adopted April 18, 1979), a guidelines for submission of a request for an opinion is that "[]the question should state specifically how it applies to which Disciplinary Rule or Ethical Consideration of the Code of Professional Responsibility as adopted in South Carolina under Rule 32 of the Supreme Court Rules of Practice." Further, "[t]he Committee cannot render interpretations of statutes." "[T]he Committee will issue an advisory opinion to any member of the South Carolina Bar on the propriety of professional conduct in which he or she proposes to engage when the proposed conduct is specifically described in the inquiry." Id., Rule 4. "The Committee will not issue advisory opinions concerning questions of law ... or involving statutory interpretation." Id., Rule 7. For the purpose of this Request, the attorney posing the questions is assumed to have answered his own question regarding the consequences of retention, destruction, or release of the contraband to law enforcement. It is therefore assumed that the only question posed by this Ethics Advisory Request is whether A can ethically have the drugs analyzed by a chemist for evidence. The specific ethical problem, although not identified as such in the Request, appears to be how the attorney can zealously represent the interests of his client without exceeding the bounds of the law. Without giving an opinion on the subject, we express reservation about the assumed consequence that C would necessarily lose her divorce action without presenting evidence of a specific stash of drugs. We http://www.scbar.org/member_resources/ethics_advisory_opinions/&id=211 3/19/2008 SCBar - Ethics Advisory Opinions Page 2 of 2 also question why H would be subjected to criminal prosecution if the drugs were turned over to the police but would not be subject to criminal prosecution if the drugs were use din the divorce action, as the judge, bailiff, deputy sheriff, court reporter, or any other person in the courtroom could still report the matter to the police. As noted, we express no opinion as to whether A's or C's personal possession of the drugs would indeed violate contraband possession laws. This is a question of law. Nor do we express an opinion about whether A's or C's destruction of the drugs would constitute obstruction of justice. This is also a question of law. An attorney must observe and advise his client to observe the law, though until a statute shall have been construed and interpreted by competent adjudication, the attorney is free and entitled to advise as to its validity and as to what he conscientiously believes to be its just meaning and extent. In re Ryder, 263 F. Supp. 360 at 368 (E.D. Va. 1967), aff'd, 381 F.2d 713 (4th Cir. 1967). See also DR 7-102(A) [(7) and (8)], Proposed [Model] Rule 1.2(d), and DR 7-101(A)(1). In his representation of a client, a lawyer may refuse to aid or participate in conduct that he believes to be unlawful, even though there is some support for argument that the conduct is legal. DR 7- 101(B)(2). If it be assumed for the purposes of this Request that A would be in violation of contraband possession laws if he took possession of the drugs, he may not ethically do so. In re Ryder. A would therefore be prohibited from having the drugs analyzed. Yet, in People v. Belge, 372 N.Y.S.2d 798, 83 Misc. 2d 186 (1975), charges against an attorney for violation of a "trivial pseudo-criminal" statue were dismissed "in the interest of justice," where violation of the law in question was weighed against the attorney's duty to protect his client's Fifth Amendment privilege in a serious criminal matter. Belge involves the disposition of a criminal charge against an attorney, not specifically the disposition of an ethical charge. However, the attorney's ethical duties were apparently considered in determining the proper scope of the substantive criminal law in question. We express no opinion about the relative "trivialness" of a potential violation of law in the instant case, nor about the relative "seriousness" of the client's cause or rights. But assuming that the contemplated activity would constitute a violation of criminal law by A, A may not engage in it. Further, if his client C's possession or destruction of the contraband would be a violation of the law, he may not counsel his client to break the law or continue breaking the law. DR 7- 102(A)(7). A is ethically prohibited from disclosing the past crime of his client. DR 4-101(B)(1); Proposed Rule 1.6(a). A has no general duty to report a client's intention to commit a crime. Cf. DR 4- 101(C) and see Proposed Rule 1.6(b). We express no opinion about the law of spousal privilege and whether A's client C, has a privilege to withhold information about H, which privilege A might be bound to observe at the instance of C. If only a potential violation of the law by C is considered, the fact of C's bringing the incriminating evidence to A for information purposes is a communication which is subject to the attorney-client privilege. State v. Olwell, 394 P.2d 681 (Wash. 1964). In short, A may not break the law in order to further the cause of his client. If the furtherance of a client's cause may in some instances constitute an actual exception to the applicability of a substantive criminal law, the attorney may engage in such conduct as would not be forbidden by the substantive criminal law under such application. We cannot give an opinion on the current extent of the substantive criminal laws identified in this Request.
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http://www.scbar.org/member_resources/ethics_advisory_opinions/&id=211 3/19/2008 6/13/2019 SC Judicial Branch
RULE 13 SUBPOENAS (a)(1) Issuance of Subpoenas. Upon the request of any party, the clerk of court shall issue subpoenas or subpoenas duces tecum for any person or persons to attend as witnesses in any cause or matter in the General Sessions Court. An attorney, as an officer of the court, may also issue and sign subpoenas or subpoenas duces tecum for any person or persons to attend as witnesses in any cause or matter in the General Sessions Court. The subpoena shall state the name of the court, the title of the action, and shall command each person to whom it is directed to attend and give testimony, or otherwise produce documentary evidence at a specified court proceeding. The subpoena shall also set forth the name of the party requesting the appearance of such witness and the name of counsel for the party, if any. The clerk of court or attorney issuing the subpoena shall utilize a court-approved subpoena form. (2) Issuance of Subpoena for Personal or Confidential Information About a Victim. A subpoena requiring the production of personal or confidential information about a victim may be served on a third party only by court order. Before entering the order and unless there are exceptional circumstances, the court must require giving notice to the victim so that the victim can move to quash or modify the subpoena or otherwise object.
Note to 2019 Amendment: The 2019 amendment provides that an attorney is also authorized to issue and sign a subpoena on behalf of a court in which that attorney is licensed to practice. The amendment also makes clear that subpoenas may only be issued to summon a witness to appear or present documentary evidence at a court proceeding. The rule allowing an attorney to issue and sign a subpoena does not apply to any request for a subpoena for a witness located in another state, which is governed by the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. See S.C. Code. Ann. §§ 19-9-10 et seq. (2014). New paragraph (a)(2) adopts a version of the federal rule intended to provide a protective mechanism when the defense subpoenas a third party to provide personal or confidential information about a victim. The amendment requires judicial approval before service of a subpoena seeking personal or confidential information about a victim from a third party. (b) Service. A subpoena may be served by the sheriff of any county in which the witness may be found, by his deputy or by any other person who is not a party and is not less than eighteen years of age. Service of a subpoena upon an individual may be made by delivering a copy to him personally, or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy to an agent authorized by appointment or by law to receive service. Service may be made on any day of the week. Note: This rule replaces S.C. Code Ann. Section 19-7-10 (1976) repealed by Act No. 100 of 1985. The language is taken from Section 19-7-10 (1976) and Rule 4(d), 45(c), SCRCP. Amended by Order dated May 1, 2019.
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Lawyers Helping Lawyers Upon the request of a member of the South Carolina Bar, the Ethics Advisory Committee Legislative Information has rendered this opinion on the ethical propriety of the inquirer’s contemplated conduct. Member Benefits This Committee has no disciplinary authority. Lawyer discipline is administered solely by the South Carolina Supreme Court through its Commission on Lawyer Conduct. Member Directory
Practice Management (PMAP) Full Text Pro Bono Program Ethics Advisory Opinion 01-05 Resources Rules Of Conduct South Carolina Lawyer Facts Sections & Committees Prosecutor A obtains and serves a subpoena duces Senior Lawyers Division tecum during a criminal investigation prior to the Young Lawyers Division issuance of an arrest warrant or true billed indictment. Prosecutor B then uses the information obtained pursuant to the subpoena in prosecuting the Defendant.
Question May Prosecutor B who is not involved in the issuance of the subpoena ethically use the information obtained pursuant to the subpoena duces tecum in prosecuting the case?
Summary It would be unethical for an attorney to obtain a subpoena duces tecum in a criminal case prior to there being an active arrest warrant or true billed indictment. Further, it would be unethical for a subsequent attorney, who is aware of the unethical conduct of the first attorney, to utilize the subpoenaed information in a criminal prosecution.
Opinion This committee may not render advice regarding matters of substantive or procedural law. However, the attorney may wish to consider Rule 13 of the South Carolina Rules of Criminal Procedure, the South Carolina Rules of Magistrates Court and State v. Williams, 301 S.C. 369, 392 S.E.2d 181 (SC 1990).
Prosecutor A
In General Sessions Court a subpoena duces tecum may be issued in accordance with Rule 13, SCRCrimP. It allows the Circuit Clerk of Court to issue such subpoenas for any cause or matter in the General Sessions Court. Magistrate and municipal courts, have no subpoena duces tecum authority, except in a DUI case.
Rule 8.4 (g) provides that an attorney may not, “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.”(emphasis added).
If the rules of procedure or substantive law do not allow for the issuance of criminal subpoenas prior to the existence of an arrest warrant or a true billed indictment, then the request or effort of Prosecutor A to obtain or serve such a subpoena would violate this rule. The attorney may also consider Rule 3.3 and Comments (candor toward tribunals) and 4.1(a) (truthfulness in statements to others).
Prosecutor B
Rule 8.4 (a) states that it is professional misconduct for a lawyer to “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” (Emphasis added).
Rule 5.1(c)(1) provides that a lawyer shall be responsible for another lawyers violation of the rules of professional conduct if the lawyer “orders or, with knowledge of the specific conduct, ratifies the conduct involved.”
If the first prosecutor has in fact acted unethically in his conduct of obtaining or serving a subpoena duces tecum prior to the issuance of an active arrest warrant or true billed indictment, a subsequent prosecutor who knowingly utilizes the information would violate Rule 5.1(c)(1) and Rule 8.4 (a) of the Rules of Professional Conduct.
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Formal Opinion 480 March 6, 2018
Confidentiality Obligations for Lawyer Blogging and Other Public Commentary Lawyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.1
Introduction Lawyers comment on legal topics in various formats. The newest format is online publications such as blogs,2 listserves, online articles, website postings, and brief online statements or microblogs (such as Twitter®) that “followers” (people who subscribe to a writer’s online musings) read. Lawyers continue to present education programs and discuss legal topics in articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews. They also make public remarks in online informational videos such as webinars and podcasts (collectively “public commentary”).3 Lawyers who communicate about legal topics in public commentary must comply with the Model Rules of Professional Conduct, including the Rules regarding confidentiality of information relating to the representation of a client. A lawyer must maintain the confidentiality of information relating to the representation of a client, unless that client has given informed consent to the disclosure, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by Rule 1.6(b). A lawyer’s public commentary may also implicate the lawyer’s duties under other Rules, including Model Rules 3.5 (Impartiality and Decorum of the Tribunal) and 3.6 (Trial Publicity). Online public commentary provides a way to share knowledge, opinions, experiences, and news. Many online forms of public commentary offer an interactive comment section, and, as such, are also a form of social media.4 While technological advances have altered how lawyers
1 This opinion is based on the ABA Model Rules of Professional Conduct as amended by the ABA House of Delegates through August 2016 [hereinafter the “Model Rules”]. The laws, court rules, regulations, rules of professional conduct and opinions promulgated in individual jurisdictions are controlling. 2 A “blog” is commonly understood to be a website consisting of written entries (posts) regularly updated and typically written in an informal or conversational style by an individual or small group. As recently described in a California State Bar advisory opinion, “[b]logs written by lawyers run the gamut from those having nothing to do with the legal profession, to informational articles, to commentary on legal issues and the state of our system of justice, to self-promotional descriptions of the attorney’s legal practice and courtroom successes to overt advertisements for the attorney or her law firm.” State Bar of Cal. Comm’n on Prof’l Responsibility & Conduct Op. 2016-196 (2016). 3 These are just examples of public written communications but this opinion is not limited to these formats. This opinion does not address the various obligations that may arise under Model Rules 7.1-7.5 governing advertising and solicitation, but lawyers may wish to consider their potential application to specific communications. 4 Lawyers should take care to avoid inadvertently forming attorney-client relationships with readers of their public commentary. Although traditional print format commentary would not give rise to such concerns, lawyers interacting with readers through social media should be aware at least of its possibility. A lawyer commenting publicly about a legal matter standing alone would not create a client-lawyer relationship with readers of the commentary. See Model Rule 1.18 for duties to prospective clients. However, the ability of readers/viewers to make comments or to Formal Opinion 480 ____ _ 2 communicate, and therefore may raise unexpected practical questions, they do not alter lawyers’ fundamental ethical obligations when engaging in public commentary.5
Duty of Confidentiality Under Rule 1.6 Model Rule 1.6(a) provides: A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). As Comment [2] emphasizes, “[a] fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.” This confidentiality rule “applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”6 In other words, the scope of protection afforded by Rule 1.6 is far broader than attorney-client privileged information. Unless one of the exceptions to Rule 1.6(a) is applicable, a lawyer is prohibited from commenting publicly about any information related to a representation. Even client identity is protected under Model Rule 1.6.7 Rule 1.6(b) provides other exceptions to Rule 1.6(a).8 However, because it is highly unlikely that a disclosure exception under Rule 1.6(b) would apply to a ask questions suggests that, where practicable, a lawyer include appropriate disclaimers on websites, blogs and the like, such as “reading/viewing this information does not create an attorney-client relationship.” Lawyer blogging may also create a positional conflict. See D.C. Bar Op. 370 (2016) (discussing lawyers’ use of social media advising that “[c]aution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict.”) See also ELLEN J. BENNETT, ELIZABETH J. COHEN & HELEN W. GUNNARSSON, ANNOTATED MODEL RULES OF PROFESSIONAL CONDUCT 148 (8th ed. 2015) (addressing positional conflicts). See also STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS 50-51 (11th ed. 2018) (“[S]ocial media presence can pose a risk for attorneys, who must be careful not to contradict their firm’s official position on an issue in a pending case”). This opinion does not address positional conflicts. 5 Accord D.C. Bar Op. 370 (2016) (stating that a lawyer who chooses to use social media must comply with ethics rules to the same extent as one communicating through more traditional forms of communication). 6 MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. [3] (2017). There is also a general principle noted in the Restatement (Third) of the Law Governing Lawyers that “[c]onfidential client information does not include what a lawyer learns about the law, legal institutions such as courts and administrative agencies, and similar public matters in the course of representing clients.” AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW (THIRD) THE LAW GOVERNING LAWYERS §59, cmt. e (1998). It is beyond the scope of this opinion to define what specific elements will be considered to distinguish between protected client information and information about the law when they entwine. 7 See Wis. Op. EF-17-02 (2017) (“a client’s identity, as well as a former client’s identity, is information protected by [Rule 1.6]”); State Bar of Nev. Comm’n on Ethics and Prof’l Responsibility Formal Op. 41, at 2 (2009) (“Even the mere identity of a client is protected by Rule 1.6.”); State Bar of Ariz. Comm. on the Rules of Prof’l Conduct Op. 92-04 (1992) (explaining that a firm may not disclose list of client names with receivable amounts to a bank to obtain financing without client consent). See also MODEL RULES OF PROF’L CONDUCT R. 7.2 cmt. [2] (2017) & N.Y. Rules of Prof’l Conduct R. 7.1(b)(2) (requiring prior written consent to use a client name in advertising). But see Cal. Formal Op. 2011-182 (2011) (“…[I]n most situations, the identity of a client is not considered confidential and in such circumstances Attorney may disclose the fact of the representation to Prospective Client without Witness Client’s consent.”) (citing to LA County Bar Ass’n Prof’l Responsibility & Ethics Comm’n Op. 456 (1989)). 8 See MODEL RULES OF PROF’L CONDUCT R. 1.6(b)(1)-(7) (2017). Formal Opinion 480 ____ _ 3 lawyer’s public commentary, we assume for this opinion that exceptions arising under Rule 1.6(b) are not applicable.9 Significantly, information about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality under Model Rule 1.6.10 The duty of confidentiality extends generally to information related to a representation whatever its source and without regard to the fact that others may be aware of or have access to such knowledge.11 A violation of Rule 1.6(a) is not avoided by describing public commentary as a “hypothetical” if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.12 Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood. The salient point is that when a lawyer participates in public commentary that includes client information, if the lawyer has not secured the client’s informed consent or the disclosure is
9 For ethical issues raised when a lawyer is participating in an investigation or litigation and the lawyer makes extrajudicial statements, see infra at page 6. 10 See ABA Formal Op. 479 (2017). See also In re Anonymous, 932 N.E.2d 671 (Ind. 2010) (neither client’s prior disclosure of information relating to her divorce representation to friends nor availability of information in police reports and other public records absolved lawyer of violation of Rule 1.6); Iowa S. Ct. Attorney Disciplinary Bd. v. Marzen, 779 N.W.2d 757 (Iowa 2010) (all lawyer-client communications, even those including publicly available information, are confidential); Lawyer Disciplinary Bd. v. McGraw, 461 S.E.2d 850 (W. Va. 1995) (“[t]he ethical duty of confidentiality is not nullified by the fact that the information is part of a public record or by the fact that someone else is privy to it”); State Bar of Ariz. Op. 2000-11 (2000) (lawyer must “maintain the confidentiality of information relating to representation even if the information is a matter of public record”); State Bar of Nev. Op. 41 (2009) (contrasting broad language of Rule 1.6 with narrower language of Restatement (Third) of the Law Governing Lawyers); Pa. Bar Ass’n Informal Op. 2009-10 (2009) (absent client consent, lawyer may not report opponent’s misconduct to disciplinary board even though it is recited in court’s opinion); Colo. Formal Op. 130 (2017) (“Nor is there an exception for information otherwise publicly available. For example, without informed consent, a lawyer may not disclose information relating to the representation of a client even if the information has been in the news.”); But see In re Sellers, 669 So. 2d 1204 (La. 1996) (lawyer violated Rule 4.1 by failing to disclose existence of collateral mortgage to third party; because “mortgage was filed in the public record, disclosure of its existence could not be a confidential communication, and was not prohibited by Rule 1.6”); Hunter v. Va. State Bar, 744 S.E.2d 611 (Va. 2013) (rejecting state bar’s interpretation of Rule 1.6 as prohibiting lawyer from posting on his blog information previously revealed in completed public criminal trials of former clients). See discussion of Hunter, infra, at note 20. 11 ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 04-433 (2004) (“Indeed, the protection afforded by Rule 1.6 is not forfeited even when the information is available from other sources or publicly filed, such as in a malpractice action against the offending lawyer.”) 12 MODEL RULES OF PROF’L RESPONSIBILITY R. 1.6 cmt. [4] (2017). The possibility of violating Rule 1.6 using hypothetical facts was discussed in ABA Formal Opinion 98-411, which addressed a lawyer’s ability to consult with another lawyer about a client’s matter. That opinion was issued prior to the adoption of what is now Rule 1.6(b)(4) which permits lawyers to reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to secure legal advice about the lawyer’s compliance with these Rules. However, the directive provided in Formal Opinion 98-411 remains sound, namely, that a lawyer use caution when constructing a hypothetical. For an illustrative case, see In re Peshek, M.R. 23794, 2009 PR 00089 (Ill. 2010). Peshek was suspended for sixty days for violating Rule 1.6. Peshek served as a Winnebago County Public defender for about 19 years. After being assaulted by a client, Peshek began publishing an Internet blog, about a third of which was devoted to discussing her work at the public defender's office and her clients. Peshek’s blog contained numerous entries about conversations with clients and various details of their cases, and Peshek referred to her clients by either first name, a derivative of their first name, or their jail ID number, which were held to be disclosures of confidential information in violation of Rule 1.6. She was suspended from practice for 60 days. Formal Opinion 480 ____ _ 4 not otherwise impliedly authorized to carry out the representation, then the lawyer violates Rule 1.6(a).13 Rule 1.6 does not provide an exception for information that is “generally known” or contained in a “public record.”14 Accordingly, if a lawyer wants to publicly reveal client information, the lawyer15 must comply with Rule 1.6(a).16
