Ethics Opinions Every South Carolina Attorney Should Know (March 2011)
Material for South Carolina Bar Seminars Direct Online CLE
This material was inspired by the numerous newly-licensed attorneys I have formally and informally mentored. During my eighteen years of practice, I have seen colleagues derail their careers after getting disbarred, suspended or even publicly reprimanded. Given how much time, effort and money we put into obtaining a law license, and how intellectually and spiritually fulfilling and financially remunerative the practice of law can be, I wanted these mentees to understand the common ways that attorneys tarnish their reputations or lose their licenses. I had them read legal ethics opinions I thought they should know. When I finished my first round of formal mentoring, I saw a need for a less ad hoc approach and decided to locate opinions to demonstrate the lessons that I believe needed highlighting. This lecture and its materials are the result.
Lesson I, Don’t Ignore the Office of Disciplinary Counsel
In the Matter of Patrick E. Treacy, 77 S.C. 514, 290 S.E.2d 240 (1982) may be the most cited disciplinary opinion in all of South Carolina law. Despite both the Hearing Panel and the Executive Committee of the Board of Commissioners on Grievances and Discipline recommending that Treacy be publicly reprimanded, the South Carolina Supreme Court indefinitely suspended him. This harsh sanction was largely due to Treacy’s failure to respond to request for information from the disciplinary board.
Under the current Rules for Lawyer Disciplinary Enforcement (South Carolina Appellate Court Rule 413) a lawyer has fifteen days from receipt of a “notice of investigation” from the Office of Disciplinary Counsel to file a written response. Rule 19(b), Rules for Lawyer Disciplinary Enforcement. Failure to respond timely to the notice of investigation results in a “Treacy letter” being sent to the attorney. See e.g., In Re Pennington, 380 S.C. 49, 668 S.E.2d 402, 404 (2008). Under Rule 7.3(d) of the Rules for Lawyer Disciplinary Enforcement:
It shall be a ground for discipline for a lawyer to …willfully violate a valid order of the Supreme Court, Commission or panels of the Commission in a proceeding under these rules, willfully fail to appear personally as directed, willfully fail to comply with a subpoena issued under these rules, or knowingly fail to respond to a lawful demand from a disciplinary authority to include a request for a response or appearance under Rule 19(b)(1), (c)(3) or (c)(4).
Merely ignoring a “notice of investigation” from the Office of Disciplinary Counsel is, in itself, a violation of the South Carolina Rules of Professional Conduct and gives rise to discipline even if the underlying grievance had no merit.
The lesson of Treacy: don’t ignore the Office of Disciplinary Counsel.
Lesson II, Exercise Proper Deposition Defense Conduct
My first job out of law school was as the lone associate for a well-regarded personal injury attorney who was trying to establish his own practice. The easy cases he worked on himself. I assisted in cases with large damages, questionable liability and, often, significant legal, procedural or evidentiary hurdles to overcome. It was like working for Don Quixote and I did not like being Sancho.
I got to take my first depositions because my boss, trying to outsmart a discovery deadline in a Federal case, noticed a weeks’ worth of simultaneous depositions in San Francisco and Washington D.C. When opposing counsel refused to reschedule either set of depositions, I was sent to D.C. with instructions to do the best I could.
This was not ideal circumstances. Not only had I never taken a deposition before, I had never seen a deposition taken before. The depositions were being defended by an Arnold & Porter partner (a hugely political firm established by a former United States Supreme Court justice) and I was deposing high level employees of the American Red Cross, including its President and its Head of Epidemiology.
The whole experience was designed to be intimidating. I arrive at the Arnold & Porter office and notice what looks like a Robert Rauschenberg-inspired wall-sized mural on the lobby wall. I comment to the receptionist that the mural looks like a Rauschenberg and am casually informed that it is an actual Rauschenberg–this firm has million dollar artwork in its reception area! The depositions hadn’t started and I was already feeling like a “pretend” attorney that these “real” attorneys recognized as an imposter.
