In 2003, the South Carolina Supreme Court amended the lawyer’s oath to include a vow of “civility” towards “opposing parties and their counsel.” In 2004, the Supreme Court amended Rule 7 of the Rules for Lawyer Disciplinary Enforcement to make it a “ground for discipline” to “violate the oath of office taken to practice law in this state and contained in Rule 402(k), SCACR.”
At that point, I was expecting an eventual deluge of disciplinary opinions for violations of the civility oath. I have a local colleague whose alleged breech of the civility oath was part of a disciplinary case argued in the Supreme Court last September. I participated in a hearing in 2008 in which the trial judge reported opposing counsel for a violation of the civility oath in her treatment of me. Given my aggressive approach to representation, I am glad no one has attempted to grieve me for an alleged violation of the civility oath. Still, seven years later, no one had been disciplined for violating the civility oath.
Until today [March 7, 2011]. Today the South Carolina Supreme Court suspended an attorney in the case of In the Matter of William Gary White, III, 391 S.C. 581, 707 S.E.2d 411 (2011) from the practice of law for ninety days for his violation of the civility oath. Mr. White was disciplined for courtesy copying a letter to the Atlantic Beach Town Attorney and Town Manager with the following language:
You have been sent a letter by purported Town Manager Kenneth McIver. The letter is false. You notice McIver has no Order. He also has no brains and it is questionable if he has a soul. Christ was crucified some 2000 years ago. The church is His body on earth. The pagans at Atlantic Beach want to crucify His body here on earth yet again.
We will continue to defend you against the Town’s insane [sic]. As they continue to have to pay for damages they pigheadedly cause the church. You will also be entitled to damages if you want to pursue them.
First graders know about freedom of religion. The pagans of Atlantic Beach think they are above God and the Federal law. They do not seem to be able to learn. People like them in S.C. tried to defy Federal law before with similar lack of success.
The Town Manager delivered the letter to the town council and members of the town council filed a grievance against Mr. White. Mr. White argued before the disciplinary proceedings that his actions did not violate Rule 4.4(a), Rule 407, SCACR, which states that “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 . . . .” White argued that this Rule contains its own “safe harbor” that protects “uncivil” remarks when they serve other purposes. The Supreme Court rejected this argument. White further argued that the “contents of his letter are protected by the United States Constitution by the First Amendment provisions for freedom of speech and freedom of religion.” The Supreme Court rejected this argument, finding White:
could have zealously protected his client’s rights by means other than using derogatory and demeaning comments. The legal profession is one of advocacy; however, Respondent’s role as an advocate would have been better served by zealously arguing his client’s legal position, not making personal attacks.
The practice of law is rife with tension-creating conflict and even the calmest attorney can occasionally slip into a moment of incivility. In the Matter of William Gary White, III might be the first of a deluge of disciplinary opinions for violations of the South Carolina lawyer’s civility oath.