First Amendment Considerations
While it is beyond the scope of the Committee’s jurisdiction to opine on legal issues in formal opinions, often the application of the ethics rules interacts with a legal issue. Here lawyer speech relates to First Amendment speech. Although the First Amendment to the United States Constitution guarantees individuals’ right to free speech, this right is not without bounds.17 Lawyers’ professional conduct may be constitutionally constrained by various professional regulatory standards as embodied in the Model Rules, or similar state analogs. For example, when a lawyer acts in a representative capacity, courts often conclude that the lawyer’s free speech rights are limited.18
13 We again note that Rule 1.6(b) provides other exceptions to Rule 1.6(a). 14 Model Rule 1.9 addresses the duties lawyers owe to former clients. Rule 1.9(c)(1) permits a lawyer, who has formerly represented a client, to use information related to the representation that has become generally known to the disadvantage of a former client, and Rule 1.9(c)(2) prohibits a lawyer from revealing information relating to the representation except as the Rules permit or require with respect to a current client. This opinion does not address these issues under Model Rule 1.9. The generally known exception in Rule 1.9(c)(1) is addressed in ABA Formal Opinion 479. 15 Lawyers also have ethical obligations pursuant to Rules 5.1 and 5.3 to assure that lawyers and staff they supervise comply with these confidentiality obligations. 16 In addition to the requirements of Rules 1.6(a), a lawyer may consider other practical client relations and ethics issues before discussing client information in public commentary to avoid disseminating information that the client may not want disseminated. For instance, Model Rule 1.8(b) reads: “A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.” Rule 1.8(b) could be read to suggest that a lawyer may use client information if it does not disadvantage a client. The lawyer, nevertheless, has a common-law fiduciary duty not to profit from using client information even if the use complies with the lawyer’s ethical obligations. See RESTATEMENT OF THE LAW (THIRD) THE LAW GOVERNING LAWYERS § 60(2) (1998) (“a lawyer who uses confidential information of a client for the lawyer’s pecuniary gain other than in the practice of law must account to the client for any profits made”). Accord D.C. Bar Op. 370 (2016) (“It is advisable that the attorney share a draft of the proposed post or blog entry with the client, so there can be no miscommunication regarding the nature of the content that the attorney wishes to make public. It is also advisable, should the client agree that the content may be made public, that the attorney obtain that client’s consent in a written form.”) 17 See Gregory A. Garbacz, Gentile v. State Bar of Nevada: Implications for the Media, 49 WASH. & LEE L. REV. 671 (1992); D. Christopher Albright, Gentile v. State Bar: Core Speech and a Lawyer’s Pretrial Statements to the Press, 1992 BYU L. REV. 809 (1992); Kathleen M. Sullivan, The Intersection of Free Speech and the Legal Profession: Constraints on Lawyers’ First Amendment Rights, 67 FORDHAM L. REV. 569 (1998). See also Brandon v. Maricopa City, 849 F.3d 837 (9th Cir. 2017) (when a lawyer speaks to the media in her official capacity as an attorney for county officials, such speech involves her conduct as a lawyer and therefore is not “constitutionally protected citizen speech”). 18 See In re Snyder, 472 U.S. 634 (1985) (a law license requires conduct “compatible with the role of courts in the administration of justice”); U.S. Dist. Ct. E. Dist. of Wash. v. Sandlin, 12 F.3d 861 (9th Cir. 1993) (“once a lawyer is admitted to the bar, although he does not surrender his freedom of expression, he must temper his criticisms in accordance with professional standards of conduct”); In re Shearin, 765 A.2d 930 (Del. 2000) (lawyers’ constitutional free speech rights are qualified by their ethical duties); Ky. Bar Ass’n v. Blum, 404 S.W.3d 841 (Ky. 2013) (“It has routinely been upheld that regulating the speech of attorneys is appropriate in order to maintain the public confidence and credibility of the judiciary and as a condition of ‘[t]he license granted by the court.’” [citing Snyder]); State ex rel. Neb. State Bar Ass’n v. Michaelis, 316 N.W.2d 46 (Neb. 1982) (“A layman may, perhaps, pursue his theories of free speech or political activities until he runs afoul of the penalties of libel or slander, or into Formal Opinion 480 ____ _ 5 The plain language of Model Rule 1.6 dictates that information relating to the representation, even information that is provided in a public judicial proceeding, remains protected by Model Rule 1.6(a).19 A lawyer may not voluntarily disclose such information, unless the lawyer obtains the client’s informed consent, the disclosure is impliedly authorized to carry out the representation, or another exception to the Model Rule applies.20
At least since the adoption of the ABA Canons of Ethics, the privilege of practicing law has required lawyers to hold inviolate information about a client or a client’s representation beyond that which is protected by the attorney-client privilege. Indeed, lawyer ethics rules in many jurisdictions recognize that the duty of confidentiality is so fundamental that it arises before a lawyer–client relationship forms, even if it never forms,21 and lasts well beyond the end of the professional relationship.22 It is principally, if not singularly, the duty of confidentiality that enables and encourages a client to communicate fully and frankly with his or her lawyer.23
Ethical Constraints on Trial Publicity and Other Statements Model Rule 3.5 prohibits a lawyer from seeking to influence a judge, juror, prospective juror, or other official by means prohibited by law. Although using public commentary with the client’s informed consent may be appropriate in certain circumstances, lawyers should take care not to run afoul of other limitations imposed by the Model Rules. 24
some infraction of our statutory law. A member of the bar can, and will, be stopped at the point where he infringes our Canons of Ethics.”). 19 See ABA Formal Op. 479 (2017). See also cases and authorities cited supra at note 10. 20 One jurisdiction has held that a lawyer is not prohibited from writing a blog that includes information relating to a representation that was disclosed in an open public judicial proceeding after the public proceeding had concluded. In Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013) the Supreme Court of Virginia held that the application of Virginia Rule of Professional Conduct 1.6(a) to Hunter’s blog posts was an unconstitutional infringement of Hunter’s free speech rights. The Committee regards Hunter as limited to its facts. Virginia’s Rule 1.6 is different than the ABA Model Rule. The Virginia Supreme Court rejected the Virginia State Bar’s position on the interpretation and importance of Rule 1.6 because there was “no evidence advanced to support it.” But see People vs. Isaac which acknowledges Hunter but finds a violation of Colorado Rule 1.6. We note, further, that the holding in Hunter has been criticized. See Jan L. Jacobowitz & Kelly Rains Jesson, Fidelity Diluted: Client Confidentiality Give Way to the First Amendment & Social Media in Virginia State Bar ex rel. Third District Committee v. Horace Frazier Hunter, 36 CAMPBELL L. REV. 75, 98-106 (2013). 21 See MODEL RULES OF PROF’L CONDUCT R. 1.18(b) (2017) (Even when no client–lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation except as permitted by the Rules). Implementation Chart on Model Rule 1.18, American Bar Ass’n (Sept. 29, 2017), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc_1_18.authcheckdam .pdf. 22 See MODEL RULES OF PROF’L CONDUCT R. 1.9 (2017); see also D.C. Bar Op. 324 (Disclosure of Deceased Client’s Files) (2004); Swidler & Berlin v. United States, 524 U.S. 399 (1998). See also GILLERS, supra note 4, at 34 (“[w]hether the [attorney-client] privilege survives death depends on the jurisdiction but in most places it does”). 23 See generally Preamble to ABA Model Rules for a general discussion of the purposes underlying the duty of confidentiality. See also GEOFFREY C. HAZARD JR. & W. WILLIAM HODES, THE LAW OF LAWYERING, §§ 9.2 & 9.3 at 9-6, 9-14 (3d ed. Supp. 2012). 24 See, e.g., In re Joyce Nanine McCool 2015-B-0284 (Sup. Ct. La. 2015) (lawyer disciplined for violation of Rule 3.5 by attempting to communicate with potential jurors through public commentary); see also The Florida Bar v. Sean William Conway, No. SC08-326 (2008) (Sup. Ct. Fla.) (lawyer found to have violated Rules 8.4(a) and (d) for posting on the internet statements about a judge’s qualifications that lawyer knew were false or with reckless disregard as to their truth or falsity). Formal Opinion 480 ____ _ 6 Lawyers engaged in an investigation or litigation of a matter are subject to Model Rule 3.6, Trial Publicity. Paragraph (a) of Rule 3.6 (subject to the exceptions provided in paragraphs (b) or (c)) provides that: A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. Thus any public commentary about an investigation or ongoing litigation of a matter made by a lawyer would also violate Rule 3.6(a) if it has a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter, and does not otherwise fall within the exceptions in paragraphs (b) or (c) of Model Rule 3.6.25 Conclusion Lawyers who blog or engage in other public commentary may not reveal information relating to a representation that is protected by Rule 1.6(a), including information contained in a public record, unless disclosure is authorized under the Model Rules.
25 Pa. Bar Ass’n Formal Op. 2014-300 (2014) (lawyer involved in pending matter may not post about matter on social media). This opinion does not address whether a particular statement “will have a substantial likelihood of materially prejudicing an adjudicative proceeding” within the meaning of Model Rule 3.6.
AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
321 N. Clark Street, Chicago, Illinois 60654-4714 Telephone (312) 988-5328 CHAIR: Barbara S. Gillers, New York, NY ■ John M. Barkett, Miami, FL ■ Wendy Wen Yun Chang, Los Angeles, CA ■ Hon. Daniel J. Crothers, Bismarck, ND ■ Keith R. Fisher, Arlington, VA ■ Douglas R. Richmond, Chicago, IL ■ Michael H. Rubin, Baton Rouge, LA ■ Lynda Shely, Scottsdale, AZ, ■ Elizabeth C. Tarbert, Tallahassee, FL. ■ Allison Wood, Chicago, IL
CENTER FOR PROFESSIONAL RESPONSIBILITY: Dennis A. Rendleman, Ethics Counsel; Mary McDermott, Associate Ethics Counsel
©2018 by the American Bar Association. All rights reserved.
AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
Formal Opinion 486 May 9, 2019
Obligations of Prosecutors in Negotiating Plea Bargains for Misdemeanor Offenses
Model Rules 1.1, 1.3, 3.8(a), (b), and (c), 4.1, 4.3, 5.1, 5.3, and 8.4(a), (c) and (d) impose obligations on prosecutors when entering into plea bargains with persons accused of misdemeanors. These obligations include the duty to ensure that each charge incident to a plea has an adequate foundation in fact and law, to ensure that the accused is informed of the right to counsel and the procedure for securing counsel, to avoid plea negotiations that jeopardize the accused’s ability to secure counsel, and, irrespective of whether an unrepresented accused has invoked the right to counsel, to avoid offering pleas on terms that knowingly misrepresent the consequences of acceptance or otherwise pressure or improperly induce acceptance on the part of the accused.1
I. Introduction
This opinion addresses a prosecutor’s obligations under Model Rules 1.1, 1.3, 3.8(a), (b), and (c), 4.1, 4.3, 5.1, 5.3, and 8.4(a), (c), and (d) when negotiating with an unrepresented individual who is or may be entitled to counsel at the time the prosecutor initiates the plea bargaining process for a misdemeanor charge. The opinion also addresses a prosecutor’s duties when plea bargaining with an unrepresented accused on a misdemeanor charge irrespective of whether the accused has invoked the right to counsel. These ethical obligations exist independently of any constitutional or statutory obligations prosecutors may have to an accused.
Part I emphasizes the unique role that prosecutors play in the administration of justice and highlights (i) the expansion of misdemeanor criminal enforcement and (ii) the displacement of trial by plea bargaining. Part II identifies evidence of practices that have developed in some jurisdictions to manage misdemeanor pleas. Part III turns to Model Rule 3.8, addressing first the need for guidance and then examining the text and scope of Rules 3.8(a)-(c) and related rules as they apply to misdemeanor plea bargaining. Part IV identifies the specific obligations of a prosecutor under Rules 3.8(b) and (c) with respect to the accused’s right to counsel. Part V interprets Rules 4.1, 4.3, and 8.4 as they apply to negotiation and entry of plea bargains.
1 This opinion is based on the ABA Model Rules of Professional Conduct as amended by the ABA House of Delegates through August 2018. The laws, court rules, regulations, rules of professional conduct and opinions promulgated in individual jurisdictions are controlling. Formal Opinion 486 ____ _ 2
A. The Special Role of Prosecutors
The professional integrity of prosecutors is essential to the administration of criminal justice.2 Their special role is reflected in a distinctive standard of professional responsibility. Under the Model Rules, a prosecutor “has the responsibility of a minister of justice and not simply that of an advocate.”3 Canon 5 of the 1908 American Bar Association Canons of Professional Ethics stated that “[t]he primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done.”4 The ABA Model Code of Professional Responsibility also emphasized a categorical difference between the responsibility of a public prosecutor and “that of the usual advocate.”5 A prosecutor’s duty
is to seek justice, not merely to convict. This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he may also make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubts.6
As this Committee has emphasized in prior opinions, there are “many excellent prosecutors who scrupulously follow or exceed the mandates of the Rules of Professional Conduct.”7 This opinion focuses on the distinctive challenges and obligations of prosecutors when negotiating pleas in misdemeanor cases.
2 See JOHN JAY DOUGLASS, NATIONAL COLLEGE OF DISTRICT ATTORNEYS, ETHICAL ISSUES IN PROSECUTION 36 (1988) (“The first, best, and most effective shield against injustice for an individual accused, or society in general, must be found not in the persons of defense counsel, trial judge, or appellate jurist, but in the integrity of the prosecutor.”) (quoting former prosecutor Carol Corrigan, Commentary, Prosecutorial Ethics, 13 HASTINGS CONST. L.Q. 537, 537 (1986)). 3 MODEL RULES OF PROF’L CONDUCT R. 3.8 cmt. [1]. See also ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 454 at 3 n.10 (2009) (a prosecutor’s interest “in a criminal prosecution is not that it shall win a case, but that justice shall be done”) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)); ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 467 at 1 (2014) (same). 4 Specific references to the American prosecutor as a minister of justice date to the nineteenth century. See, e.g., People v. Davis, 18 N.W. 362, 363 (Mich. 1884) (the prosecutor is a “sworn minister of justice, whose duty it was, while endeavoring to bring the guilty to punishment, to take care that the innocent should be protected”); Hurd v. People, 25 Mich. 405, 416 (1872) (“The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent. His object like that of the court, should be simply justice; and he has no right to sacrifice this to any pride of professional success.”), superseded on other grounds by statute, 1986 Mich. Pub. Acts 114, as stated in People v. Koonce, 648 N.W.2d 153, 155-56 (Mich. 2002). 5 MODEL CODE OF PROF’L RESPONSIBILITY EC 7-13 (1980). 6 Id. 7 ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 14-467 at 6 (2014) (on the supervisory and managerial responsibilities of prosecutors); id. at 1 (“We believe that most prosecutors know and follow the rules of professional conduct. Indeed, the laudable efforts of such prosecutors have provided good examples” for this and other opinions of the Committee.). Formal Opinion 486 ____ _ 3
B. Background on Misdemeanor Enforcement
Misdemeanors make up approximately 80 percent of state criminal dockets.8 The number of misdemeanor prosecutions is estimated to have doubled since 1972.9 The expansion has had a “concentrated impact on communities of color.”10 Most misdemeanor arrests result in charges – declination rates are low in many states, sometimes as low as 3 or 4 percent.11 And “the vast majority of defendants plead guilty” at their initial appearance.12 The result is a significant increase in the pre-trial dockets of state and local courts, and daunting legal and administrative burdens for both judges and prosecutors.13 Collateral consequences for
8 See Ben Kempinen, The Ethics of Prosecutor Contact with the Unrepresented Defendant, 19 GEO. J. LEGAL ETHICS 1147, 1148 n.3 (2006) (citing Wisconsin data showing that in 2002, 79 percent of criminal cases filed in the state were for “criminal traffic or misdemeanor” offenses); ROBERT C. LAFOUNTAIN ET AL., EXAMINING THE WORK OF STATE COURTS: AN ANALYSIS OF 2008 STATE COURT CASELOADS 47 (2010) (listing data from study of 11 state dockets). A more recent study estimates that “there are three times as many misdemeanor cases as felony cases filed nationally each year.” Megan Stevenson & Sandra Mayson, The Scale of Misdemeanor Justice, 98 B.U. L. REV. 731, 764 (2017). Although there is variation in the exact classification of low-level offenses across state and federal jurisdictions, in this opinion we use the term “misdemeanor” in its generic sense to refer to any criminal offense less serious than a felony according to the law of the relevant jurisdiction. 9 See ROBERT C. BORUCHOWITZ ET AL., MINOR CRIMES, MASSIVE WASTE: THE TERRIBLE TOLL OF AMERICA’S BROKEN MISDEMEANOR COURTS 11 (2009) (“Most people who go to court in the United States go to misdemeanor courts,” describing growth of misdemeanor prosecutions since 1972); Alexandra Natapoff, Misdemeanors, in 1 REFORMING CRIMINAL JUSTICE 71 (Erik Luna, ed. 2017) (“Most criminal convictions in this country are misdemeanors, and most Americans experience criminal justice through the petty offense process.”). But see Stevenson & Mayson, supra note 8, at 747, 764 (estimating a seventeen percent decline in state misdemeanor filings over the last decade while reporting that the total number of misdemeanor cases remains substantial: 13.2 million in 2016). 10 See ISSA KOHLER-HAUSMANN, MISDEMEANORLAND: CRIMINAL COURTS AND SOCIAL CONTROL IN AN AGE OF BROKEN WINDOWS POLICING 51 & fig.1.10 (2018) (an empirical study of New York City courts, describing data showing that “the dramatic expansion of misdemeanor arrests has been hyperconcentrated on … black, and … Latino individuals”); Stevenson & Mayson, supra note 8, at 737 (finding a “profound … remarkably constant” racial disparity in the misdemeanor arrest rate over the last thirty-seven years); CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, INVESTIGATION OF THE BALTIMORE CITY POLICE DEPARTMENT 55-56 (2016) (reporting data showing that while African Americans make up 63 percent of the population of Baltimore, for “misdemeanor street offense[s], unconnected to a more serious charge” between 2010 and 2015, they comprised 91 percent of trespassing charges, 91 percent of failure to obey charges, 88 percent of hindering charges, 84 percent of disorderly conduct charges, and 90 percent of people charged with resisting arrest where no other charge supported the resisting charge); Sean Webby, Policing in San Jose: Strict Enforcement of “Conduct Crimes,” Are Latinos Targeted?, THE MERCURY NEWS (Apr. 4, 2009), https://www.mercurynews.com/2009/04/04/policing-in-san-jose-strict-enforcement-of- conduct-crimes-are-latinos-targeted/ (reporting that 70 percent of arrests for disturbing the peace, 57 percent of charges for resisting arrest, and 57 percent of arrests for public drunkenness were of Latinos, even though this group comprises less than a third of San Jose residents). 11 See Natapoff, supra note 9, at 78. 12 Id.; see also BORUCHOWITZ ET AL., supra note 9, at 8 (“In New York City in 2000, almost 70 percent of misdemeanor cases were disposed of at the first appearance – most through a guilty plea.”); Protecting the Constitutional Right to Counsel for Indigents Charged with Misdemeanors: Hearing Before the S. Comm. on the Judiciary, 114th Cong. (2015) [hereinafter Hearing] (statement of Prof. Erica J. Hashimoto at 3), https://www.judiciary.senate.gov/imo/media/doc/05-13-15%20Hashimoto%20Testimony.pdf. 13 Hearing times in some jurisdictions run as short as three minutes. See ALISA SMITH ET AL., NAT’L ASS’N OF CRIMINAL DEF. LAWYERS, RUSH TO JUDGMENT: HOW SOUTH CAROLINA’S SUMMARY COURTS FAIL TO PROTECT CONSTITUTIONAL RIGHTS 19 (2017) (reporting that in South Carolina courts the hearings for misdemeanors and other minor crimes average 3.29 minutes and just two minutes long if a few outlier cases are excluded); ALISA Formal Opinion 486 ____ _ 4
misdemeanor convictions have also expanded.14 A misdemeanor conviction can lead to denial of employment, expulsion from school, deportation, denial of a professional license, and loss of eligibility for a wide range of public services including food assistance, public housing, health care, and federal student loans.15
To realize the legitimate law enforcement objectives of plea bargaining, a practice that has become “an essential component of the administration of justice,”16 there must be “fairness in securing agreement between an accused and a prosecutor.”17 This is particularly so in the misdemeanor setting where, as the Supreme Court has warned, “the volume of . . . cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result.”18 Observance of the special obligations of prosecutors under the Rules of Professional Conduct is critical to achieving fair guilty pleas.