It got worse. For five days no matter what question I asked of a Red Cross witness, Arnold & Porter partner would raise an objection. Often these objections would include long-winded explanations of what was wrong with my question with the objection conveying to the witness the problem that he (all these deponents were male) should have with my question. The deponents, being highly intelligent and experienced professionals, would then use the attorney’s objection as a guide to providing evasive answers. This would go on for hours and I had no idea how to get the attorney to stop making objections or get the witnesses to answer my questions. I would end each day so utterly frustrated that it took all my limited emotional strength to not break down sobbing in the Arnold & Porter partner’s presence.
Eighteen years later I would know exactly how to handle this situation. In the Matter of Anonymous Member of the South Carolina Bar, 346 S.C. 177, 552 S.E.2d 10 (2001), explains how defending counsel is to conduct him or herself during a deposition in accord with the requirements of Rule 30(j) of the South Carolina Rule of Civil Procedure (a rule derived from Judge Robert S. Gawthrop’s seminal opinion in Hall Clifton Precision, 150 F.R.D. 525 (E.D.Pa.1993), which, ironically, is from the same district court as the Red Cross case I was taking depositions in).
In Re Anonymous sets strict limits on off-the-record conferences between a deponent and the defending attorney:
[A] deposition’s beginning signals the end of a witness’s preparation. Once a deposition begins, an attorney and a client may have an off-the-record conference only when deciding whether to assert a privilege or to discuss a previously undisclosed document…
The opinion further highlights limits on suggestive objections and interjections:
In order to prevent witness coaching during depositions, the rule prohibits lengthy “speaking” objections and brief suggestive interjections. As noted by Judge Gawthrop in Hall, the rules of evidence “contain no provision allowing lawyers to interrupt the trial testimony of a witness to make a statement. Such behavior should likewise be prohibited at depositions, since it tends to obstruct the taking of the witness’s testimony.” …Therefore, interjections during a deposition by the witness’s attorney such as “if you remember” and “don’t speculate” are improper because they suggest to the witness how to answer the question…
The underlying purpose of a deposition is to find out what a witness saw, heard, or did—what the witness thinks. A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers. The witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witness’s words to mold a legally convenient record. It is the witness—not the lawyer—who is the witness.
Rule 30(j)(1), SCRCP also directs the deponent to look to the attorney asking the question, not the witness’s own counsel, for any clarifications or explanations. A witness’s attorney cannot object to a question just because the attorney does not understand the question. Furthermore, it is improper for counsel to state for the record their interpretations of questions, since such interpretations are completely irrelevant and improperly suggestive to the deponent. A witness’s attorney must also refrain from rephrasing questions for the witness.
New Rule 30(j), SCRCP, also limits when an attorney may advise a witness not to answer a question during a deposition. The only circumstances under which an attorney may instruct the witness not to answer a question in a deposition are: (1) when counsel has objected to the question on the ground that the answer is protected by a privilege; (2) when the information sought is protected by a limitation on evidence directed by the court; and (3) when the witness’s counsel intends to present a motion under Rule 30(d), SCRCP (witness harassment). See Rule 30(j)(3), SCRCP. The rule even requires attorneys to affirmatively direct their witnesses to answer a question unless they make one of these objections.
In Re Anonymous explicitly states that failing to abide by these above limitations on defending counsel’s behavior is not “zealous advocacy” but is, instead, a violation of the Rules of Professional Conduct. In the years shortly after this opinion’s release, I continued to see opposing attorneys make speaking or suggestive suggestions but this behavior is declining with time. When such behavior occurs, I make a copy of In Re Anonymous an exhibit to my deposition and read to opposing counsel the provision of this opinion that I believe he or she is violating. This almost always stops the offensive behavior.
In Re Anonymous also contains excellent instructions on the respective duties of a supervising attorney and the attorneys they supervise in complying with the Rules of Professional Conduct.
The lesson of In Re Anonymous: with limited and clearly-defined exceptions, the task of an attorney defending a deposition is to listen and be quiet.
Lesson III, Zealous Advocacy Never Involves Treating Others with Discourtesy
Harvey Golden had a reputation as the seminal attorney in the development of South Carolina family law. The man clearly had impact on our profession. Family court judges rarely discuss their views of individual attorneys with other attorneys yet in 2010 two family court judges spontaneously brought up Mr. Golden. One judge considered Harvey one of the finest domestic attorneys in South Carolina; the other judge considered him the worst.
