Ethics Opinions Every South Carolina Attorney Should Know: Part XVII, Anything Can Lead to Discipline but the Supreme Court is Not Your Adversary

This is the final ethics lesson I wish to impart to my mentees, though I intend to add to this series in the future as I develop new insights through my reading of ethics opinions.  To any attorney out there who has not completed his or her Rule 403 trial experiences, I would advise them to read In Re Curry, 373 S.C. 620, 647 S.E.2d 179 (2007). I would also note my expectation that within a few years some attorney will be publicly reprimanded (at least) for violating South Carolina Rule of Professional Conduct 3.3(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.”)  Avoid being that attorney.

In the Matter of William Grayson Ervin, 387 S.C. 551, 694 S.E.2d 6 (2010), is the most recent opinion to be analyzed in this series [issued May 11, 2010] but it imparts a couple of important lessons.  First, it demonstrates the extent to which an attorney’s activities outside of the practice of law can be scrutinized for potential disciplinary issues. Second, it demonstrates that the Supreme Court will advocate for an attorney if that attorney is honest and forthcoming.

Ervin was an infamous news story in the LowCountry.  He was an assistant solicitor who was arrested when, allegedly, in a fit of road rage, he sped up and brandished a firearm at a lone female driver while both were crossing the Arthur Ravenel bridge.  Ervin was immediately dismissed from the Solicitor’s office, suspended from the practice of law, and charged with a crime.  Because he had been an assistant solicitor, the Attorney General’s Office handled the criminal charges.  Ervin was offered pre-trial intervention, which he successfully completed, and the charges were dismissed and his record expunged.

Ervin had a different explanation of these events than what the media reported.  He claimed that, while merging onto the bridge, he drove behind a vehicle traveling around twenty miles-per-hour, which was ”zigzagging” in the lane, so he attempted to get around it.  While acknowledging that he was following the vehicle too closely, as he tried to pass the vehicle the female driver and her male passenger extended their middle fingers and shouted at him.  He tried to pass them a couple of times, but they cut him off each time. When he was eventually able to get in front of the car, he tapped his brakes, apparently in an attempt to frustrate the driver.

The female driver then pursued and passed him. As the couple’s vehicle passed Ervin’s vehicle, the male passenger held up a gun, put his middle finger up, and yelled at him. Ervin passed them, took his gun from the center console, and said: “What the hell are you doing, I have one too.”

The Attorney General’s office apparently accepted the woman’s version of events and never investigated Ervin’s claim.  In the disciplinary proceedings, the Hearing Panel ordered the 911 tape and learned that the woman had been lying about being alone in the vehicle.  Based on that and additional information that came to light, the Supreme Court decided to accept Ervin’s version of events. As the Supreme Court analyzed the matter:

The true facts concerning the road rage incident in no manner exonerate Respondent [Ervin], yet the facts mitigate the degree of his misconduct. Respondent exercised extremely poor judgment in participating in this road rage incident. Respondent could have removed himself from the situation after the initial contact, but he chose to further engage the couple in the other vehicle. Respondent was then confronted and threatened by the male passenger with a firearm. The female driver lied to law enforcement, and when law enforcement merely accepted her claims without any scrutiny, she saw an opportunity to leverage Respondent in a civil lawsuit. If law enforcement had simply listened to the 911 transmission, the falsity of the center piece of the female driver’s claim would have been revealed.

The Panel questioned Respondent regarding his counseling sessions. Respondent admitted he perhaps had unresolved issues as a result of a prior shooting incident when he was a police officer. Respondent was candid with the Panel and took full responsibility for his actions.

In their report, the Panel adopted Respondent’s version of events as a matter of fact, specifically finding that the driver lied when she told police she was alone in the vehicle. We concur in this assessment.

The Supreme Court found that Ervin’s admitted behavior violated South Carolina Rules of Professional Conduct 8.4(a) (“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”) and 8.4(b) (“It is professional misconduct for a lawyer to… commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects”). As mitigating factors, the Supreme Court found Ervin made full disclosure to the Office of Disciplinary Counsel, demonstrated genuine remorse for his conduct, and had no disciplinary history.  While the Hearing Panel recommended a two year suspension, the Supreme Court only required a six month retroactive suspension.

Ervin demonstrates how honesty and remorse benefits an attorney in disciplinary proceedings. The Hearing Panel could have accepted the female driver’s version of events but undertook investigation and, upon learning that she was not credible, accepted Ervin’s version of the events in full.  The Supreme Court could have accepted the Panel’s recommendation of a two-year suspension (in which case Ervin would have had to go through the reinstatement process of Rule 33 of the Rules for Lawyer Disciplinary Enforcement) but gave him a six month retroactive suspension. Thirteen days after this disciplinary opinion came out, Ervin was reinstated to the practice of law.

The lessons of Ervin: 1) all aspects of an attorney’s life can lead to discipline and; 2) the Office of Disciplinary Counsel and Supreme Court are not your adversary.

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