II. Evidence of Plea Bargaining Practices in Misdemeanor Cases
Notwithstanding the commitment of most prosecutors to high professional standards, there is evidence that in misdemeanor cases where the accused is or may be legally entitled to counsel, methods of negotiating plea bargains have been used in some jurisdictions that are inconsistent with the duties set forth in the Rules of Professional Conduct. As the report of a comprehensive five-year study chaired by a distinguished group of former prosecutors and judges summarized, “[w]hether because of a desire to move cases through the court system, a desire to keep indigent defense costs down, or ignorance, pervasive and serious problems exist in misdemeanor courts across the country because counsel is oftentimes either not provided, or provided late, to those who are lawfully eligible to be represented.”19 Methods of negotiating pleas documented in this report and other studies include:
SMITH & SEAN MADDAN, NAT’L ASS’N OF CRIMINAL DEF. LAWYERS, THREE-MINUTE JUSTICE: HASTE AND WASTE IN FLORIDA’S MISDEMEANOR COURTS 14-15 (2011); BORUCHOWITZ ET AL., supra note 9, at 32. 14 See National Inventory of the Collateral Consequences of Conviction, JUSTICE CENTER, COUNCIL OF STATE GOVERNMENTS; JAMES B. JACOBS, THE ETERNAL CRIMINAL RECORD 225-300 (2015); Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 N.Y.U. L. REV. 457, 489-94 (2010); BORUCHOWITZ ET AL., supra note 9, at 12-13 (listing collateral consequences); People v. Suazo, 118 N.E.3d 168, 178 (N.Y. 2018) (requiring a jury trial where a misdemeanor conviction carries the potential penalty of deportation; “even if deportation is technically collateral, it is undoubtedly a severe statutory penalty that flows from the federal government as the result of a state criminal conviction”). A misdemeanor conviction can also result in sentence enhancements should the person reoffend. See Nichols v. United States, 511 U.S. 738, 746-48 (1994) (upholding use of misdemeanor DUI conviction to add 25 months to a subsequent felony drug sentence). 15 See sources gathered supra note 14. 16 Santobello v. New York, 404 U.S. 257, 260 (1971); see also id. at 261 (the plea bargain “leads to prompt and largely final disposition of most criminal cases[,] . . . and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty”). Counting both misdemeanors and felonies, “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” Missouri v. Frye, 566 U.S. 134, 143 (2012); see also Lafler v. Cooper, 566 U.S. 156, 170 (2012) (“[C]riminal justice today is for the most part a system of pleas, not a system of trials.”). 17 Santobello, 404 U.S. at 261. 18 Argersinger v. Hamlin, 407 U.S. 25, 34 (1972) (citation omitted). 19 NAT’L RIGHT TO COUNSEL COMM., CONSTITUTION PROJECT, JUSTICE DENIED: AMERICA’S CONTINUING NEGLECT OF OUR CONSTITUTIONAL RIGHT TO COUNSEL 85 (2009) [hereinafter JUSTICE DENIED]. The Committee added that “when counsel is not provided, all too often, the defendant’s waiver of legal representation is inadequate under Supreme Court precedents. As a result, there is a shocking disconnect between the system of justice envisioned by Formal Opinion 486 ____ _ 5
(i) requiring or encouraging plea negotiation with a prosecutor before the right to counsel has been raised;20
(ii) using delay or the prospect of a harsher sentence to dissuade the accused from invoking the right to counsel;21
(iii) gathering arrestees into court en masse and instructing them, prior to any advice regarding the right to counsel or other rights, that they must tell the clerk of the court how they intend to plead;22
(iv) using forms to obtain waivers of the right to counsel and other rights either as a condition of negotiating a plea or following a negotiation absent proper
the Supreme Court’s right-to-counsel decisions and what actually occurs in many of this nation’s courts.” Id. (citation omitted). The Committee’s co-chairs included a former director of the Federal Bureau of Investigations, a former state attorney general, a former district attorney and chair of the National District Attorney’s Association, two former United States Attorneys, and a former state district and state supreme court judge. 20 See Thomas B. Harvey et al., Right to Counsel in Misdemeanor Prosecutions After Alabama v. Shelton, 29 CRIM. JUST. POL’Y REV. 688, 699 (2018) (reporting from court observations in St. Louis, Missouri “that mention of a defendant’s right to counsel occurred after the defendant, prosecutor, and judge have discussed sentencing and have decided that the defendant will enter a formal guilty plea. . . . [P]roceedings usually lasted only a few minutes.”); STEPHEN F. HANLON ET AL., SECTION ON CIVIL RIGHTS AND SOCIAL JUSTICE, AMERICAN BAR ASS’N, DENIAL OF THE RIGHT TO COUNSEL IN MISDEMEANOR CASES: COURT WATCHING IN NASHVILLE, TENNESSEE 8-9 (2017); SIXTH AMENDMENT CTR., ACTUAL DENIAL OF COUNSEL IN MISDEMEANOR COURTS 6 (2015) [hereinafter ACTUAL DENIAL]; SIXTH AMENDMENT CTR., THE CRUCIBLE OF ADVERSARIAL TESTING: ACCESS TO COUNSEL IN DELAWARE’S CRIMINAL COURTS 29-33 (2014); JUSTICE DENIED, supra note 19, at 89 (“In several courts, the Committee’s investigators found that defendants were encouraged to negotiate with prosecutors without the assistance of counsel, and in one court they were required to do so.”); see also BORUCHOWITZ ET AL., supra note 9, at 9, 16-17. This opinion addresses only the ethical obligations of prosecutors, including obligations under Rules 5.1, 5.3, and 8.4(a) toward lawyers and non-lawyers directed or supervised by the prosecutor. The opinion does not address the obligations of courts and court staff. While the Committee recognizes that courts and court staff are involved in some of the practices discussed in this opinion, prosecutors have independent and specific obligations in these circumstances, as discussed in this opinion. 21 See STANDING COMMITTEE ON LEGAL AID AND INDIGENT DEFENDANTS, AM. BAR ASS’N, GIDEON’S BROKEN PROMISE: AMERICA’S CONTINUING QUEST FOR EQUAL JUSTICE 25 (2004) [hereinafter GIDEON’S BROKEN PROMISE] (describing Rhode Island judge who “told the defendant that by requesting a lawyer, the defendant likely would receive three years of jail time instead” of six months, and California judges who told defendants “If you plead guilty today, you’ll go home. If you want an attorney, you’ll stay in jail for two more days” and noting that the judicial encouragement of waivers of fundamental rights is “especially acute” with regard to juvenile defendants); see also JUSTICE DENIED, supra note 19, at 85-86, 87 (noting that in Mississippi “[m]onths may pass before counsel is appointed, causing many people charged with non-violent offenses to serve more time in pretrial custody than warranted for the offenses themselves”) (citations omitted); see also id. at 85-86, 89; BORUCHOWITZ ET AL., supra note 9, at 18-19. 22 See SMITH ET AL., supra note 13, at 8 (reporting from court observation in Richland County that defendants in a “packed courtroom” were told in an address that took less than two minutes that “everyone needed to form a line and come to the front of the room to tell the clerk how they intended to handle their case today. . . . No mention was made of the right to counsel. . . . Over the next hour or so, the defendants formed a line and the clerk worked through the [cases]. This process, though technically in open court, was a secret to observers who were present – whatever conversations the clerk had with those facing charges were not on the record and were inaudible to those in the seating area.”). Formal Opinion 486 ____ _ 6
confirmation that the defendant understands the forms and the rights being waived;23
(v) permitting police officers involved in the investigation of a crime or arrest to act as prosecutors and negotiate pleas;24
(vi) advising defendants of the right to counsel but failing to provide any procedure for asserting or validly waiving that right before requiring plea negotiation with a prosecutor;25 and
(vii) failing to inform indigent defendants of the procedure for requesting a waiver of court application fees associated with assignment of a state subsidized defense lawyer.26
23 See Harvey et al., supra note 20, at 700 (describing process of signing waivers after judge accepted uncounseled guilty plea); BORUCHOWITZ ET AL., supra note 9, at 16 (describing forms presented with instructions simply to sign); GIDEON’S BROKEN PROMISE, supra note 21, at 25 (reporting witness testimony that “in many Georgia courts, the clerk provides defendants with a complicated form that, if signed, serves as a waiver of counsel and guilty plea. Defendants are told that their case will not be called unless they sign the form.”). Forms are sometimes used after displaying a video describing the right to counsel and other important rights. See ACTUAL DENIAL, supra note 20, at 15-16 n.17 (describing use of video recordings to advise defendants of rights); SMITH & MADDAN, supra note 13, at 15, 23 tbl.8 (describing use of video advisements and written forms). However, in some jurisdictions no effort is made to ensure that all the defendants gathered in the screening area have seen the full video or understand its contents (e.g., a video may begin before some defendants arrive or end after others have been called to appear or have to step out of court). See ACTUAL DENIAL, supra note 20, at 15- 16 n.17; SMITH ET AL., supra note 13, at 8. 24 SMITH ET AL., supra note 13, at 19 (In South Carolina’s minor crimes courts, police officers “were the majority of prosecutors in all counties, and nearly the sole prosecutor of defendants in [four]. . . . [T]hey negotiated directly with the defendants who they accused of violating the law. . . . Defendants were almost three times more likely to enter a plea of guilty or no contest when confronted by a police-officer-prosecutor . . . .”). See also State ex rel McLeod v. Seaborn, 244 S.E.2d 317, 319 (S.C. 1978) (holding that practice of arresting officers acting as prosecutors in certain misdemeanor cases does not constitute unauthorized practice of law); State v. Messervy, 187 S.E.2d 524, 525 (S.C. 1972) (noting that this practice in the state’s magistrates courts has “been followed under a ruling of the attorney general since 1958”). For evidence of the practice in another jurisdiction, see State v. Aberizk, 345 A.2d 407 (N.H. 1975) (dismissing challenge of misdemeanor defendant to arresting officer serving as both prosecutor and witness). Cf. N.J. Supreme Court Advisory Comm. on Prof’l Ethics, Op. 672 Conflict of Interest: Municipal Police Officer Serving as Municipal Prosecutor, (1993), 1993 WL 137686, at *1 (“[T]he specter of an appearance of impropriety so permeates this situation as to preclude the dual service.”); Ohio Bd. of Comm’rs on Grievances and Discipline, Advisory Op. No. 89-23 (1989), 1989 WL 535028, at *1-2 (advising that an impermissible conflict of interest arises from county prosecutor serving simultaneously as city police officer within same county if “one position is a check on, or subordinate to the other,” if the officer acting as a prosecutor is “aware of the possibility of being called as a witness in the same case,” or if there would otherwise be an “appearance of impropriety”). 25 See GIDEON’S BROKEN PROMISE, supra note 21, at 24-25 (describing observation of Georgia court “mass arraignment of defendants charged with jailable misdemeanors during which the judge informed defendants of their rights and then left the bench. Afterwards, three prosecutors told defendants to line up and follow them one by one into a private room. When the judge reentered the courtroom, each defendant approached with the prosecutor, who informed the judge that the defendant intended to waive counsel and plead guilty to the charges.”) (citations omitted). 26 See ACTUAL DENIAL, supra note 20, at 6 (noting that a county in Michigan charges $240 for all misdemeanor representation, a practice that contributes to 95% of defendants waiving counsel and 50% “pleading guilty at first appearance”); BORUCHOWITZ ET AL., supra note 9, at 19 (describing pressure to waive right to counsel arising from the amount of application fees in New Jersey, South Carolina, and Washington). Formal Opinion 486 ____ _ 7
A prosecutor’s use or endorsement of practices such as these would violate the Model Rules of Professional Conduct, as discussed in Parts III through V below.
III. The Prosecutor’s Responsibilities Under Model Rule 3.8 and Related Rules
A. The Need for Guidance
Model Rules 3.8(a), (b), and (c) provide the foundation for analysis. Yet more than thirty years after their adoption by the American Bar Association there is still relatively little interpretive authority.27 We address each of these sections of Rule 3.8 and its relationship to other provisions of the Rules of Professional Conduct below. At the outset, however, we note that faithful interpretation of the special responsibilities of a prosecutor under the Model Rules demands sensitivity to the higher calling of the role.28 In some respects a prosecutor’s duties exceed the requirements of statutory and constitutional law.29
27 Rule 3.8(d) is discussed in detail in an earlier opinion of this Committee, see ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 454 (2009). However, as the Illinois State Bar Association has summarized, “[t]here is a dearth of legal opinions, not only in Illinois but in other states, on prosecutors seeking to obtain a waiver of an important pretrial right from a pro se defendant.” Ill. State Bar Ass’n, Advisory Op. 14-02, 2014 WL 2434672, at *2 (2014); see id. at *3 (concluding nonetheless that “a prosecutor may convey a plea offer to a pro se defendant prior to a court proceeding, regardless of who initiates the contact” as long as the prosecutor does “not recommend the plea or otherwise force, threaten or coerce the person to waive any important pretrial right,” and the prosecutor “clearly identif[ies] that he or she is not disinterested, clarif[ies] any misconception the person may have about the prosecutor’s role and advise[s] the person about the right to secure counsel.”). See also Pa. Bar Ass’n Comm. on Legal Ethics and Prof’l Responsibility, Formal Op. 2014-500, 2014 WL 10383870, at *7 (2014) (concluding that prosecutor may not condition guilty plea and eligibility for favorable deferred adjudication program on defendant’s waiver of right to discovery because practice violates Rule 3.8(d), constitutes a “coercive practice” in violation of Rules 8.4(a) and (d) and “abdicat[es] his responsibility as a minister of justice by not according the defendant procedural justice”; explaining that “[a] pro se defendant would have little or no understanding of the importance of his procedural right of discovery; and even if he had some understanding, the prosecution threat of facing increased penalties, including incarceration, if he does not accept [the program] and its conditions, negates any voluntary waiver of such procedural rights”); see also Va. State Bar Legal Ethics Advisory Op. 1876, 2015 WL 4977834, at *4-6 (2015) (identifying duty of prosecutor who knows defendant is a noncitizen to include reference to immigration consequences in the plea or request the court to include such consequences in the plea colloquy under the state version of Rule 3.8(b), which prohibits “knowingly tak[ing] advantage of an unrepresented defendant”; prohibiting a prosecutor from offering legal advice under Rule 4.3 to an unrepresented non-citizen defendant). Wisconsin amended its rules for prosecutors in the wake of United States v. Acosta, 111 F.Supp. 2d 1082, 1092-97 (E.D. Wis. 2000), aff’d sub nom. United States v. Olson, 450 F.3d 655, 681-82 (7th Cir. 2006). See WIS. SUP. CT. R. 20:3.8 (creating, inter alia, affirmative duty to inform an unrepresented person of the prosecutor’s “role and interest in the matter” and of the person’s right to counsel; specifying terms upon which prosecutor may negotiate a plea bargain with an unrepresented person); see also Wis. Bar Ass’n, Formal Op. E-09-02, slip op. at 3-4 (2009). 28 See In re Swarts, 30 P.3d 1011, 1031 (Kan. 2001) (“A prosecutor is a servant of the law and a representative of the people of Kansas. When one undertakes the responsibility of prosecution we must view his or her conduct by an enhanced standard.”) (internal quotation marks and citation omitted). 29 See, e.g., ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 454 at 4 (2009) (“Courts as well as commentators have recognized that the ethical obligation [of a prosecutor under Rule 3.8(d)] is more demanding than the constitutional obligation.”); see also ABA/BNA LAWYER’S MANUAL ON PROF’L CONDUCT, Prosecutors 61:601 (ABA/BNA 2019) (“Model Rule 3.8 goes beyond what constitutional guarantees require of prosecutors on the subject of pretrial responsibilities to the unrepresented accused.”). Formal Opinion 486 ____ _ 8
B. Model Rule 3.8(a) and the Duty to Ascertain the Existence of Probable Cause to Charge
Rule 3.8(a) prohibits the prosecution of “a charge that the prosecutor knows is not supported by probable cause.” The provision avoids undue interference with the exercise of prosecutorial discretion.30 As Comment [1] emphasizes, however, the prosecutor has a “specific obligation [] to see that the defendant is accorded procedural justice [and] that guilt is decided upon the basis of sufficient evidence.”31 Read together with the duty of competence under Rule 1.1, the duty of diligence under Rule 1.3, and the prohibition on conduct “prejudicial to the administration of justice” in Rule 8.4(d), it is axiomatic that a prosecutor must actually exercise informed discretion with respect to the selection and prosecution of each charge. Thus, a prosecutor may not negotiate pleas without first making an independent assessment of the relevant facts and law for each charge.32 While it is common for prosecutors to make a careful assessment of evidence compiled incident to a decision to offer a plea, in some jurisdictions the volume of misdemeanor cases and their relatively lower stakes may dispose a prosecutor to rely uncritically on a police report or citation and a criminal background check.33 Unless the prosecutor has reasonable confidence in the thoroughness of the fact finding and the evenhandedness of the judgment of other law enforcement officers who prepare the supporting documents and investigation, reliance on them is likely to be misplaced and the very discretion the Rule is designed to protect may be abused.