Golden’s reputation was one of extreme aggression, almost to the point of bullying. This behavior eventually contributed to his legal-ethics troubles. In the Matter of Harvey L. Golden, 329 S.C. 335, 496 S.E.2d 619 (1998), gave Harvey a public reprimand for his ugly conduct during two depositions. The offensive conduct in the first deposition includes:
(1) [Attorney]: And who was your lawyer in your first divorce?
[Attorney]: Was that because you are cheap or you think you are smart enough to be your own lawyer? Is that what you think?
[Smith]: What kind of a question is that?
[Attorney]: It’s a good question.
(2) [Attorney]: I don’t need criticism from you. You ain’t nearly as good as I am about answering questions or asking them. Just answer my questions, mister.
(3) [Attorney]: Don’t get snide with me. Just answer my questions or you are going to be in severe difficulty, especially if you make me angry at you. I’m not going to try to get angry with you. Just answer my questions.
(4) [Attorney]: You are coming across as an absolutely ridiculous person. But that’s okay, you will learn the hard way.
(5) [Attorney]: You are not smart enough to question my questions. You are not smart enough to even answer my questions. But do the best you can.
(6) [Attorney]: Do you understand English? I speak real clear English.
(7) [Attorney]: You—you must understand that this is not just a test of your telling the truth, this is also a test of your reasonableness. And whether you flunked or not is not going to be subject of my discussion here at this time.
(8) [Attorney]: And if you keep your mouth shut I might get on to [the] next question.
(9) [Attorney]: You are going to jail if you are an obstructionist in this State here, and especially if you are lying.
(10) [Attorney]: Well, I am not going to argue with you. You are not smart enough to argue with.
(11) [Attorney]: No, you don’t tell me how to ask questions. We just take your answers down and we’ll deal with you with the judge. See, and then we will see how smart you are.
(12) [Attorney]: You are just not smart enough to know what a restraining order is.
(13) [Attorney]: So you think it is your scintillating personality that caused him to want to play chess with you?
(14) [Attorney]: And when was that?
[Smith]: When was that? It was more than once. The first night was New Years Eve.
[Attorney]: What year?
[Smith]: It was, it was the New Years Eve we left the party.
[Attorney]: What year?
[Smith]: I would say it was January 1st 1994 was the first time we ever did it.
[Smith]: Uh-huh. (Indicating yes).
[Attorney]: That’s not New Years Eve. January first is not New Years Eve.
[Smith]: I know but see the clock goes through 12:00. And when it goes past twelve then it is the next day, which makes it January 1st.
[Attorney]: And no longer New Years Eve, is it?
(15) [Attorney]: Did you fight them?
[Attorney]: Did you fight them?
[Smith]: No, I didn’t fight them.
[Attorney]: Okay. So they didn’t need five, they just needed one, right?
[Smith]: I bit one.
[Attorney]: Why did you bite him?
[Smith]: `Cause I was hungry.
[Attorney]: Okay. Where did you bite him?
[Smith]: (sigh) He had his foot—
[Attorney]: Where did—
[Smith]: —in my—
[Attorney]: I didn’t say why. I—
[Attorney]: —Asked you where did you bite him?
[Smith]: Okay. Somewhere around his ankle. It was right on top of my face.
[Attorney]: Uh-huh. And was that because you were trying to fight them?
[Smith]: If you had been there I would probably bite you, too.
[Attorney]: No, I’d shoot you before you could bite me.
[Attorney]: Guaranteed. Guaranteed.
(16) Attorney referred to Smith, who had been a patient at Charter Hospital, as an “inmate” of the hospital.
(17) Smith injured his back moving a box of books while preparing for the school year. Attorney asked Smith, who was a teacher, if he was the janitor:
[Attorney]: You are not a janitor, are you?
[Attorney]: You are not the janitor, are you?
[Smith]: Gee, now what kind of question was that?….
[Attorney]: … When you said you get the desks in order, that’s something for the janitor to do, get the desks in order?
After the conclusion of the second deposition, Golden told the witness:
“You are a mean-spirited, vicious witch and I don’t like your face and I don’t like your voice. What I’d like, is to be locked in a room with you naked with a very sharp knife.” Thereafter, it is alleged that Attorney said: “What we need for her [pointing to the witness] is a big bag to put her in without the mouth cut out.”