If a prosecutor’s workload is too heavy to permit the independent assessment of each charge as required by Rule 3.8(a) and the supervision of other state actors and their work product relevant to each case as required by Rules 5.1(b) and (c) and 5.3(b) and (c), the prosecutor may not be able to provide the competent representation required by Rule 1.1, nor act with the diligence required by Rule 1.3. A supervising prosecutor is responsible, under Rules 5.1(a), 5.3(a), and 8.4(a), for establishing policies, practices, and methods of monitoring prosecutors and non-lawyers that give “reasonable assurance” of compliance with prosecutors’ ethical obligations, including the obligation to be diligent and perform competent work. 34 In the words of Comment [2] to Rule 1.3, a lawyer’s workload “must be controlled so that each matter can be handled competently.”
30 See also MODEL CODE OF PROF’L RESPONSIBILITY DR 7-103(A) (1980). 31 MODEL RULES OF PROF’L CONDUCT R. 3.8 cmt. [1]. 32 See MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. [5] (“Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.”). See also CRIMINAL JUSTICE STANDARDS FOR THE PROSECUTION FUNCTION 3-5.6(c) (AM. BAR ASS’N 2015) (“The prosecutor should not enter into a disposition agreement before having information sufficient to assess the defendant’s actual culpability.”); id. at 3-5.6(g) (“A prosecutor should not agree to a guilty plea if the prosecutor reasonably believes that sufficient admissible evidence to support conviction beyond reasonable doubt would be lacking if the matter went to trial.”). 33 See State v. Young, 863 N.W.2d 249, 253 (Iowa 2015) (“Given the pressures of docket management, there is a risk that the ability of the system to function efficiently and at low cost, rather than the reliability of fact-finding, will shape judicial outcomes. . . . [T]he risk of an inaccurate verdict in uncounseled misdemeanor cases is higher than in most felony prosecutions.”); see also KOHLER-HAUSMANN, supra note 10, at 131 (noting from lengthy New York City court observations and interviews with district attorneys, judges, and public defenders that “arraignment plea offers are based largely on prosecutorial practice and policy, and only minimally on factual or legal investigation”); id. at 125, 133, 138 (same). Evidence that misdemeanor convictions are not always tied to factual guilt can be found in studies going back to the 1950s. See id. at 62. On increases in misdemeanor dockets over the last three decades, see id. at 110, 111 fig. 3.1, 119. 34 On the prosecutor’s managerial and supervisory responsibilities, see ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 467 (2014). See also MODEL RULES OF PROF’L CONDUCT R. 3.8 cmt. [6] (“Like other Formal Opinion 486 ____ _ 9
In Formal Opinion 441, the Committee addressed the ethical obligations of lawyers representing indigent criminal defendants when caseloads interfere with competent and diligent representation.35 The same analysis applies to prosecutors. If workloads interfere with competent and diligent representation, appropriate remedial steps must be taken by the prosecutor and/or the supervising attorney to whom the prosecutor reports by, for example, reassigning cases or limiting other duties.36
C. Model Rule 3.8(b) and the Right to Counsel
Rule 3.8(b) requires the prosecutor to “make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.” This opinion does not address constitutional issues, but our analysis of a prosecutor’s responsibilities under Rule 3.8(b) is aided by identifying circumstances in which the right to counsel applies. In a series of cases beginning with Argersinger v. Hamlin, the Supreme Court has held that the Sixth Amendment right to state subsidized counsel applies to misdemeanors if the punishment includes either actual imprisonment or a suspended sentence that may result in imprisonment.37 Federal courts are divided over the test to determine when the Sixth Amendment right to state subsidized counsel attaches,38 but there is no doubt that it can attach as early as an initial appearance,39 that plea bargaining is a “critical
lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer’s office.”); N.Y. State Bar Ass’n Comm. on Prof’l Ethics Op. No. 2, 2018 WL 3019993, at *2 (discussing prosecutor’s post-conviction duties regarding potential wrongful conviction, “[t]he Rules apply not only to individual prosecutors but also to their offices.”); id. at *2 n.3 (referencing both state analogue to Model Rule 3.8 cmt. [6] and Rule 5.1(a)); Or. State Bar Ass’n Bd. of Governors, Trial Publicity, Formal Op. 2007-179, 2007 WL 7261223, at *8 (2007) (a prosecutor’s level of responsibility under state analogues to Model Rule 5.1 and 5.3 “depends on the level of the prosecutor’s authority over the investigator” with whom she works); id. *8 n.8 (describing circumstances under state analogue to Model Rule 5.1 in which a supervising prosecutor would be responsible for impermissible pre-trial publicity). See also MODEL RULES OF PROF’L CONDUCT R. 8.4(a) & R. 8.4 cmt. [1] (2019) (“Lawyers are subject to discipline when they … knowingly assist or induce another to [violate or attempt to violate the Rules of Professional Conduct] or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf.”). 35 See ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 441 at 1, 7 (2006) (“[L]awyer supervisors must, working closely with the lawyers they supervise, monitor the workload of the supervised lawyers to ensure that the workloads do not exceed a level that may be competently handled by the individual lawyers”; possible ameliorative measures might include, for example, reassigning cases to others, refusing new cases, or reassigning non- representational work to others). 36 Id. at 1, 7. 37 See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (extending right to counsel to misdemeanors and petty offenses involving imprisonment); see also Alabama v. Shelton, 535 U.S. 654, 658 (2002) (“a suspended sentence that may ‘end up in the actual deprivation of a person’s liberty’ may not be imposed unless the defendant was accorded ‘the guiding hand of counsel’ in the prosecution of the crime charged”) (quoting Argersinger, 407 U.S. at 40); Scott v. Illinois, 440 U.S. 367, 373-74 (1979) (clarifying that the Sixth Amendment right to counsel does not apply where state law provides both for fines and imprisonment, and a defendant is sentenced only to a fine). 38 Compare Turner v. United States, 885 F.3d 949, 953 (6th Cir. 2018) (en banc) (holding that Sixth Amendment right to counsel attaches “only at or after the time that adversary judicial proceedings have been initiated” and therefore does not extend to pre-indictment plea negotiations) (quoting United States v. Gouveia, 467 U.S. 180, 187 (1984)), with United States v. Larkin, 978 F.2d 964 (7th Cir. 1992) (holding that although Sixth Amendment right presumptively attaches only at or after the initiation of adversary judicial criminal proceedings …. [a] defendant may rebut this presumption by demonstrating that … the government had crossed the constitutionally significant divide from fact-finder to adversary” at an earlier stage) (internal quotations and citations omitted). 39 See Brewer v. Williams, 430 U.S. 387, 398 (1977). Formal Opinion 486 ____ _ 10
phase” of the representation during which the assistance of counsel is important to ensure fair and accurate outcomes,40 and that the Sixth Amendment protects against interference with the right to counsel whether counsel is subsidized by the state, appointed, or independently retained.41 As importantly, a right to state subsidized counsel in misdemeanor cases may exist in circumstances not covered by the U.S. Constitution.42 An accused person also has a constitutional right to proceed without the assistance of counsel, but the waiver of such assistance must be knowing, voluntary, and intelligent.43
The first draft of the Model Rules addressed the accused’s right to counsel, enjoining a prosecutor to “advise the defendant of the right to counsel and provide assistance in obtaining counsel.”44 The language of the current rule is more precise in several respects. First, rather than simply enjoin the prosecutor to “provide assistance,” it specifies that the lynchpin to assistance is ensuring (i) that the accused is advised of the procedure for obtaining counsel and (ii) that the nature and timing of prosecution does not interfere with this procedure. Second, it replaces the restrictive term of art “defendant” with the more flexible term “accused,” thus clarifying that the assistance obligations of the Rule apply before the filing of an indictment. Third, the shift to passive voice makes the prosecutor responsible for ensuring that the accused is aware of the state’s procedure for obtaining counsel and has adequate time and access to the necessary administrative
40 See Padilla v. Kentucky, 559 U.S. 356, 373 (2010) (“[W]e have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel”); Missouri v. Frye, 566 U.S. 134, 143-44 (2012). The right may attach even before a prosecutor decides formally to proceed with charges. See Rothgery v. Gillespie Cty., Tex., 554 U.S. 191, 207-08 (2008) (rejecting claim that the Sixth Amendment right to counsel attaches only after a prosecutor has formally decided to prosecute; the government’s commitment is “sufficiently concrete” once an accusation is “filed with a judicial officer” by the police incident to arrest and incarceration, triggering an initial appearance). The key for attachment of the Sixth Amendment right is initiation of “adversary judicial proceedings.” Gouveia, 467 U.S. at 187. 41 See Johnson v. Zerbst, 304 U.S. 458, 460, 469 (1938) (holding right to counsel violated where defendant allegedly invoked right in discussion with prosecutor and jailer but was not permitted by either to contact a lawyer and was tried and convicted); Powell v. Alabama, 287 U.S. 45, 58 (1932) (gathering state cases finding violation of right to counsel where accelerated pre-trial and trial process compromised appointed counsel’s preparation of defense); In re Motz, 136 N.E.2d 430, 433 (Ohio Ct. App. 1955) (right to counsel violated where court refused a continuance to permit counsel retained by defendant to prepare, counsel withdrew, court refused to appoint new counsel, and defendant forced to trial pro se). Although we do not address how Rule 3.8 applies to the right to counsel in custodial interrogations, we note that the Fifth Amendment right to counsel can apply to misdemeanor defendants. See Miranda v. Arizona, 384 U.S. 436, 469-70 (1966); cf. infra notes 45 & 47. 42 State law frequently guarantees a right to subsidized counsel in circumstances in which the federal constitution does not. See State v. Young, 863 N.W.2d 249, 272 (Iowa 2015) (citing 2009 study showing that a majority of states provide a right to subsidized counsel broader than the Sixth Amendment “actual imprisonment” standard); DeWolfe v. Richmond, 76 A.3d 1019, 1031 (Md. 2013) (state constitutional right to due process requires right to state subsidized counsel at initial appearance). See also Pretrial Right to Counsel, NATIONAL CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/research/civil-and-criminal-justice/pretrial-right-to-counsel.aspx (offering 50 state survey of state constitutional and statutory provisions establishing right to counsel) (last visited Apr. 30, 2019). 43 See Faretta v. California, 422 U.S. 806, 835 (1975); see also Godinez v. Moran, 509 U.S. 389, 390 (1993) (“[W]hen a defendant seeks to waive his right to counsel, a determination that he is competent to stand trial is not enough; the waiver must also be intelligent and voluntary before it can be accepted.”). “[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances—even though the defendant may not know the specific detailed consequences of invoking it.” United States v. Ruiz, 536 U.S. 622, 629 (2002) (emphasis in original). Whether a waiver is knowing, intelligent and voluntary is a question of law on which we do not opine. 44 MODEL RULES OF PROF’L CONDUCT R. 3.10(b) (Discussion Draft 1980). Formal Opinion 486 ____ _ 11
assistance to invoke it, irrespective of whether another state actor (e.g., the judge, the court clerk, the public defender office) is legally charged with providing counsel, making indigence determinations, or soliciting and recording waivers of the right. Fourth, the modifier “reasonable” in “reasonable efforts” clarifies that a prosecutor is not required to suffer undue delay or otherwise compromise legitimate law enforcement objectives in order to meet the obligations of the Rule. The prosecutor is therefore charged with specific responsibilities to ensure that those who are or may be entitled to counsel are afforded the information and reasonable time necessary to retain a lawyer.45
D. Model Rule 3.8(c) and the Duty Not to Seek Waivers of Important Pretrial Rights
Rule 3.8(c) provides that a prosecutor “shall not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing.” As with Rule 3.8(b), there is no direct analogue to this provision in the 1908 Canons or the 1969 Code. The first draft of the Model Rules provided that a prosecutor “shall not induce an unrepresented defendant to surrender important procedural rights, such as the right to a preliminary hearing.”46 The Rule as adopted is broader for several reasons. First, it prohibits seeking a waiver from an unrepresented “accused” and is therefore not limited to someone who is formally a “defendant.” Second, “inducement” implies efforts to persuade, whereas “seek to obtain” reaches even a bare request. Finally, the replacement of “procedural rights” with “pretrial rights” broadens the scope of the Rule by extending its application to all “important” rights (whether classified as substantive or procedural) and by explicitly targeting the pretrial stage – a particularly delicate phase of prosecution where judges exercise minimal or only intermittent supervision, the leverage of a prosecutor is extraordinary, and the risks and consequences of improper waiver by an unrepresented accused person are correspondingly acute.47 As the Comment makes clear, the Rule does not apply to individuals who have elected to proceed pro se “with the approval of the
45 Although the Rule applies broadly to the right to counsel, this opinion is limited to its application in the context of misdemeanor plea bargaining. For guidance on the right to counsel under the Fifth Amendment in custodial interrogation, see ABA/BNA LAWYER’S MANUAL ON PROF’L CONDUCT, Prosecutors 61:616 (ABA/BNA 2019) (citing CRIMINAL JUSTICE STANDARDS FOR THE PROSECUTION FUNCTION 3-2.7, 3-3.2, 3-3.6 (AM. BAR ASS’N 1992)). 46 MODEL RULES OF PROF’L CONDUCT R. 3.10(c) (Discussion Draft 1980). 47 The example of a preliminary hearing indicates, as the Comment notes, that in jurisdictions where waiver can lead to the loss of a chance to challenge probable cause or use the preliminary hearing to ascertain relevant facts about the prosecution’s case, prosecutors should not seek to deprive defendants of those opportunities. See MODEL RULES OF PROF’L CONDUCT R. 3.8 cmt. [2]. The contemporaneous ABA Standards of Criminal Justice, Prosecution Function, noted these features of the preliminary hearing in some jurisdictions. See CRIMINAL JUSTICE STANDARDS FOR THE PROSECUTION, Standard 3-5.1 (AM. BAR ASS’N 1980). But in its general reference to “important pretrial rights” the Rule as adopted plainly sweeps beyond that illustration. See ABA/BNA LAWYER’S MANUAL ON PROF’L CONDUCT 61:617 (“the phrase is broad enough to cover pretrial rights grounded on federal or state constitutions, statutes, or case law”). As the Comment emphasizes, “prosecutors should not seek to obtain waivers of preliminary hearings or other important pretrial rights from unrepresented accused persons.” MODEL RULES OF PROF’L CONDUCT R. 3.8 cmt. [2] (emphasis added). See also ABA/BNA LAWYER’S MANUAL ON PROF’L CONDUCT 61:617 (ABA/BNA 2019) (“Rule 3.8(c) precludes prosecutors from seeking a waiver of important pretrial rights from an unrepresented accused, even when this conduct maybe permissible as a matter of constitutional law.”). The Rule’s reference to other “important pretrial rights” is particularly relevant to misdemeanor plea bargaining because there is often no requirement of a preliminary hearing or grand jury to provide an external check on prosecutors in misdemeanor cases and there are many important pretrial rights (among them not only the right to counsel but the right to disclosure of exculpatory evidence, the right to inspect evidence, and other discovery rights). This opinion addresses the right to counsel. Formal Opinion 486 ____ _ 12
tribunal,” or to “the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel and silence.”48
IV. Duties Arising from the Accused’s Right to Counsel
As discussed in Parts III.C through III.D above, Model Rules 3.8(b) and (c) provide that the “prosecutor in a criminal case shall:
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing.” 49
Rule 3.8(b) and (c) are of central importance to misdemeanor prosecutions because many people accused of misdemeanors are issued citations and notices to appear rather than arrested and brought in for questioning. Alternatively, they may be questioned in the field by police, arrested, and, particularly for the indigent, held if they cannot make bail. In these circumstances, they functionally become “unrepresented accused” persons either upon receipt of a citation and notice to appear, or as a consequence of an arrest. And yet, this early in the proceedings they may not be aware of their right to state subsidized counsel, the process for exercising it, or the fact that they have the right to retain a lawyer not paid for by the state. As importantly, a prosecutor may control whether the right to state subsidized counsel attaches because the Sixth Amendment right to counsel may hinge on the classification of the underlying offense and the prosecutor’s decision about what kind of plea to offer.50 Under these circumstances, a prosecutor must scrupulously conform to Rules 3.8(b) and (c), as well as Rule 4.3, which prohibits giving legal advice to an unrepresented person whose interests in defending herself may conflict with the prosecutor’s interest in securing a conviction.51 A prosecutor must also take steps to be reasonably sure that the conduct of her subordinates and agents is “‘compatible with the professional obligations of the [prosecutor].’”52
Accordingly, if the charge associated with a plea offer triggers the right to counsel under Argersinger or where the circumstances of the offense, arrest, or initial appearance otherwise indicate that the accused has or may have a right to counsel under state or federal law, the prosecutor may not make a plea offer or seek a waiver of the right to counsel before complying with Rule 3.8(b). The prosecutor must make reasonable efforts to assure that the accused has been advised of the right to counsel and the procedure for obtaining counsel, and has been given a
48 MODEL RULES OF PROF’L CONDUCT R. 3.8 cmt. [2]. 49 MODEL RULES OF PROF’L CONDUCT R. 3.8 (b) & (c). 50 A plea offer of release for time served, for instance, triggers Argersinger because it is a sentence of actual imprisonment. Of course, state law, federal statutes, and the requirements of due process may create a legal right to subsidized counsel even though the Sixth Amendment does not. See note 42 supra. And the unrepresented accused has a core Sixth Amendment right to retain counsel at her own expense unless she elects to proceed pro se on terms approved by the court or by the laws and rules of the jurisdiction. 51 For a prosecutor’s duties under Rule 4.3 when negotiating pleas in misdemeanor cases, see Part V infra. 52 ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 467 at 3 (2014) (quoting Rule 5.3(b)). Formal Opinion 486 ____ _ 13
reasonable opportunity to exercise that right and obtain counsel. If the prosecutor delegates authority to or otherwise relies upon police officers or other state actors to discuss waivers of rights in misdemeanor cases, pursuant to Rules 5.1(b) and (c), 5.3(b) and (c), and 8.4(a), the prosecutor is responsible for ensuring that Rules 3.8 and 4.3 are not violated during those discussions. As noted earlier in this opinion, under Rules 5.1(a) and 5.3(a) a supervising prosecutor is responsible for establishing policies, practices, and methods of monitoring that give “reasonable assurance” of compliance with prosecutors’ ethical obligations.
Moreover, under Rule 3.8(b) and (c), a prosecutor may not pressure, advise, or induce acceptance of a plea or waiver of the right to counsel after an unrepresented accused has been informed of the right to counsel and is deciding whether to invoke or has initiated the process to invoke that right.53 Even asking an unrepresented accused if she wishes to waive the right to counsel or accept a plea is improper if it is clear from the circumstances that the accused does not understand the consequences of acceding to the request. This is so because legal advice may be necessary to clarify any such misunderstanding, and, consistent with Rules 3.8(b), 3.8(c), and as required by Rule 4.3, a prosecutor is precluded from offering legal advice other than to seek counsel.
On the other hand, if the accused has independently elected to proceed pro se on terms approved by the court or by the laws and rules of the jurisdiction, the prosecutor may negotiate a plea, but any negotiations must comply with the Rules discussed in Part V below.
V. Duties When Plea Bargaining with an Unrepresented Accused
Irrespective of whether an unrepresented accused has invoked the right to counsel, Model Rules 4.1, 4.3 and 8.4(c) constrain a prosecutor’s conduct when negotiating a plea bargain with, e.g., (i) persons who are ineligible under state and federal law for state subsidized defense counsel and cannot afford or otherwise cannot secure private counsel, (ii) those who elect to proceed pro se even though they are eligible for subsidized counsel or could retain private counsel, and (iii) those who have invoked the right to counsel but are still in the process of securing counsel or deciding whether to do so.
Rule 4.1 prohibits a lawyer from knowingly making “a false statement of material fact or law to a third person.” The rule “was intended to incorporate the law of misrepresentation by recognizing that the failure to disclose can amount to a misrepresentation in some circumstances ….”54 Comment [1] emphasizes that misrepresentations can “occur by partially true but misleading statements or omissions that are the equivalent of false statements.”55 Rule 4.3 states that “[i]n dealing on behalf of a client with a person who is not represented by counsel” a lawyer “shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if
53 This is so whether the unrepresented accused intends to pursue counsel subsidized by the state or retain counsel at the accused’s expense. 54 CTR. FOR PROF’L RESPONSIBILITY, AM. BAR ASS’N, A LEGISLATIVE HISTORY OF THE DEVELOPMENT OF THE ABA MODEL RULES, 1982-2005, at 522 (2006) [hereinafter LEGISLATIVE HISTORY] (discussion at February 1983 Midyear Meeting). Rules 4.1 and 8.4(c) also apply when the accused has retained counsel, as does Rule 4.2. 55 The comment was amended in 2002 according to the recommendations of the Ethics 2000 Commission. The amendment explicitly expanded emphasis on misrepresentation by omission, substituting the current language for the prior, more vague, reference to misrepresentation by “failure to act.” See id. at 527-28. Formal Opinion 486 ____ _ 14
the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.”56 Finally, Rule 8.4(c) prohibits a lawyer from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.”57
In the context of plea negotiations, these rules circumscribe the terms on which a prosecutor may deal with an unrepresented accused. An unrepresented accused, particularly one who lacks experience with the intricacies of the criminal justice system, is in an acutely vulnerable position.58 The accused faces the vast array of resources at the prosecutor’s disposal as well as the prosecutor’s legal expertise at a moment in which, even in misdemeanor cases, substantial liberty interests and financial security are in jeopardy.59 Moreover, once a prosecutor has committed to pursue a misdemeanor charge in plea negotiations, the interests of the prosecutor and the unrepresented accused are adverse, so the prosecutor must take particular care to avoid giving the impression that she is “disinterested” and to correct any misunderstanding regarding the prosecutor’s role in the matter. From the moment of arrest there is already, within the meaning of Rule 4.3, “a reasonable possibility of … conflict with the interests of” the unrepresented accused. Accordingly, a prosecutor is prohibited by Rule 4.3 from offering legal advice regarding the substance of the plea, the process of its negotiation and entry, or the consequences incident to conviction.60 As discussed below, however, a prosecutor can and sometimes must disclose material information regarding the substance of the plea, the process of its negotiation and entry, and known consequences of a conviction to an unrepresented person.
Comment [2] to Rule 4.3 states that a lawyer is not generally prohibited from “settling a dispute with an unrepresented person,” but a plea bargain is no ordinary arms-length transaction or settlement agreement. The stakes are often significantly higher than in civil matters and the terms must meet specific constitutional standards designed to ensure that the accused’s acceptance is “voluntary, knowing, and intelligent.”61 Thus while a prosecutor may negotiate a plea bargain with a pro se litigant, the prosecutor’s duties under Rules 4.1 and 8.4(c) are heightened in this setting. Assertions regarding the terms of a plea violate these rules if the prosecutor knows they are materially underinclusive. For example, statements regarding the value of a plea offer, particularly those which omit known collateral consequences of accepting a plea or the legal relevance of a plea to enhancement of a sentence in any subsequent case, can constitute prohibited
56 Amendments approved in 2002 on the recommendation of the Ethics 2000 Commission elevated the prohibition on giving advice from the comments to the rule in response to reports that “in negotiations between lawyers and unrepresented parties, the giving of legal advice (often misleading or overreaching) is not uncommon.” Id. at 550. The Commission recognized that “although the line may be difficult to draw, it is important to discourage lawyers from overreaching in their negotiations with unrepresented persons.” Id. at 549-50. On the law of misrepresentation by omission, see RESTATEMENT (SECOND) OF TORTS § 551 (AM. LAW INST. 1977). 57 Comment [1] to Rule 4.1 states that for “dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4.” 58 Comment [2] to Rule 4.3 emphasizes that “[w]hether a lawyer is giving impermissible advice may depend on the experience and the sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur.” 59 See Part IB supra. 60 See Ill. State Bar Ass’n, Advisory Op. No. 02, 2014 WL 2434672, at *3 (“It would be a violation of Rule 4.3 … should the communication [with a person who has elected to proceed pro se] give value to the plea offer or in any way advise the pro se defendant (‘It is a good offer’ or ‘Take the deal.’).”). 61 See Part IIIB supra. Formal Opinion 486 ____ _ 15
misrepresentations under Rule 4.1 or deceptive conduct under Rule 8.4(c).62 Thus, where a prosecutor knows from the charge selected, the accused’s record, or any other information that certain collateral consequences or sentence enhancements apply to a plea on that charge, statements like the following would constitute prohibited misrepresentations:
“Take this plea for time served and you are done, you can go home now.”
“This is a suspended sentence, so as long as you comply with its terms, you avoid jail time with this plea.”
“You only serve three months on this plea, that’s the sentence.”
A prosecutor will rarely know all of the potentially relevant collateral consequences of accepting a plea or the exact nature of any subsequent sentence enhancement. However, if the prosecutor knows the consequences of a plea – either generic consequences or consequences that are particular to the accused – the prosecutor must disclose them during the plea negotiation.63
Finally, a prosecutor’s duties under these rules do not end once a plea has been accepted. If a prosecutor learns during the plea colloquy with the court or other interactions that the unrepresented accused’s acceptance of a plea or waiver of the right to counsel is not in fact voluntary, knowing, and intelligent, or if the plea colloquy conducted by the court is inadequate to ascertain whether the plea or waiver of the right to counsel is in fact voluntary, knowing, and intelligent, the prosecutor is obliged to intervene. The prosecutor cannot, consistent with her role as a minister of justice under Rule 3.8 and the duty to avoid conduct prejudicial to the administration of justice under Rule 8.4(d), knowingly permit an unconstitutional plea to be entered by an unrepresented accused.64
VI. Conclusion
Under Model Rules 1.1, 1.3, 3.8(a), and 8.4(a) and (d), prosecutors have a duty to ensure that charges underlying a plea offer in misdemeanor cases have sufficient evidentiary and legal foundation. Under Model Rules 1.1, 5.1, 5.3, and 8.4(a) prosecutors must take appropriate steps to make reasonably sure that the work of their subordinates and agents is compatible with their professional obligations. Under Model Rule 3.8(b) prosecutors must make reasonable efforts to assure that unrepresented accused persons are informed of the right to counsel and the process for securing counsel, and must avoid conduct that interferes with that process. After an unrepresented accused has been informed of the right to counsel and is deciding whether to invoke that right or is in the process of attempting to secure counsel, a prosecutor may not, under Model Rules 3.8(b)
62 Furthermore, in the context of plea negotiations, violation of either rule is conduct prejudicial to the administration of justice under Rule 8.4(d). 63 Given the delicacy of balancing the need to disclose material information to avoid either misrepresentation or deception, on the one hand, and the prohibition on legal advice, on the other, the best practice is to carefully record and preserve plea negotiations with an unrepresented accused. See CRIMINAL JUSTICE STANDARDS FOR THE PROSECUTION FUNCTION 3-5.6(b) (AM. BAR ASS’N 2015) (encouraging record keeping where defendant waives right to counsel and proceeds pro se). Additional guidance is provided in the NAT’L PROSECUTION STANDARDS §§ 2-7.2, 2-7.4 and 2-7.5 (3d ed. 2009). 64 See also ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 454 (2009). Formal Opinion 486 ____ _ 16
and (c), pressure, advise, or induce acceptance of a plea or waiver of the right to counsel. Finally, irrespective of whether an unrepresented accused has invoked the right to counsel, a prosecutor must, under Model Rules 4.1, 4.3 and 8.4(c) and (d), avoid offering, negotiating, and entering pleas on terms that knowingly misrepresent the consequences of acceptance, or otherwise improperly pressure, advise, or induce acceptance on the part of the unrepresented accused.
AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
321 N. Clark Street, Chicago, Illinois 60654-4714 Telephone (312) 988-5328 CHAIR: Barbara S. Gillers, New York, NY ■ John M. Barkett, Miami, FL ■ Robert Hirshon, Ann Arbor, MI ■ Thomas B. Mason, Washington, DC ■ Michael H. Rubin, Baton Rouge, LA ■ Douglas R. Richmond, Chicago, IL ■ Lynda Shely, Scottsdale, AZ ■ Norman W. Spaulding, Stanford, CA ■ Elizabeth Clark Tarbert, Tallahassee, FL ■ Lisa D. Taylor, Parsippany, NJ
CENTER FOR PROFESSIONAL RESPONSIBILITY
©2019 by the American Bar Association. All rights reserved.
Collateral Consequences: Impact of Convictions on Immigrants and Immigration Status
Edgar Michael Pinilla
2/24/2020
Collateral Consequences: Impact of Convictions on Immigrants and Immigration Status E. Michael Pinilla Pinilla Law Firm, LLC 7 Surrey Court, Suite A, Columbia, SC 29212 (803)728-0045 [email protected]
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Padilla v Kentucky 559 U.S. 356 (2010)
Must advise of possible deportation consequences.
Failure to advise or misadvice may constitute ineffective assistance of counsel under Strickland v Washington.
When risk is clear must tell client deportation is presumptively mandatory.
When risk is less clear must tell client “that pending criminal charges may carry a risk of adverse immigration consequences”
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Deportable
An immigrant is deportable under 8 USC 1227 (a) when s/he is present in the US with “admission”. Admission means the person lawfully entered the US. 8 USC 1101(a)(13)(A).
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Inadmissible
A person is inadmissible under 8 USC 1182(a) when the person is not present in the US with prior admission.
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Immigration Consequences
Impact those with and without legal status.
The crime charged does not have to be a felony.
There can be consequences even if the person does not serve time.
There can be consequences even if the sentence is suspended.
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Convictions that trigger deportability
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Convictions that trigger deportability
Remember, deportable aliens entered the country legally, usually have some status. DEPORTABILITY AFFECTS LAWFUL PERMANENT RESIDENTS (GREEN CARD HOLDERS)
INA 237 (codified in 8. USC 1227)
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Convictions that trigger deportability
Crimes Involving Moral Turpitude (CIMT)-
1. is convicted of a “crime involving moral turpitude” committed within 5 years . . . after the date of “admission.”
2. the conviction must be for one for which a sentence of one year or longer may be imposed.
WHAT IS A CIMT DEPENDS ON THE LANGUAGE OF THE CRIMINA STATUTE
Examples: murder, rape, burglary, kidnapping, fraud, child abuse, felonious assault, theft offenses, robbery.
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Convictions that trigger deportability
Multiple Criminal Convictions
An Alien is deportable at any time after admission if he is convicted of two or more “crimes involving moral turpitude.”
Not arising out of a single scheme of criminal misconduct
Does NOT matter if you were ever given jail time
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Convictions that trigger deportability
Any alien who is convicted of an aggravated felony at any time after admission is deportable Murder, rape, sexual abuse of a minor. Illicit trafficking in controlled substances including drugs. Illicit trafficking in firearms, destructive devices or explosive materials. Laundering of monetary instruments. Explosive materials and firearms offense. Crimes of violence. Theft or burglary. Child pornography. Racketeering and gabling offenses.
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Convictions that trigger deportabilty
FAILURE TO REGISTER AS A SEX OFFENDER
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Convictions that trigger deportability
8 USC 1227(a)(2)(B)
Any alien who at any time after admission has been convicted of a violation (or conspiracy or attempt to violate) any law or regulation of the State, the USA, . . . Relating to the controlled, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable
Drug paraphernalia can fall under this.
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Convictions that trigger deportability
Certain firearm offenses – Any alien who at any time after admission is convicted under any law for:
Purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying or
Of attempting or conspiring (the same as above)any weapon, part, or accessory which is a firearm or destructive device in violation of any law
Is deportable
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Convictions that trigger deportability
Crimes of domestic violence, stalking, child abuse, child abandonment or neglect.
8 USC 1227(a)(2)(E)(i)
Any alien at any time after admission is convicted of a crime of domestic violence, stalking, child abuse, child abandonment or neglect id deportable.
The term “domestic violence” means any crime of violence (as defined in Section 16 of Title 18)
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Crime of Violence defined
The term "crime of violence" means-
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
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Convictions that trigger deportability
Violating a protective order- issued by a court and person engaged in conduct that violated a part of the order that involves credible threats or harassment or injury. 8 USC 1227(a)(2)(E)(ii).
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Things that make you INADMISSIBLE
Any alien convicted of, or who admits having committed, or who admitts committing acts which constitute the essential elements of:
A “crime involving moral turpitude” or an attempt or conspiracy to commit such a crime or:
a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance is inadmissible
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Convictions that trigger inadmissibility
8 USC 1182(a)(2)
CIMT – PETTY OFFENSE EXCEPTION
Does not apply if committed CIMT
Only once, EVER;
Must not have been sentenced to a term of imprisonment of more than (6) months regardless of actual time spent (suspended sentences) AND
sentence must have a maximum possible sentence of 1 year .
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Convictions that trigger inadmissibility
Multiple criminal convictions- two or more offenses for which the aggregate sentence of confinement were 5 years or more is inadmissible.
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Conduct related removal grounds and inadmissibility
Controlled substances Admits to committing this or to essential elements. Anyone who is known or there is reason to believe the person has been an illicit trafficker in drugs. Anyone who is known or there is RTB the person has been a knowing aider, abettor, assister or conspirator with others in illicit trafficking. Anyone who is known or there is RTB
the person is the spouse, son or daughter of an immigrant AND that person is
who is an illicit trafficker or aider, etc. AND
the spouse, son or daughter has obtained within the previous five years any financial or other benefit from said activity AND
the innocent immigrant should have known or reasonably knew about the activity
Exception if received benefit as a minor. Drug abuser or addict.
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Conduct related removal grounds and inadmissibility
Money laundering
Any immigrant who the authorities know or have reason to believe has engaged in, is engaging in, or seeks to enter the US to engage in said offense. Same for an immigrant who is aiding, abetting, etc. 8 USC 1182(a)(2)(I)(ii)
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Categories of Crimes that lead to immigration consequences
Aggravated Felonies- does not actually have to be “aggravated” nor a felony.
Severe penalties
Mandatory detention.
Almost certain deportation.
Ineligible for most forms of relief.
Enter without permission after removed then face time in federal prison.
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Categories of Crimes that lead to immigration consequences
Controlled Substances
Can include simple possession.
Can include distribution and trafficking.
Can include possession of drug paraphernalia.
Renders many people ineligible for immigration relief.
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Categories of Crimes that lead to immigration consequences
Crimes involving moral turpitude (CIMT)
Very broad.
Vague.
Usually theft, fraud, dishonesty.
Intent cause bodily harm.
Recklessness that causes serious bodily harm.
Impact depends on immigration status and actual and potential sentence.
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Categories of Crimes that lead to immigration consequences
Misc.
CDV
Firearms
Crimes against children
Impact depends on status
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Avoid
A conviction (if possible).
Aggravated felonies.
Controlled substances violation.
CDV and stalking.
Violations of protective orders.
Crimes against children.
CIMTs.
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Do
Determine client’s immigration status or lack thereof. Can make difference in consequences. Consult experienced immigration attorney. Look into PTI, but make sure will not impact immigration status. Think carefully about plea agreement. Your own research. Remember that you should try to keep any record of conviction “clean”.
Avoid facts that could worsen the situation.
ROC for immigration includes:
Statutory definition of offense, charging document, written plea agreement, transcript of plea, and any factual finding by the court.
May want to waive the reading of the facts. Advise client carefully about possible ramifications of the plea or PTI.
This includes considering what status they do or do not have and the impact.
For example: mandatory detention, no immigration relief, trouble adjusting to citizenship status…
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INA 236(C) – AVOID IF POSSIBLE
INA 236(c) is mandatory detention of any alien who:
1. Inadmissible by reason of having committed any offense covered in section 212(a)(2);
2. Deportable by reason of having committed any offense covered in section 237(a)(2)(A)ii, A(iii), (B), (C) or (D);
3. Deportable under section 237(a)(2)(A)(i) on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least one year, or;
4. Inadmissible under section 212(a)(3)(B) or deportable under section 237 (a)(4)(B)
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Mandatory detention
8 USC 1182(a)(2) crimes.
Multiple criminal convictions.
AF.