The Hearing Panel, which had an opportunity to hear first-hand the testimony of the witnesses, summed up Golden’s actions in the following way:
[Attorney’s] conduct … exemplifies the worst stereotype of an arrogant, rude, and overbearing attorney. It goes far beyond tactical aggressiveness to a level of gratuitous insult, intimidation, and degradation of the witness. It is behavior that brings the legal profession into disrepute.
The Supreme Court agreed with the Hearing Panel’s assessment. It noted:
While attacking a witness’s credibility is a legitimate and often necessary objective, Attorney’s conduct at the Smith deposition went far beyond this purpose. We find Attorney’s bullying of a mentally unstable witness in the Smith deposition an utterly inappropriate trial tactic. Although Mr. Smith was a hostile witness, Attorney’s behavior was unwarranted. If he truly thought Mr. Smith was intentionally being unresponsive and recalcitrant, Attorney could have recessed the deposition and moved the family court for an order requiring Mr. Smith to respond appropriately. We find, by clear and convincing evidence, that Attorney used means that had no purpose other than to embarrass, delay, or burden a third person. Thus, he has violated Rule 4.4 by his conduct at the Smith deposition.
The Court took this case as an opportunity to:
remind the Bar that although a deposition is not conducted in a courtroom in the presence of a judge, it is nonetheless a judicial setting. Because there is no presiding authority, it is even more incumbent upon attorneys to conduct themselves in a professional and civil manner during a deposition.
I have only dealt with one attorney in my career who bullied witnesses to establish his own authority. I assume Harvey’s demeanor was similar, which leads me to conclude that the later judge’s assessment of Harvey’s character was more accurate than the first judge’s. My understanding is that Golden is one of the cases that led the Supreme Court in 2003 to amend 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.”
The lesson of Golden: zealous advocacy never involves treating others with discourtesy.
Lesson IV, Be Civil in All of Your Dealings as an Attorney
With one exception, I am always saddened when an attorney I know is disciplined or suspended from the practice of law, even if the attorney is one I don’t particularly like. In that one exception the attorney’s suspension from the practice of law, and his ultimate indefinite suspension, caused me tremendous relief.
At the time of this attorney’s 2000 suspension I had been litigating what was only my second case against him for exactly ten days and he was making me miserable. I had taken over representation from a previous attorney with the understanding that this opposing counsel believed discovery had not been complied with and that my client was in violation of court order. I immediately contacted this attorney in an attempt to resolve the matter amicably only to be told he was setting depositions immediately and wanting to know my availability eleven days hence. I informed him that his proposed date was not convenient and suggested other dates. I further suggested that giving me time to familiarize myself with the file and address his discovery and compliance demands might help move the case towards resolution. This attorney made no attempt to be accommodating and threatened to schedule the depositions for the inconvenient date despite my request, telling me I needed to file a motion for a protective order if I didn’t like it. He was one of the few attorneys to demand I provide him my order of protection when I informed him I was protected on a date he wanted to notice depositions (I perceive such verification requests as accusing the other attorney of lying).
I recall the next ten days as a flurry of pointless demands, most of which focused upon minutia and kept either of us from narrowing the issues or resolving the dispute. And then–from my perspective, almost miraculously–he was suspended, new counsel was retained, we had a friendly settlement conference and the case settled with my client having to pay me twice the fees that would have been required had his wife’s new counsel been her only counsel but probably one-tenth the fees he would have incurred has this attorney remained her attorney.
There was a 44 month gap between this attorney’s suspension and the disciplinary opinion that indefinitely suspended him–the longest such gap in my recollection. The Supreme Court opinion in In Re Norfleet, 358 S.C. 39, 595 S.E.2d 243 (2004), presents a taste of the behavior that my limited experience had found so frustrating. In addition to being disciplined for trust account violations, failing to pay a court reporter for a transcript, failing to file a notice of appeal, and failing to respond to the Commission on Lawyer Conduct, he was also disciplined for what the Supreme Court labeled “Unprofessional Conduct” (emphasis in original) to wit:
Mary Paige Stroud was enrolled at Hilton Head Elementary School. Gretchen Keefner, a principal at the school, testified Respondent unexpectedly came to the school and requested to view Paige’s school records and visit with her. Keefner testified Respondent did not present any identification and was dressed in casual attire. Keefner further testified Respondent became verbally abusive when she refused him access to her file. Specifically, Keefner testified Respondent threatened to sue her personally and have her fired if she did not turn over the file.