Controlled substances.
Firearms.
8 USC 1227 (a)(2)(A)(ii),(iii), (B)(C)(D).
CIMTs.
Terrorist and related activities.
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Green card holders and deportability
Best to avoid anything that is:
CIMT- some room here if never had one before or if potential punishment is less than one year in prison.
Aggravated felony, controlled substance offense.
Single offense of simple possession – that is 30g or less of marijuana does not trigger deportability, but note SC law on this where only 28g or less is simple possession.
Firearm convictions.
CDV, stalking, violation of protection order or crime against children.
Making client appear to be a “drug abuser or addict”
Other misc. grounds.
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Green card holders and inadmissibility
These will make a LPR with a conviction unable to return to US from trip aboard. Also, subject to removal. Two or more offenses of any type for which the aggregate sentences of confinement imposed were 5 years or more. 8 USC 1182 Anything related to prostitution. Anything that makes client be considered a “drug abuser of addict”. CIMT – exception is petty offense.
D has not committed prior CIMT AND
potential penalty does not exceed one year AND
D was not actually sentenced to more than 6 months. Controlled substance conviction. NO exception for simple possession. Other misc. grounds.
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Refugees and aslyees
To avoid grounds of inadmissibility, thus allowing client to adjust to LPR status – one must avoid conviction of:
Controlled substance offense – NO exception for simple marijuana.
CIMT – exception petty offense exception.
Two or more offenses of any type, if aggregate sentences to confinement imposed amounted to five years or more.
Related to prostitution.
Anything can make client appear to be a “drug abuser or addict”.
Aggravated felonies or things that are “violent or dangerous”.
Other misc. grounds.
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Temporary or no status, but might be eligible for permanent status
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May be eligible for permanent status
Avoid convictions that trigger inadmissibility: Controlled substances – no exception for simple possession of marijuana. CIMT – except petty offense exception. Two or more offenses of any type where the aggregate sentence to confinement imposed amounted to five years or more. Related to prostitution. “violent or dangerous crime” Aggravated felony . “particularly serious” Things that may result in client being considered “drug abuser or addict”. Other misc. grounds.
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No status and probably not eligible for status
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Probably not eligible
Try preserve chance get status in future even if odds are remote. Avoid convictions for:
Controlled substance violations- sometimes a waiver for simple possession marijuana less than 30 grams. Note that in SC, though, has to be less than 28g to be simple possession.
Aggravated felonies.
That result in mandatory detention by ICE- anything triggering inadmissibility, Aggravated felonies, controlled substances, firearms, CIMT.
Things prevent finding good moral character- controlled substances, CIMT, aggregate sentence of imprisonment of 5 years or more, two or more gambling offenses, confinement of 180 days or more.
Three or more misdemeanors involving drugs or crimes against a person.
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PTI and other diversion programs
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Diversion programs
For some grounds of inadmissibility based on criminal conduct an actual conviction is not required.
Is there “reason to believe” that the person
Is or has aided a drug trafficker.
Is or has engaged in trafficking of persons.
Admitted to CIMT.
Admitted to controlled substance offense.
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Juvenile Delinquency
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Adjudications
Juvenile dispositions are adjudications, so not considered convictions. However, that does not mean there are no consequences to delinquency offenses.
Many forms of immigration relief are discretionary – this mean negative factors will be considered.
Sometimes waivers i.e. a way of asking for forgiveness from immigration for certain offenses is an option – sometimes not.
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Collateral Consequences: Impact of Convictions on Professional and Occupational Licenses
Darra Coleman
2/27/2020
The Impact of Convictions on Professional and Occupational Licenses
Darra James Coleman, J.D. S.C. Department of Labor, Licensing and Regulation Chief Advice Counsel
Making South Carolina a Safe Place to Work and Live
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What is LLR?
The South Carolina Department of Labor, Licensing and Regulation is: • A member of the Governor’s Executive Cabinet; • An “umbrella” agency created by the Legislature in 1996; • Its purpose is to “protect the public through the regulation of professional and occupational licensees and the administration of boards charged with the regulation of professional and occupational practitioners.”
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LLR’s Departments and Divisions SC OSHA Wages & Child Labor Labor Mediation Office of Immigration Compliance State Fire Elevators and Amusement Rides Office of Investigations and Enforcement Office of Communications Office of Advice Counsel Office of Disciplinary Counsel Professional and Occupational Licensing Boards
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Who’s Under LLR’s POL Umbrella? Board of Accountancy Advisory Panel for Massage and Body Work Board of Architectural Examiners Board of Medical Examiners Athletic Commission Board of Nursing Auctioneers Commission Board of Occupational Therapy Board of Barber Examiners Board of Examiners in Opticianry Boiler Safety Program Board of Examiners in Optometry Building Codes Council Perpetual Care Cemetery Board Board of Chiropractic Examiners Board of Pharmacy Contractors' Licensing Board Board of Physical Therapy Examiners Board of Cosmetology Pilotage Commission Board of Dentistry Board of Podiatry Examiners Panel for Dietetics Board of Examiners for Licensure of Professional Counselors and Marital and Family Therapists Engineers and Land Surveyors Board Board of Examiners in Psychology Environmental Certification Board Board of Pyrotechnic Safety Board of Registration for Foresters Real Estate Appraisers Board Board of Funeral Service Real Estate Commission Board of Registration for Geologists Residential Builders Commission Board of Registration for Landscape Architects Board of Social Work Examiners Liquid Petroleum Gas Board Soil Classifiers Advisory Council Long Term Health Care Administrators Board Board of Examiners in Speech‐Language Pathology and Audiology Manufactured Housing Board Board of Veterinary Medical Examiners 4
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The Effect of Prior Criminal Convictions (The Default Setting in “The Engine”) SECTION 40‐1‐140. Effect of prior criminal convictions. A person may not be refused an authorization to practice, pursue, or engage in a regulated profession or occupation solely because of a prior criminal conviction unless the criminal conviction directly relates to the profession or occupation for which the authorization to practice is sought. However, a board may refuse an authorization to practice if, based upon all information available, including the applicant's record of prior convictions, it finds that the applicant is unfit or unsuited to engage in the profession or occupation.
HISTORY: 1996 Act No. 453, Section 2.
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Grounds for Discipline or Denial/Restriction? The Engine provides in SECTION 40‐1‐110: In addition to other grounds contained in this article and the respective board's chapter: (1) A board may cancel, fine, suspend, revoke, or restrict the authorization to practice of an individual who: (a) used a false, fraudulent, or forged statement or document or committed a fraudulent, deceitful, or dishonest act or omitted a material fact in obtaining licensure under this article; (b) has had a license to practice a regulated profession or occupation in another state or jurisdiction canceled, revoked, or suspended or who has otherwise been disciplined; (c) has intentionally or knowingly, directly or indirectly, violated or has aided or abetted in the violation or conspiracy to violate this article or a regulation promulgated under this article; (d) has intentionally used a fraudulent statement in a document connected with the practice of the individual's profession or occupation; (e) has obtained fees or assisted in obtaining fees under fraudulent circumstances; (f) has committed a dishonorable, unethical, or unprofessional act that is likely to deceive, defraud, or harm the public; (g) lacks the professional or ethical competence to practice the profession or occupation; (h) has been convicted of or has pled guilty to or nolo contendere to a felony or a crime involving drugs or moral turpitude; (i) has practiced the profession or occupation while under the influence of alcohol or drugs or uses alcohol or drugs to such a degree as to render him unfit to practice his profession or occupation; (j) has sustained a physical or mental disability which renders further practice dangerous to the public; (k) violates a provision of this article or of a regulation promulgated under this article; (l) violates the code of professional ethics adopted by the applicable licensing board for the regulated profession or occupation or adopted by the department with the advice of the advisory panel for the professions and occupations it directly regulates.
Each incident is considered a separate violation.
HISTORY: 1996 Act No. 453, Section 2.
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Crimes of Moral Turpitude
Op. S.C. Att’y Gen., (November 7, 2018), concluding that ALL degrees of the crime of domestic violence can be crimes “involving moral turpitude,” both as incidents charged and as convictions.
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Crimes of Moral Turpitude
• In South Carolina, a crime which involves an element of fraud is generally a crime of moral turpitude. See In the Matter of Parker, 313 S.C. 47, 437 S.E.2d 37 (1993). • That a crime involving an ingredient of fraud occurred in a context wholly outside of the practice of the profession does not prevent that crime from being considered a crime of moral turpitude for purposes of professional discipline. In re Sipes, 297 S.C. 531, 377 S.E.2d 574 (1989).
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Crimes Involving Moral Turpitude • Arson • Embezzlement • ABHAN • Extortion • ABWIK • Failure to remit EE withholding taxes • Assault w/Intent to Commit Sexual Conduct • False pretenses, conspiracy to obtain money or property under • Auto Theft • False representations • Accessory to Bank Robbery/Robbery • False statement, making/concealing material facts on • Breach of Trust w/ Fraudulent Intent applications for certificate of title or registration of motor • Bribe (Accepting or Bribing) vehicle • False statement, making to federally insured financial • Burning Lands of Another (Willful) institution • Burning Untenanted or Unoccupied Building • False statement, making to obtain unemployment benefits • Cocaine/Marijuana Trafficking/Possession • False statement, making/willfully overvaluing security to • Conspiracy to commit offense involving moral turpitude influence action by Commodity Credit Corp. • Contempt of court for jury tampering • False statement on tax forms • Controlled Substance (PWITD, Manufacturing, Distributing, • Forgery Dispensing) • Fraud • Crack Cocaine, Attempted possession • Fraudulent Check • Criminal Sexual Conduct with a Minor • Furnishing false property tax receipt
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Crimes Involving Moral Turpitude
• Heroin, possession • Motor vehicle, breaking into with intent to steal • Hit and run driving • Murder • Housebreaking • Murder, solicitation to commit • Illegal drugs, sale and distribution of • Obstruction of justice by influencing grand jury • Jury tampering • Peeping tom • • Larceny/grand/conversion of property Rape • Receiving stolen goods • Lewd act upon a minor • Resisting arrest • Mail, using to facilitate a felony • Robbery (or Attempted Robbery) • Malicious injury to personal property • Shoplifting • Manufacturing illegal whiskey • Using official position for personal financial gain • Marijuana, conspiracy to possess w/ intent to • distribute a Schedule I/ criminal conspiracy to Vote buying, conspiracy import/ PWID • Misapplication of mortgage proceeds
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Different Strokes for Different Folks? In the Matter of Kerry L. Pickett (Board of Registration for Professional Engineers and Surveyors) Mr. Pickett was first licensed on January 27, 2000. His license expired June 30, 2010 and was not renewed. He applied for reinstatement on or about June 25, 2012. Applicant stated on his application that his license has not been denied, suspended or revoked in any jurisdiction, but responded affirmatively that he had been convicted of a crime other than a minor traffic violation. On June 22, 2009, Mr. Pickett pled guilty to identity fraud, a second degree felony, in the State of Ohio, arising from obtaining a loan from a bank based on false pretenses. The loan involved his estranged spouse. He self‐reported his conviction to the regulatory board in Ohio on his renewal application, but not within 60 days of the conviction as required by the Ohio regulations.
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Matter of Kerry Pickett (Continued)
• By a final order dated February 16, 2011, the Ohio Board of Registration for Professional Engineers and Surveyors suspended Mr. Pickett’s license, stayed upon two years’ probation, and fined him $500, such stayed suspension and probation to become effective upon his release from prison. • §40‐22‐220 sets forth eligibility requirements for licensure as an engineer, including “good character and reputation.” • §40‐22‐20(16) defines “good character” as a person of good moral character and who has not been convicted of a violent crime or “a crime of moral turpitude.” • Regulation 49‐105 governs reinstatement of lapsed engineer licenses and allows reinstatement barring engagement in “any other irregularities” during the period the license was lapsed. • The Board considered Mr. Pickett’s fraud in misrepresenting his mistress as his wife a crime of moral turpitude and his failure to timely report the conviction to Ohio within 60 days “other irregularities” sufficient to deny his application for renewal. • Application for reinstatement denied by Order dated December 10, 2013.
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Different Strokes for Different Folks? In the Matter of Ernest M. Smith (Before the South Carolina Board of Funeral Service)
Mr. Smith was licensed as funeral home director at all relevant times. • Mr. Smith admitted that he pled guilty to one felony of willfully making and filing a false federal tax return in the U.S. District Court on January 21, 2010, but did not disclose the arrest and conviction in response to a question on the online renewal application on June 15, 2010. Mr. Smith admitted that this conduct constituted professional misconduct. • The Board suspended his license until such time as a pardon could be obtained for his criminal conviction, at which time he could apply for reinstatement, by order dated May 6, 2013. • On appeal, the Administrative Law Court found the Board acted within its authority to suspend Mr. Smith, but found the sanction arbitrary and capricious. The ALC modified the sanction to a suspension of one year from the date of its January 30, 2014 order and imposed a fine of $500.00.
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Questions to Ask
• Is your client a regulated professional? • Does the relevant Practice Act have a specific applicable provision? • Is there a specific Regulation that will impact my client? • If not, how does the Engine apply? • Is the offense one involving a felony, drugs or a crime of moral turpitude? • Is there case law or an AG’s Opinion expressly establishing whether the offense is a crime of moral turpitude?
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THANK YOU!
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Collateral Consequences: Guns and Private Investigator Licenses
Adam Whitsett
2/20/2020
Collateral Consequences: Guns, SLED Licenses, Law Enforcement, and CWPs
Adam L. Whitsett SLED General Counsel
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Federal Firearms Prohibitions
18 U.S.C.A. § 922(g)(1) prohibits any person from possessing, shipping, or transporting firearms or ammunition who: Has been convicted of a crime punishable by imprisonment for a term exceeding one year ▫ all state felonies; ▫ all state misdemeanors carrying more than 2years(18 U.S.C.A. § 921(20)(B))
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Federal Firearms Prohibitions 18 U.S.C.A. § 922(g)(3) prohibits any person who “is an unlawful user of or addicted to any controlled substance” for one year from the date of the “event”. Examples of disqualifying “events”: ▫ A conviction of use or possession ▫ An admission of use or possession ▫ Evidence of use or possession (positive test) ▫ Multiple controlled substance arrests within past five years, with most recent within past year
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Federal Firearms Prohibitions
18 U.S.C.A. § 922(g)(9) prohibits any person who “has been convicted in any court of a qualifying misdemeanor crime of domestic violence” ▫ Conviction must meet the federal definition consisting of required elements and required relationship status, which are set forth in 18 U.S.C.A. § 921(33).
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State Law Firearms Prohibitions • Violent Felony Conviction - § 16-23-500 • Qualifying Domestic Violence Conviction - §16-25-30 • Qualifying Order of Protection – § 16-25-30(A)(4) • Mental Health Adjudication or Commitment - § 23-31-1040 • Unlawful Alien - § 16-23-530
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Domestic Violence
• DVHAN - § 16-25-65 – Automatic prohibition •DV 1st Degree - § 16-25-20(B) – Automatic prohibition •DV 2nd Degree (with MBI) - § 16-25-20(C) – Automatic prohibition •DV 2nd Degree (without MBI) - § 16-25-20(C) – Prohibition applies only if the judge orders the person is prohibited •DV 3rd Degree - § 16-25-20(D) – Prohibition applies only if the judge orders the person is prohibited
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State Law Handgun Prohibition
S.C. Code Ann. § 16-23-30 • Crime of Violence Conviction • Fugitive from Justice • Habitual Drunkard or Drug Addict • Adjudicated Mentally Incompetent • Member of a Subversive Organization • Adjudged Unfit to Posses a Firearm
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Other Potentially Prohibiting Orders
• All types of restraining orders ▫ If the judge orders that the person is prohibited from possessing a firearm • Conditions of bond ▫ Ifthejudgelistsasaconditionofbondthatthe person is prohibited from possessing a firearm • Any order in which a judge makes a specific finding that a person is prohibited from possessing a firearm
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Private Investigation Licenses • Private Investigation Company – § 40-18-70(E)(4),(5) • Private Investigator Registration Certificate – § 40-18-80(B)(3)(d),(e) ▫ has not been convicted of a felony or crime involving moral turpitude; ▫ is of good moral character;
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Security Licenses • Contract Security Business License – § 40-18-50(D)(4),(5) • Proprietary Security Business License – § 40-18-60(B)(4),(5) • Security Guard Registration Certificate – § 40-18-80(A)(4)(d),(e) ▫ has not been convicted of a felony or crime involving moral turpitude; ▫ is of good moral character;
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Misconduct For Law Enforcement • S.C. Code Ann. § 23-23-150(a) a conviction, plea of guilty, plea of no contest or admission of guilt to a felony, a crime punishable by a sentence of more than one year, regardless of the sentence actually imposed, or a crime of moral turpitude
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Concealed Weapon Permit Revocation S.C. Code Ann. § 23-31-215(J) A permit is valid statewide unless revoked because the person has: • (1) become a person prohibited under state law from possessing a weapon; • (4) been charged with an offense that, upon conviction, would prohibit the person from possessing a firearm. However, if the person subsequently is found not guilty of the offense, then his permit must be reinstated at no charge.
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Contact Information Adam L. Whitsett SLED General Counsel [email protected] Office (803) 896-0647 Cell (803) 206-4636
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Collateral Consequences: Other Impacts of Convictions, including Employment, Education, Voting, Housing, and Public Assistance
Jack Cohoon
Collateral Consequences— Impacts on Employment, Education, Voting, Housing and Public Assistance
Jack E. Cohoon Special Counsel, Burnette Shutt & McDaniel, P.A.
Note: These materials rely heavily upon South Carolina Appleseed’s 2013 Report, Collateral Consequences of Criminal Convictions—Dismantling Barriers to Opportunity, available at http://www.scjustice.org/wp- content/uploads/2013/05/collateral_consequences_guide_april-2013-edits.pdf, with information updated to reflect changes to the law.
1. The Breadth of Criminal Records—Who is Affected?
a. 1,731,700 individuals in South Carolina have a criminal record. Bureau of Just. Stat., Survey of State Criminal History Information Systems, 2016, U.S. DEP’T OF JUST. (Feb. 2018), at Table 1, available at https://www.ncjrs.gov/pdffiles1/bjs/grants/251516.pdf.
b. 4,625,364 individuals estimated to live in SC in 2016. U.S. Census, American Factfinder, available at https://factfinder.census.gov/bkmk/cf/1.0/en/state/South Carolina/ALL
c. 37.44% of population of SC has a criminal record.
2. Employment
a. Prevalence of pre-employment background checks.
i. 95% - Percentage of employers that use one or more types of employment background screening, according to a 2018 report sponsored by the National Association of Background Screeners.
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ii. Source: Conducting Background Investigations and Reference Checks, SHRM, https://www.shrm.org/resourcesandtools/tools-and- samples/toolkits/pages/conductingbackgroundinvestigations.aspx (accessed Feb. 24, 2020). b. Title VII, Civil Rights Act of 1964
i. Prohibits employment discrimination based on race, color, religion, sex and national origin.
ii. Disparate Impact
1. “Employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity…” “Proof of discriminatory motive…is not required under a disparate-impact theory.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977).
2. “Practices that are fair in form, but discriminatory in operation. The touchstone is business necessity.” “If an employment practice which operates to exclude [African Americans] cannot be shown to be related to job performance, the practice is prohibited.” Griggs v. Duke Power Co., 401 U.S. 424, 431-32 (1971).
3. EEOC’s Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII (Apr. 25, 2012), https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
iii. Arrests (from EEOC Guidance)
1. In 2010—
a. African Americans made up 14% of the U.S. population.
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b. African Americans made up 28.4% of arrests.
2. In 2008, Hispanics were arrested for federal drug charges at a rate of 3x their proportion of the general population.
3. Sources: Uniform Crime Reporting Program, FBI; U.S. Census Bureau, The Black Population: 2010; Nancy E. Walker et al., Nat’l Council of La Raza, Lost Opportunities: The Reality of Latinos in the U.S. Criminal Justice System 17-18 (2004). iv. Drug Offenses (from EEOC Guidance)
1. African Americans and Hispanics are more likely than Whites to be arrested, convicted, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites.
2. In 2010 rates of illicit drug use were 10.7% for African Americans, 9.1% for Whites, and 8.1% for Hispanics.
3. Whites use marijuana at higher rates than African Americans and Hispanics, however, the marijuana arrest rate of Hispanics s 3x the arrest rate of Whites, and the marijuana arrest rate of African Americans is 5x the arrest rate of Whites.
4. Sources: Human Rights Watch, Decades of Disparity: Drug Arrests and Race in the United States 1 (2009), http://www.hrw.org/sites/default/files/reports/us0309web_1.p df; Substance Abuse & Mental Health Servs. Admin., U.S. Dep't of Health & Human Servs., Results from the 2010 National Survey on Drug Use and Health: Summary of National Findings 21 (2011), http://oas.samhsa.gov/NSDUH/2k10NSDUH/2k10Results.pd f; Harry Levine & Deborah Small, N.Y. Civil Liberties Union, Marijuana Arrest Crusade: Racial Bias and Police Policy In New York City, 1997""2007, at 13—16 (2008), www.nyclu.org/files/MARIJUANA-ARREST- CRUSADE_Final.pdf.
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v. Disparate Impact of Criminal Background Check
1. EEOC: “National data, such as that cited above, supports a finding that criminal record exclusions have a disparate impact based on race and national origin.”
2. In a lawsuit, statistical evidence is required.
3. In the EEOC, disparate impact is presumed and need not be proved.
vi. Arrests (not leading to conviction)
1. Does not establish that criminal conduct has occurred.
2. Not proof of criminal conduct.
3. Many do not result in criminal charges, or the charges are dismissed.
4. Presumed innocent unless proven guilty.
5. An employer is supposed to evaluate the likelihood that the person engaged in the conduct or which he or she was arrested. vii. Business Necessity
1. After disparate impact is established, employer has the burden to show business necessity.
2. The Green Factors (Green v. Mo. Pac. R.R., 523 F.2d 1290, 1294-95 (8th Cir. 1975)(concluding that the defendant's criminal record exclusion policy had a disparate impact based on race by evaluating local population statistics and applicant data), appeal after remand, 549 F.2d 1158, 1160 (8th Cir. 1977).
a. Nature and gravity of the offense or conduct;
b. Time that has passed since the offense or conduct and/or completion of the sentence; and
c. The nature of the job held or sought.
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viii. Targeted Exclusions/Matrices
1. Employer policy or practice of excluding individuals from particular positions for specified criminal conduct within a defined time period.
2. Should take into account fact-based evidence, legal requirements, studies.
3. Employers should distinguish between different jobs and different offenses and provide time limits for disqualifications.
ix. Individualized Assessment
1. Strongly recommended by the EEOC.
2. Process: a. Employer notifies applicant of possible rejection; b. Applicant has opportunity to respond; c. Employer considers what applicant said.
x. What this all means
1. Across-the-board exclusions (“no criminal records”) usually violate Title VII.
2. Firing current employees who are performing well but have criminal records usually violates Title VII.
3. On-line applications that kick out people with a record probably violate Title VII.
4. Relying solely on records of arrests not leading to convictions probably violates Title VII.
5. Not considering the amount of time or seriousness of the offense may violate Title VII.
xi. Status of EEOC Guidance is in flux
1. The Fifth Circuit found that the guidance was a substantive rule subject to the Administrative Procedure Act's notice- and-comment requirement and that EEOC thus overstepped
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its statutory authority in issuing it. The text of Title VII and precedent confirm that EEOC lacks authority to promulgate substantive rules implementing Title VII. Texas v. Equal Employment Opportunity Comm'n, 933 F.3d 433, 451 (5th Cir. 2019) c. Fair Credit Reporting Act (15 USC § 1681 et seq)
i. Overview
1. Use of criminal background reports in employment is governed by the FCRA.
2. Background checking companies are Consumer Reporting Agencies (CRAs).
3. Requires clear, written notice that report may be sought, and written authorization from applicant.
4. Report may not include arrests (that did not lead to conviction) from over 7 years previous.
5. If adverse action is to be taken, applicant must first be provided a copy of the report.
6. Applicant may dispute items on his or her record by sending dispute in writing to the CRA.
7. CRA must then investigate to verify the accuracy of the item.
ii. Employer Obligations under the FCRA (Section 604(b) of the FCRA, 15 U.S.C. § 1681b(b))
1. An Employer must tell the applicant or employee that it might use information in their consumer report for decisions related to their employment. This notice must be in writing and in a stand-alone format. The notice cannot be in an employment application.
2. An Employer must get written permission from the applicant or employee.
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3. An Employer must certify compliance to the company from which the Employer is getting the applicant or employee's information.
4. The Employer must certify that it
a. notified the applicant or employee and got their permission to get a consumer report;
b. complied with all of the FCRA requirements; and
c. will not discriminate against the applicant or employee or otherwise misuse the information, as provided by any applicable federal or state equal opportunity laws or regulations.
5. If the Employer takes an adverse action based on information in a consumer report, the Employer must give the applicant or employee a notice of that fact - orally, in writing, or electronically.
6. An adverse action notice tells people about their rights to see information being reported about them and to correct inaccurate information. The notice must include:
a. the name, address, and phone number of the consumer reporting company that supplied the report;
b. a statement that the company that supplied the report did not make the decision to take the unfavorable action and can't give specific reasons for it; and
c. a notice of the person's right to dispute the accuracy or completeness of any information the consumer reporting company furnished, and to get an additional free report from the company if the person asks for it within 60 days.
d. Source: Section 604(b) of the FCRA, 15 U.S.C. 1681b(b), and Section 615(a)), 15 U.S.C. 1681m(a). iii. Additional CRA Obligations under the FCRA
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1. CRAs must use reasonable procedures to assure maximum possible accuracy. 15 U.S.C. § 1681e(b).
2. CRAs must investigate disputed incomplete or inaccurate information. 15 U.S.C. § 1681i.
3. Entities that furnish information to CRAs must perform reasonable investigations of consumer disputes that are forwarded to them from CRAs, 15 U.S.C. § 1681s-2(b).
4. CRAs, after a reinvestigation, must delete information that is determined to be inaccurate or that cannot be verified. 15 U.S.C. § 1681i(a)(5).
iv. Remedies
1. Actual damages
2. Economic damages (lost wages, etc.)
3. Emotional distress
4. Punitive damages (must show “willfulness”)
5. Attorney’s fees and costs. d. Federal Bonding Program
i. Often times, employers don’t hire persons with criminal records because their liability insurance company won’t let them—they are viewed as “high risk.”
ii. Provides fidelity bonding insurance coverage to persons who have been denied commercial coverage due to a criminal record, history of alcohol or drug abuse, poor credit, lack of employment history, or dishonorable military discharge.
iii. The program is free to both the applicant and the employer.
iv. Applicant can apply at the local SCWorks office.
v. Applicant receives a letter confirming that he or she is eligible for bond.
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vi. Employer can active the bond simply by calling; there is no written application. vii. Employer may receive substantial tax deductions for hiring the individual.
3. Education
a. Federal Student Aid
i. A student who is receiving federal student aid and is convicted under state or federal law of the possession or sale of illegal drugs while receiving federal student aid will have his or her aid suspended. Student loan eligibility may be suspended for an amount of time depending on the nature of the conviction.
ii. Additionally, conviction of a drug-related offense after submission of the FAFSA can result in lost eligibility for federal student aid, and liability for any financial aid received during a period of ineligibility.
iii. Disqualification periods:
POSSESSION OF SALE OF ILLEGAL ILLEGAL DRUGS DRUGS FIRST OFFENSE One Year Two Years SECOND OFFENSE Two Years Indefinite THIRD (+) OFFENSES Indefinite Indefinite
iv. If a recipient’s eligibility for federal student aid has been suspended due to a drug conviction, they can regain eligibility early by successfully completing an approved drug rehabilitation program or by passing two unannounced drug tests administered by an approved drug rehabilitation program. If they regain eligibility during the award year, they should notify their financial aid office immediately so that they can get any aid for which they’re eligible.
v. Students convicted of a forcible or nonforcible sexual offense, and you are subject to an involuntary civil commitment upon completion of a period of incarceration for that offense. cannot receive a Federal Pell Grant. vi. Source: https://studentaid.gov/understand- aid/eligibility/requirements/criminal-convictions
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b. State-Based Student Aid
i. LIFE Scholarship: Any felony convictions, or second or subsequent alcohol or other drug related misdemeanor conviction within the past academic year. S.C. Code Ann. Regs. § 62-1200.10(A)(7) ii. SC Hope Scholarship: Any felony conviction, or a second alcohol or drug related misdemeanor within the past academic year. S.C. Code Ann. Regs. § 62-900.95(A)(5)
iii. Palmetto Fellows: Any felony conviction or juvenile adjudication, or any second or subsequent alcohol or other drug-related misdemeanor offense within the past academic year. S.C. Code Ann. Regs. § 62-315(A)(6)
iv. Lottery Tuition: The regulations do not specifically enumerate eligibility requirement relating to criminal records, though students must first determine eligibility for federal student aid. S.C. Code Ann. Regs. § 62-900.165
v. SC National Guard College Assistance Program: No specific mention of criminal record eligibility requirements, though applicant must be in good standing with the National Guard. S.C. Code Ann. Regs. § 62-253.
vi. Free Tuition for Residents Sixty Years of Age: No enumerated eligibility requirements relating to criminal records. S.C. Code Ann. Regs. § 62-1110.
4. Voting
a. In South Carolina, the following individuals are barred from voting until full completion of their sentences, including any term of incarceration, probation or parole:
i. any felony or
ii. a misdemeanor involving a violation of election law. S.C. Code Ann. § 7-5-120.
b. Affected individuals have to re-register and may need to provide proof of competition of their sentence.
c. Who is Disenfranchised?
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i. Based on 2016 data, about 47,238 individuals are disenfranchised due to convictions, 82% of which are African American (though African Americans only make up 27.1% of the population)
d. Sources i. Felony Disenfranchisement in South Carolina, NAACP Legal Defense Fund, https://www.naacpldf.org/wp-content/uploads/South- Carolina-2018-Felony-Disenfranchisement-Card_3_29_2018-1.pdf (2018). ii. Felony Disenfranchisement in South Carolina, ACLU of South Carolina, https://www.aclu.org/sites/default/files/pdfs/votingrights/sc_factshee t.pdf
5. Housing
a. Fair Housing Act:
i. Prohibits discrimination in the sale, rental, and financing of housing, and in other housing-related transactions based on race, color, national origin, religion, sex, disability, and familial status.
ii. Generally, much of the same analysis described in the EEOC guidance, above, may apply in housing cases.
b. Public Housing, Section 8 voucher, and Project-Based Section 8
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c. d. Sources i. Table 3. Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance, Cong. Research Service, https://www.everycrsreport.com/files/20161128_R42394_029486d753 8909ac4b1410cc8b626218c552b85a.pdf (Nov. 28, 2016).
ii. 42 U.S.C. §13661(a) et seq.
6. Public Assistance
a. Supplemental Nutrition Assistance Program (SNAP) i. SNAP benefits are provided to supplement the food purchasing power of low-income recipients via the use of an EBT card (a debit card).
ii. Federal law bans individuals convicted of a drug-related felony after August 22, 1996 from receiving SNAP benefits unless the state chooses to opt-out or modify the ban. 21 U.S.C. § 862a (2006). See also 7 C.F.R. 273.11(m) (2012).
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iii. South Carolina has not opted out of the ban.
iv. However, expungement or pardon of a drug-related felony will reinstate eligibility for SNAP. 2.3 Ineligible Household Members, SNAP Policy Manual, Vol. 33, April 2017, https://dss.sc.gov/media/1468/snap-manual-vol-33.pdf b. Temporary Assistance for Needy Families
i. Federal welfare program that provides cash assistance to needy families. ii. The amount of assistance under TANF is reduced if a family member has been convicted of a drug-related felony. iii. States can choose to opt-out or modify the federal ban. The majority of states have either opted-out of or modified the drug felon ban for TANF cash assistance. iv. TANF also includes a 10-year prohibition of assistance to those who have been convicted in state or federal court of committing welfare fraud by applying for benefits in more than one state. 42 U.S.C. § 608(a)(8).
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Expungements: The Law and Process
Adam Whitsett
2/20/2020
Expungements: The Law and The Process
Adam L. Whitsett SLED General Counsel
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Current Expungement Statutes (1) Section 34-11-90(e), first offense misdemeanor fraudulent check;
(2) Section 44-53-450(b), conditional discharge;
(3) Section 22-5-910, first offense conviction in magistrates court;
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Current Expungement Statutes (4) Section 22-5-920, YOA; (5) Section 22-5-930, first offense simple possession or possession with intent to distribute drug convictions; (6) Section 56-5-750(f), first offense failure to stop when signaled by a law enforcement vehicle;
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Current Expungement Statutes (7) Section 17-22-150(a), PTI;
(8) Section 17-1-40, criminal records destruction, except as provided in Section 17-22-950;
(9) Section 63-19-2050, juvenile expungements;
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Current Expungement Statutes (10) Section 17-22-530(A), AEP; (11) Section 17-22-330(A), TEP; (12) Section 17-22-1010, Youth Challenge Academy and Jobs Challenge Program; (13) Any other statutory authorization - § 16-17-530 – Public Disorderly Conduct Conditional Discharge
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§ 17-22-910 (B) Expungement eligibility is based on the offense that the person pled guilty to or was convicted of committing and not the offense charged. (C) The current language for eligibility applies retroactively for all expungements.
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§ 17-1-40 General Sessions Non-convictions ▫ ALL NON-CONVICTIONS ARE ELIGIBLE (any number)
▫ FREE (unless part of a plea deal)
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§ 17-22-950 Summary Court Non-convictions ▫ ALL NON-CONVICTIONS ARE ELIGIBLE (unless objection filed)(any number) ▫ All ARE FREE
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§ 17-22-950 If Fingerprinted: Summary Court shall issue the order to expunge unless dismissal at preliminary hearing or the accused person has charged pending in summary court and a court of general sessions and the charges arise out of the same court of events.
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§ 17-22-950 • If NOT Fingerprinted: ▫ No automatic expungement, but removal from Public Index required ▫ However, person can apply at the summary court for an order with same restrictions above applicable. (Form SCCA223E)
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§ 22-5-910(A)
Magistrate Conviction(s) - not DV • Conviction for a crime carrying a penalty of not more than thirty days imprisonment or a fine of one thousand dollars, or both, including a conviction in magistrates or general sessions court. •Doesnotapplytoanoffenseinvolvingthe operation of a motor vehicle (not all Title 56 offenses do).
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§ 22-5-910 Magistrate Conviction(s) – not DV • Must be three year conviction free (including out-of-state offenses, but excluding minor traffic violations not involving DUI) • Must have no pending charge(s) (unless the pending charge(s) have been pending for more than five years).
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§ 22-5-910(B) Domestic Violence ▫ a conviction for domestic violence in the third degree (Section 16-25-20(D)) or the old CDV first offense (Section 16-25- 20(B)(1) as it existed before June 4, 2015), including a conviction in magistrates or general sessions court
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§ 22-5-910(B) Domestic Violence Must be five years conviction free (including out-of-state convictions, but excluding minor traffic violations not involving DUI) with no pending charges (unless the pending charge(s) have been pending for more than five years).
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§ 22-5-910(E) For the purpose of this section, any number of offenses for crimes carrying a penalty of not more than thirty days imprisonment or a fine of one thousand dollars, or both, for which the individual received sentences at a single sentencing proceeding that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes.
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§ 22-5-910(F) No person may have his records expunged under this section more than once (even if it occurred prior) • Only one conviction or one qualifying “group”
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§ 22-5-920
First Offense YOA Convictions Occurring After June 2, 2010 •a first offense conviction as a youthful offender for which a defendant is sentenced pursuant to the YOA. • no other convictions (including out-of-state, but excluding minor traffic offenses) during the sentence or five years from the date of completion of the defendant’s sentence, including probation and parole
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§ 22-5-920
First Offense YOA Convictions Occurring Prior to June 2, 2010 • a first offense conviction occurring while the individual was a “youthful offender” as defined in Section 24-19-10(d). (no sentencing requirement) • no other convictions (including out-of-state, but excluding minor traffic offenses) during the sentence or five years fromthedateof completion of the defendant’s sentence, including probation and parole
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§ 22-5-920
•Does not apply to: ▫ (a) an offense involving the operation of a motor vehicle [not all Title 56 offenses]; ▫ (b) an offense classified as a violent crime in Section 16–1–60; ▫ (c) an offense contained in Chapter 25, Title 16, except as otherwise provided in Section 16–25–30. ▫ (d) an offense for which the individual is required to register in accordance with the South Carolina Sex Offender Registry Act
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§ 22-5-920 For the purpose of this section, any number of offenses for crimes carrying a penalty of not more than thirty days imprisonment or a fine of one thousand dollars, or both, for which the individual received sentences at a single sentencing proceeding that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes.