When Respondent became agitated, Keefner requested the presence of her supervisor, Henry Noble. Noble testified Respondent was dressed in “beach attire” and was very angry, loud, and threatening. Noble retrieved Paige’s file for Respondent’s review. Noble testified Respondent became “furious” when he found documents on which Paige had signed her name as “Paige Read” instead of “Paige Stroud.”
Additionally, Sheryl B. Keating, a counselor at Coastal Empire Community Health Center on Hilton Head Island, testified that during two or three conversations with Respondent, he became angry and threatening when Keating refused to provide him with confidential information relating to her counseling sessions with Paige Stroud and her mother.
Despite Respondent’s denial of these allegations, the subpanel determined that clear and convincing evidence weighed in favor of Keefner, Noble, and Keating and that the allegations regarding Respondent’s conduct toward them were proven.
Id., 358 S.C. at 44-45.
There are stories, perhaps apocryphal, that this attorney used to research when opposing attorneys had court scheduled and would attempt to notice depositions or hearings at times these attorneys were already scheduled elsewhere. He would then, allegedly, tell these attorneys they needed to seek protective orders if they wanted his deposition or hearing rescheduled. I have dealt with other attorneys who have been frustratingly zealous, even overzealous, in their representation but only this attorney and one other attorney (who shall remain nameless) ever made me believe that they thought that the path to success was achieved by making the opposing party’s and attorney’s life as miserable and difficult as possible. Before this attorney can petition for reinstatement, he “must show he… has received counseling in appropriate conduct towards clients and others.”
I love practicing law in South Carolina because, compared to other jurisdictions I have practiced in or observed lawyers practicing, the bar here is so collegial. Attorneys will routinely inform opposing attorneys of fixable defects in their paperwork to help move the case forward and help that counsel avoid public embarrassment. The grooming of newly-admitted attorneys is based less on the exploitation of inexpensive labor and more on the desire to introduce new lawyers to standards of professionalism. Attorneys who move here from other states comment on how willing South Carolina lawyers are to send them overflow work without seeking anything in return. Our Court of Appeals judges come down from the bench to shake the hands of appellate counsel at the conclusion of oral argument in a lovely gesture of humility and collegiality.
The desire to protect what is wonderful about the practice of law here requires that attorneys who go out of their way to make everyone miserable need to be culled from the bar. The lesson of Norfleet: be civil in all of your dealings as an attorney.
Lesson V, Pay the Court Reporter Promptly
There are a number of reported disciplinary opinions in which failure to pay a court reporter was part of the basis for the discipline. The case of In the Matter of Marvin P. Jackson, 365 S.C. 176, 617 S.E.2d 123 (2005), is one of the few cases in which that failure was the sole basis of discipline. It appears the sanction for repeat or multiple failures to pay the court report is a public reprimand.
The Supreme Court believes that failure to pay the court reporter violates Rule 1.15 (lawyer shall promptly deliver funds to which a third party is entitled) andRule 8.4(a) (it is professional misconduct for a lawyer to violate the Rules of Professional Conduct) of the Rules of Professional Conduct.
The Supreme Court further believes this conduct violates Rule 7(a)(1) (it shall be ground for discipline for lawyer to violate Rules of Professional Conduct) andRule 7(a)(5) (it shall be ground for discipline for lawyer to engage in conduct tending to bring legal profession into disrepute) of the Rules for Lawyer Disciplinary Enforcement.
The lesson of Jackson: pay the court reporter promptly (and don’t order the transcript or notice the deposition until you have the funds).
Lesson VI, Do the Work You’re Retained to Do
I started this lesson by searching for cases of attorney discipline due to a failure to diligently handle client matters. Most cases involved attorneys with additional unrelated problems, typically misappropriation of client funds or, unsurprisingly, the failure to cooperate with Disciplinary Counsel (unsurprising because attorneys who are undiligent in their work are likely undiligent in other areas). Two more recent cases involved Charleston attorneys I know and like.
In the Matter of Blackmon, 368 S.C. 505, 629 S.E.2d 369 (2006) is the most recent disciplinary opinion to deal solely with diligence towards clients issues for an attorney I don’t know. Given Mr. Blackmon’s repeated discipline due lack of diligence towards clients– See In the Matter of Blackmon, 361 S.C. 641, 606 S.E.2d 777 (2004); In the Matter of Blackmon, 344 S.C. 83, 543 S.E.2d 559 (2001); In the Matter of Blackmon, 309 S.C. 400, 424 S.E.2d 472 (1992); In the Matter of Blackmon, 295 S.C. 333, 368 S.E.2d 465 (1988)–I don’t feel like I am picking on him by highlighting his problems.
South Carolina Rule of Professional Conduct 1.3 reads “A lawyer shall act with reasonable diligence and promptness in representing a client.” Clients rightly expect attorneys to do the work they were retained to do. The Supreme Court rightly disciplines attorneys who fail to live up to this most basic obligation of our profession.
The lack of diligence towards handling client matters is typically coupled with other violations of the Rules of Professional Conduct, specifically Rule 1.1 (lawyer shall provide competent representation to client) and Rule 1.4 (lawyer shall keep client reasonably informed about status of a matter). In Blackmon’s case there were further issues with financial and record keeping diligence, leading him to being found in violation of Rule 1.15 (lawyer shall promptly deliver to client any property client is entitled to receive) and Rule 1.16 (upon termination of representation, lawyer shall surrender property to which client is entitled).
The lesson of Blackmon: do the work you’re retained to do.
Lesson VII: Don’t Lie or Present False Evidence to the Court (or to the Office of Disciplinary Counsel)
Attorneys are frequently referred to in case law as officers of the court. “Since attorneys are officers of the court, their conduct, if dishonest, would constitute fraud on the court.” Chewning v. Ford Motor Co., 354 S.C. 72, 579 S.E.2d 605, 611 (2003). Justice cannot be administered smoothly if lawyers routinely lie to the court or knowingly present the court false evidence. Thus it is no surprise that when an attorney knowingly presents false evidence or suborns false testimony, that attorney will be subject to discipline.
In the Matter of Calhoun, 347 S.C. 444, 556 S.E.2d 392 (2001), is an ideal case to illustrate this. Calhoun altered the court date on his copies of the citations in an effort to convince the magistrate to reopen his traffic citations case, thereby presenting false evidence to the court. In his initial response to the Office of Disciplinary Counsel, Calhoun denied any wrongdoing and suggested that the prosecuting officer had animosity towards him and may have altered the citations. He later acknowledged he altered the court date on the citations, implicitly acknowledging that he had lied to the ODC and unfairly impugned the prosecuting officer’s integrity. Based on Calhoun’s dishonesty to the magistrate and the Office of Disciplinary Counsel, he was suspended from the practice of law for eighteen months.
The Supreme Court found Calhoun had violated the following Rules of Professional Conduct: Rule 3.3 (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal or offer evidence that the lawyer knows to be false); Rule 8.1(b) (failure to respond to a lawful demand for information from a disciplinary authority); Rule 8.4(a) (violating the Rules of Professional Conduct); Rule 8.4(c) (engaging in conduct involving moral turpitude); Rule 8.4(d) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and Rule 8.4(e) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice).
In addition, the Supreme Court found he violated the following Rules for Lawyer Disciplinary Enforcement: Rule 7(a)(1) (violating the Rules of Professional Conduct); Rule 7(a)(3) (willfully violating a valid order of the Commission on Lawyer Conduct); Rule 7(a)(5) (engaging in conduct tending to pollute the administration of justice or bring the legal profession into disrepute); and Rule 7(a)(6) (violating the oath of office taken upon admission to practice law in this state).
The lessons of Calhoun: don’t lie or present false evidence to the court (or to the Office of Disciplinary Counsel).