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§ 22-5-930 Simple Possession • first offense conviction for simple possession, including magistrate or general sessions •No other convictions (including out-of- state but excluding minor traffic not involving DUI) within three years from the date of the completion of the sentence, including probation and parole, for this conviction and no pending charges
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§ 22-5-930 PWID • first offense conviction for possession with intent to distribute (not manufacturing, distribution, dispensing, delivering, purchasing, or anything else covered by criminal statute) • No convictions (including out-of-state but excluding minor traffic not involving DUI) within twenty years from the date of the completion of any drug or any felony sentence, including probation and parole and no pending charges
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§ 22-5-930(D)
Prior Conditional Discharges No person may have the person’s records expunged pursuant to this section if the person has had a conditional discharge within the five years prior to the date of arrest for the charge sought to be expunged ifthechargesoughttobeexpungedissimple possession of marijuana, or within the ten years prior to the date of arrest for the charge sought to be expungedifthechargesoughttobeexpungedisfor the simple possession of any other controlled substance
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S.C. Code Ann. § 22-5-930(D) A person may have the person’s record expunged even though the conviction occurred before the effective date of this section; however, the expungement will not affect a subsequent enhanced conviction or sentence that occurred before the effective date of this section.
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§ 22-5-930(F) For the purpose of this section, any number of offenses for crimes carrying a penalty of not more than thirty days imprisonment or a fine of one thousand dollars, or both, for which the individual received sentences at a single sentencing proceeding that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes.
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§ 34-11-90(e)
First Offense Fraudulent Check Conviction • a first offense conviction that is not a felony • no other convictions during the one-year period following the conviction under this section (including out-of-state convictions) • No person has any rights under this section more than one time.
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Diversionary Dispositions • § 44-53-450 – Conditional Discharge for Drug Offenses • § 16-17-530 – Conditional Discharge for PDC • § 17-22-150 – PTI • § 17-22-530 –AEP • § 17-22-330 –TEP
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§ 56-5-750(f) First Offense Failure to Stop for Blue Light Convictions • First offense conviction pursuant to subsection (B)(1) [first offense where no great bodily injury or death resulted] that is not a felony • No other convictions (excluding minor traffic offenses not involving DUI) during the three-year period following the completion of the terms and conditions of the sentence • No person has any rights under this section more than one time.
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§ 63–19–2050 Juvenile Expungements • A person who has been taken into custody for, charged with, or adjudicated delinquent for having committed a status offense or a nonviolent crime, as defined in Section 16–1–70, may petition the court for an order expunging. • A person may not petition the court if the person has a prior adjudication for an offense that would carry a maximum term of imprisonment of five years or more if committed by an adult.
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§ 63–19–2050 Status Offenses • If the person has been taken into custody for, charged with, or adjudicated delinquent for having committed a status offense, the court shall grant the expungement order. If the person has been taken into custody for, charged with, or adjudicated delinquent for having committed multiple status offenses, the court may grant an expungement order for the multiple status offenses.
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§ 63–19–2050 Non-violent Offenses • If the person has been taken into custody for, charged with, or adjudicated delinquent for having committed a nonviolent crime, as defined in Section 16–1–70, the court may grant the expungement order. • An adjudication for a violent crime, as defined in Section 16–1–60, must not be expunged.
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§ 63–19–2050
•Thecourt shall not grant the expungement order unless the court finds that the person is at least seventeen years of age, has successfully completed any dispositional sentence imposed, has not been subsequently adjudicated for or convicted of any criminal offense, and does not have any criminal charges pending in family court or general sessions court.
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§ 63–19–2050
Juvenile Non-convictions • If the person was found not guilty in an adjudicatory hearing in the family court, the court shall grant the expungement order regardless of the person’s age and
• the person must not be charged a fee for the expungement.
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§ 63–19–2050 (C)(2) For the purpose of this section, any number of offenses for which the individual received youthful offender sentences at a single sentencing proceeding for offenses that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes.
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§17–22–1010 Youth Challenge Academy • Must be eligible pursuant to Sections 22-5-910, 22-5- 920, 34-11-90(e), and 56-5-750(F) and must successfully complete the South Carolina Youth Challenge Academy and the South Carolina Jobs Challenge Program administered by the South Carolina Army National Guard. • Can have no other convictions during the approximately one-year period as provided in subsection (A), or immediately after graduation and successful completion • No person may have his records expunged under this section more than once.
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Minor Traffic-related Offenses § 17-22-940(E) - If the expungement is sought pursuant to Section 34-11-90(e), Section 22-5-910, Section 22-5-920, Section 63-19-2050, or Section 56-5-750(f), the conviction for any minor traffic-related offense that is not related in any way to driving under the influence of alcohol or other drugs will not be considered as a bar to expungement.
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§ 17-22-940 – Role of SLED (E) SLED shall verify and document that the criminal charges in all cases, except in cases when charges are sought to be expunged pursuant to Section 17-1-40, Section 17-22-150(a), Section 17- 22-530(A), Section 17-22-330(A), or Section 44- 53-450(b), are appropriate for expungement before the solicitor or his designee, and then a circuit court judge, or a family court judge in the case of a juvenile, signs the application for expungement.
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Forms - § 17-22-930 A person applying to expunge a criminal record shall obtain the appropriate blank expungement order form from the solicitor's office in the judicial circuit where thechargeoriginated.The use of this form is mandatory and to the exclusion of all other expungement forms.
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Use of One Order - § 17-22-940 (G) Each expungement order may contain only one charge sought to be expunged, except in those circumstances when expungement is sought for multiple charges occurring out of a single incident and subject to expungement pursuant to Section 17-1-40 or 17-22- 150(a).
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Non-Criminal Offenses • 63-3-620 – Contempt of Court (Civil) ▫ (Both CDR Codes 763 and 2442) • 44-53-391 – Drug Paraphernalia • 56-5-6520 – Seatbelt Violation • 16-17-500(F)(1) – Cigarette Purchase By Minor • 56-5-3425 – Bicycle Violations • 6-9-80 – Building Code Violations
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Non-Criminal Offenses • 55-1-100(B) – Aircraft / Refusal of Breath Test • 55-5-260(A) – Aircraft / USARA Violation • 55-13-10 – Violation of Regulations Enacted by Counties Regarding Airports • 56-5-3890(B) – Texting • 58-23-1680(B) – Passenger / TNCA Violation
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Contact Information Adam L. Whitsett SLED General Counsel [email protected] Office (803) 896-0647 Cell (803) 206-4636
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21
Self-Care for Criminal Law Practitioners
Tricia Phaup Patricia Ravenhorst
2/20/2020
STRESS, BURNOUT, VICARIOUS TRAUMA AND PROMOTING RESILIENCY
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SC COALITION
The collective voice promoting the prevention of domestic violence and sexual assault in South Carolina.
Collaboration Advocacy
Education
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1 2/20/2020
SC COALITION
Tricia Phaup, MSW, LMSW Program Coordinator for Training & Events [email protected] 803-256-2900
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SC COALITION Patricia Ravenhorst, JD General Counsel
[email protected] Main: 803-256-8900
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2 2/20/2020
PRESENTATION OBJECTIVES • Participants will gain foundational knowledge about the impact of stress, burnout, secondary traumatic stress (STS) and vicarious trauma (VT); • Participants will learn about warning signs of Depression, Anxiety, STS and VT and will explore ways in which it may show itself in everyday life and work; • Participants will learn how their job (legal professions) may make them more susceptible to stress, depression, and other mental health issues. • Participants will gain individual and organizational tools to prevent staff impact of burnout, stress, anxiety, depression, secondary trauma and to promote resilience.
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ACTIVITY- IDENTIFYING SOURCES OF STRESS
Activity from A Gecko’s Guide to Building Resiliency in Child Abuse Staff and Volunteers.
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3 2/20/2020
LIST YOUR TOP 10 SOURCES OF STRESS
A = Administrative functions of the work
T = Encounters with traumatic material
P = Stresses with your personal life (family, friends, pets, home, etc.)
E = Everything else (bad weather, car breaks down, etc.)
Activity from A Gecko’s Guide to Building Resiliency in Child Abuse Staff and Volunteers.
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JOB RELATED STRESSORS • Too little time • Lack of control over workload • High workload • Lack of control over schedule • Lack of shared control over decision-making • Dealing with angry, sad, unhappy people on a daily • Conflicting work roles with basis (often dealing with the too much responsibility worst experience of your • Jobs that are not clearly client’s life) defined • Adversarial nature of job • Lack of support • Exposure to trauma • Lack of opportunity for growth and development Guarino, Kathleen. American Institutes for Research.
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4 2/20/2020
CHARACTERISTICS –STEREOTYPICAL WORDS TO DESCRIBE A “GOOD ATTORNEY”
Attorney Confident Smart Box “analytical”
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WHAT IMPACT DOES THIS HAVE ON INDIVIDUALS TO ALWAYS UPHOLD THIS IMAGE?
• Can’t Show Vulnerability • Have to Stay Focused • Makes It Hard to Collaborative • Fake It • Impossible to Ask for Help • Feeling Isolated • Becoming Overwhelmed • More Errors – “cycle of getting behind” • Maxed Time – can’t get it all done • Fear of Losing License – “not seeking help can contribute to losing license”
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5 2/20/2020
Alcohol & Sleeping Pills Caffeine Can’t Sleep
Work Exercise Longer Lessens Hours
Time with Family Poor Friends Nutrition Decreases
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STRESS
Accept that the practice of law is inherently stressful
Know and take advantage of your personal strengths – No one is perfect – examine how you may be over-extending yourself. What are ways you over-extend yourself?
Attorneys often more comfortable in the role of a counselor, solving problems for others – often hard to be the person asking for or seeking help. It is OK to ask for help and delegate responsibilities.
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6 2/20/2020
BURN-OUT
A prolonged response to chronic emotional and interpersonal stressors on the job, which consists of three components: Exhaustion; Depersonalization; And diminished feelings of self-efficacy in the workplace.
Burnout often takes the form of reduced energy and interest at work and at home.
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SECONDARY TRAUMATIC STRESS AND VICARIOUS TRAUMA Sometimes called “compassion fatigue,” STS refers to the adverse reactions of helpers who seek to aid trauma survivors.
Vicarious Trauma is “the cumulative transformation in the inner experience…that comes about as a result of empathic engagement with the client’s traumatic material.”
Meichenbaum, D.
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7 2/20/2020
THE AMERICAN BAR ASSOCIATION WORKING GROUP TO ADVANCE WELLBEING WROTE RESOLUTION 105
“Studies cited show that our members suffer at alarming rates from conditions that impair our ability to function at levels of compatible with high ethical standards and public expectations. Depression, anxiety, chronic stress, burnout, and substance use disorders exceed those of many other professions. We have ignored this state of affairs long enough. To preserve the public’s trust and maintain our status as a self-regulating profession, we must truly become “our brothers’ and sisters’ keepers,” through a strong commitment to caring for the well-being of one another, as well as ourselves.” (adopted by the ABA House of Delegates in February 2018)
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ALCOHOL & SUBSTANCE USE –COPING MECHANISM
. Estimates around the country indicate that the incidence of substance abuse among lawyers is as much as double the national average (18%)
. 20.6% of lawyers reported problematic drinking (other studies cited show that the rate of alcohol addiction among lawyers is between 15% and 24%)
. Alcohol accounts for nearly 95% of substance use disorders among attorneys
. About one in every three lawyers is a problem drinker, and one in every five has an alcohol use disorder
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8 2/20/2020
CAGE SCREENING Two “yes” responses indicate that the possibility of alcoholism should be investigated further.
Dr. John A Ewing – widely used and an extensively validated method of screening for alcoholism.
National Institute on Alcohol Abuse & Alcoholism https://pubs.niaaa.nih.gov/publications/arh 28-2/78-79.htm
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ANXIETY
Panic disorder: You feel terror that strikes at random. During a panic attack, you may also sweat, have chest pain, and feel palpitations (unusually strong or irregular heartbeats). Sometimes you may feel like you’re choking or having a heart attack. Generalized Anxiety Disorder(GAD) You feel excessive, unrealistic worry and tension with little or no reason. Symptoms: All anxiety disorders share some general symptoms:
• Panic, fear, and uneasiness • Not being able to stay calm and still • Sleep problems • Cold, sweaty, numb or tingling hands • Nausea or feet • Tense muscles • Shortness of breath • Dizziness • Dry mouth • Heart palpitations
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9 2/20/2020
DEPRESSION –
. Loss of interest & pleasure . Change in appetite or weight . Change in sleeping patterns . Fatigue or loss of energy . Feeling worthlessness or excessive or inappropriate guilt . Diminished ability to think or concentrate or indecisiveness . Recurrent thoughts of death or suicide . Women are twice as likely to have depression as men (biological differences and seek help more than men).
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DEPRESSION & ANXIETY -LAW PROFESSION
A 1990 study by Johns Hopkins University found that among more than 100 occupations studied, lawyers were the most likely to suffer from depression and were 3.6 times more likely to do so. “Occupations and the Prevalence of Major Depressive Disorders,” 32 Journal of Occupational Medicine 1079 (1990).
Lawrence Kriefter, a professor at Florida State University College of Law, conducted research showing that practicing lawyers exhibit clinical anxiety, hostility and depression at rates that range from 8-15 times those of the general population. (The National Law Review)
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10 2/20/2020
LISTENING TO CLIENTS’ TRAUMATIC STORIES
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TRAUMA & VICARIOUS TRAUMA RESPONSE
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11 2/20/2020
Vicarious Trauma Symptoms
. Re-experiencing . Feeling Numb and . Hypervigilance Disconnected . Emotional Exhaustion . Difficulties Regulating . Anger and Cynicism . Problems Maintaining . Feelings of Professional Boundaries Inadequacy . Avoidance
Guarino, Kathleen. American Institutes for Research.
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“The expectation that we can be immersed in suffering and loss daily and not be touched by it is as unrealistic as expecting to be able to walk through water without getting wet.” -Rachel Naomi Remen
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12 2/20/2020
SUICIDE WARNING SIGNS • Unrelenting Low • Recent Mood Impulsiveness & Taking Unnecessary • Pessimism Risks • Hopelessness • Threatening or • Desperation Expressing a Strong Wish to Die • Anxiety • Making a Plan • Inner tension • Unexpected Rage or • Withdrawal Anger • Sleep Problems • Increased Alcohol & Other Drugs
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SOUTH CAROLINA BAR ASSOCIATION’S HELP TASK FORCE:
One in four lawyers suffer from elevated feelings of psychological distress, including feelings of inadequacy, inferiority, anxiety, social alienation, isolation, and depression.
Male lawyers in the United States are two times more likely to commit suicide than men in the general population.
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Self-Care
ACTIVITY – IDENTIFYING SOURCES OF ENJOYMENT
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14 2/20/2020
COMMITMENT TO ORGANIZATIONAL & STAFF RESILIENCE
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RESOURCES
Lawyers Helping Lawyers Website: https://www.scbar.org/lawyers/member-benefits-assistance/lawyers-helping-lawyers/
Helpline: (866) 545-9590
Free Counseling Services: (855) 321-4384 5 free hours of counseling Anonymous Bar members may call CorpCare at (855) 321-4384 to be referred to a counselor in their area 24-hours a day
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15 2/20/2020
Questions & Answers
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THANK YOU FOR YOUR……
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REFERENCES •Guarino, Kathleen. American Institutes for Research. 2018. www.air.org. •Meichenbaum, Donald. Self-Care for Trauma Psychotherapists and Caregivers: Individual, Social and Organizational Interventions. Downloaded at https://www.melissainstitute.org/documents/Meichenbaum_SelfCare_11thc onf.pdf. •Office of Justice Programs, Office for Victims of Crime. Vicarious Trauma Toolkit. https://vtt.ovc.ojp.gov/tools-for-law-enforcement. •National Center on Domestic Violence, Trauma & Mental Health. Tools for Transformation: Becoming Accessible, Culturally Responsive, and Trauma- Informed Organizations. April 2018.
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REFERENCES (CONT.) •The University of Texas at Austin. Institute on Domestic Violence and Sexual Assault. A Gecko’s Guide to Building Resiliency in Child Abuse Staff & Volunteers. 2009. •Vivian, Pat and Shana Hormann. Organizational Trauma and Healing. 2013.
•The Lawyers’ Epidemic: Depression, Suicide and Substance Abuse. Mauney, C. Stuart, SC Bar HELP Task Force, Lawyers Helping Lawyers Commission
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GECKO’S RESILIENCY
BUILDING INDIVIDUAL RESILIENCE
Gecko’s Guide to Building Resiliency in Child Abuse Staff and Volunteers https://vtt.ovc.ojp.gov/ojpasset/Documents/RES_Resiliency_In_Child_Abuse_Org-508.pdf
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18 2/20/2020
RESILIENCY MODEL
Self Knowledge and Insight
Strong Relationships
Activity from A Gecko’s Guide to Building Resiliency in Child Abuse Staff and Volunteers.
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SELF KNOWLEDGE AND INSIGHT
Strengthened by self-esteem, a sense of control, independence, and self-compassion.
Activity from A Gecko’s Guide to Building Resiliency in Child Abuse Staff and Volunteers.
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19 2/20/2020
PAUSE AND REFLECT
. Why do you do this work? What are the costs/benefits?
. What beliefs do you have about the people you serve and/or yourself that could interfere with your wellbeing on the job?
Guarino, Kathleen. American Institutes for Research.
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SENSE OF HOPE
Strengthened by a sense of humor, the ability to have fun, and optimism.
Activity from A Gecko’s Guide to Building Resiliency in Child Abuse Staff and Volunteers.
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20 2/20/2020
PAUSE AND REFLECT .What are two communities that are important to you? How do they “feed you” and help you to feel supported and connected? .What makes you feel connected? (Can be related to faith in a Higher Power, humanity, or something else.) .What are your grateful for? (keep a journal)
Guarino, Kathleen. American Institutes for Research.
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HEALTHY COPING
Strengthened by planning, using skills and abilities to address secondary traumatic stress in the workplace.
Activity from A Gecko’s Guide to Building Resiliency in Child Abuse Staff and Volunteers.
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21 2/20/2020
PAUSE – CONNECT WITH BREATH & PRESENT MOMENT
Stop what doing Take a breath Observe Proceed
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STRONG RELATIONSHIPS
Strengthened by attachment to others, seeking and giving support, and speaking up for a change.
Activity from A Gecko’s Guide to Building Resiliency in Child Abuse Staff and Volunteers.
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22 2/20/2020
PAUSE AND REFLECT . Who within your family or friends do you check in with?
. How do you make regular time for socialization and fun?
. Do you have established rituals with your family, coworkers, friends for socialization and fun?
Guarino, Kathleen. American Institutes for Research.
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PERSONAL PERSPECTIVE AND MEANING
Strengthened by morality and integrity, spirituality, and coherent life meaning.
Activity from A Gecko’s Guide to Building Resiliency in Child Abuse Staff and Volunteers.
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23 2/20/2020
PAUSE AND REFLECT
. What spiritual or philosophy of life keeps you balanced and helps you make meaning of your work?
. What do you do when you have a particularly difficult/upsetting case?
. What do you do to help you recognize and learn from mistakes? Is there someone you can talk to who will (gently) point these out to you?
Guarino, Kathleen. American Institutes for Research.
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