Lesson VIII: Don’t Let Substance Abuse or Depression Impair Your Ability to Practice
Attorneys are as prone to addiction issues or depression as any other group of humans. In 2010, the South Carolina Supreme Court, at the request of our state bar, promulgated new rules requiring all attorneys and judges to attend one hour of legal ethics/professional responsibility education every three years “devoted exclusively to instruction in substance abuse or mental health issues and the legal profession.” The Supreme Court’s rationale was that “members of the legal profession tend to suffer from higher rates of depression, substance abuse, and suicide than other professions.” The South Carolina Bar has a support group, Lawyers Helping Lawyers, for attorneys suffering from depression or substance abuse.
However when substance abuse overwhelms an attorney’s ability to handle his or her responsibilities, the Supreme Court needs to intervene. Typically, such discipline arises in conjunction with discipline for criminal convictions for drug possession, as it did in In the Matter of Tribert, 343 S.C. 326, 540 S.E.2d 467 (2000) (one year suspension).
However the reduced impulse control that is often a byproduct of substance abuse can lead to discipline for other issues such as inappropriate sexual activities with clients or staff. In the Matter of Yarborough, 337 S.C. 245, 524 S.E.2d 100 (1999) (public reprimand); In the Matter of Nelson, 333 S.C. 498, 510 S.E.2d 718 (1999) (nine month suspension). In has also taken place in conjunction with misappropriation of client funds. In the Matter of Abney, 316 S.C. 182, 447 S.E.2d 848 (1994) (disbarred); In the Matter of Lempesis, 293 S.C. 510, 362 S.E.2d 10 (1987) (disbarred). Alcohol dependency does not excuse an attorney’s flagrant violations of the Rules of Professional Conduct. Id.
Any substance abuse problem that affects an attorney’s ability to adequately represent his or her clients violates Professional Conduct Rule 1.16(a)(2) (lawyer shall withdraw from representation if his physical or mental condition materially impairs the lawyer’s ability to represent the client) and Rule 8.4(e) (lawyer shall not engage in conduct that is prejudicial to administration of justice).
Where an attorney is reinstated to the practice of law after being disbarred or suspended for a period on nine month or more, the Supreme Court may impose any conditions that are reasonably related to the grounds for the lawyer’s original suspension or disbarment. Rule 33(i), South Carolina Rules for Lawyer Disciplinary Enforcement. The conditions may include abstention from the use of drugs or alcohol; active participation in Alcoholics Anonymous or other alcohol or drug rehabilitation program; and monitoring of the lawyer’s compliance with any other orders, such as abstinence from alcohol or drugs, or participation in alcohol or drug rehabilitation programs. Id.
The lesson of Tribert, et al: don’t let drugs or alcohol use impair your ability to practice law.
Lesson IX: Don’t Commit Crimes
As part of the oath lawyers take upon their admission to the South Carolina bar, they swear to “maintain the dignity of the legal system.” Criminal activity by an attorney is inconsistent with this oath.
Attorneys are routinely disciplined for breaking the law, with the sanction bearing some correlation to the seriousness of the crime. See e.g. In the Matter of Anonymous Member of South Carolina Bar, 293 S.C. 329, 360 S.E.2d 322 (1987) (use and possession of marijuana by attorney, while not crime of moral turpitude, constitutes violation of Code of Professional Responsibility [now Rules of Professional Conduct] and Rule of Disciplinary Procedure, and thus warrants private reprimand); In the Matter of Floyd, 328 S.C. 167, 492 S.E.2d 791 (1997) (one year suspension for conviction of possession of heroin); In the Matter of Dunn, 366 S.C. 535, 623 S.E.2d 98 (2005) (twice engaging services of a prostitute and consuming illegal drugs on those occasions, together with subsequent arrest and plea of guilty to possession of marijuana and possession of methamphetamine, warranted indefinite suspension from practice of law); In the Matter of Kenyon, 348 S.C. 233, 559 S.E.2d 590 (2002) (disbarment for attorney convicted of operation of racketeering enterprise, with racketeering acts including wire fraud, money laundering, and murder). Even repeated convictions for serious traffic offenses have given rise to discipline. See In the Matter of Sarratt, 382 S.C. 228, 676 S.E.2d 317 (2009) (four month suspension for repeat driving convictions, along with being charged, but not convicted for unlawful use of telephone and marijuana possession).
The Supreme Court considers an attorney’s criminal act to be violations of Professional Conduct Rule 8.4(a) (violating the Rules of Professional Conduct) and Rule 8.4(b) (committing a criminal act reflecting adversely on his honesty, trustworthiness, or fitness as a lawyer). For many crimes, the activity also violates Professional Conduct Rule 8.4(c) (engaging in conduct involving moral turpitude) and Rule 8.4(d) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).
Criminal acts further violate the Lawyer Disciplinary Enforcement Rule 7(a)(1)(violating the Rules of Professional Conduct), Rule 7(a)(6) (violating the oath of office taken upon admission to practice law in this state) and Rule 7(a)(5)(engaging in conduct tending to bring the legal profession into disrepute and demonstrating an unfitness to practice law). For many crimes the activity also violates Lawyer Disciplinary Enforcement Rule 7(a)(4) (being convicted of serious crimes and crimes of moral turpitude.
To be reinstated to the practice of law after being suspended or disbarred “for conduct resulting in a criminal conviction and sentence, the lawyer must also successfully complete all conditions of the sentence, including, but not limited to, any period of probation or parole.” Rule 32 and 33(f)(10), South Carolina Rules for Lawyer Disciplinary Enforcement.
The lesson of Anonymous et al: lawyers should not engage in criminal activity.
Lesson X: Don’t Start a Sexual Relationship with Your Client (or Your Client’s Spouse)
Much harm can come to an attorney who has a sexual relationship with a client. South Carolina Rule of Professional Conduct 1.8(m) states:
A lawyer shall not have sexual relations with a client when the client is in a vulnerable condition or is otherwise subject to the control or undue influence of the lawyer, when such relations could have a harmful or prejudicial effect upon the interests of the client, or when sexual relations might adversely effect the lawyer’s representation of the client.
It is helpful, indeed required, for an attorney to care about the client’s problem. As Comment One to Rule of Professional Conduct 1.3 notes “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.” However, the practice of law requires a certain level of professional detachment. When an attorney takes on the emotions of the client, the reasoned advice and guidance that law requires becomes difficult, if not impossible. The emotions that are hopefully part of a sexual relationship can cloud judgment; allowing one’s judgment to be clouded when representing a client is dangerous to both the client and the attorney. That is why the law heavily discourages attorneys from engaging in sexual relations with a client unless the sexual relationship predates the attorney-client relationship. The few times my wife has needed counsel I have referred her to other attorneys because the emotions of our own marriage can make it difficult for me to give, or for my wife to receive, legal advice on a purely rational level.
In In the Matter of Hoffmeyer, 376 S.C. 221, 656 S.E.2d 376 (2008), despite self-reporting to the office of Disciplinary Counsel, and despite the hearing panel recommending only a public reprimand, the Supreme Court found the following conduct demonstrated an unfitness to practice law, warranting a nine month suspension: the attorney engaged in a sexual relationship with client; belittled client’s husband during a confrontation at attorney’s house by using information he obtained through his representation of client; sewed up client’s self-inflicted wrist wound to avoid use of the incident in client’s child custody dispute; obtained a waiver of liability for an individual’s injuries, which were caused by client at attorney’s house; failed to inform client that she should seek independent legal advice; and failed to inform the family court of client’s problems with substance abuse and eating disorders. See also, In the Matter of Keitt, 321 S.C. 373, 468 S.E.2d 875 (1996) (ninety day suspension for engaging in a sexual relationship with a client and subsequently making false statements to a family court judge when questioned about that relationship).
In 2010 the Supreme Court issued a private reprimand in the case of In the Matter of Anonymous Member of the SC Bar, 389 S.C. 462, 699 S.E.2d 693 (2010), to an attorney for having sexual relations with his client’s spouse. It issued its opinion as a warning to our bar that “a sexual relationship with the spouse of a current client is a per se violation of South Carolina Professional Conduct Rule 1.7 [the professional conduct rule dealing with conflicts of interest with current clients], as it creates the significant risk that the representation of the client will be limited by the personal interests of the attorney.” (emphasis in original). In Anonymous’ case that risk actually transpired, as he was fired after the client learned of the affair.
Lesson XI: Don’t Let Your Paralegal Practice Law
It took mere months of legal practice for me to determine that the time I spent managing a paralegal was taking away from time I could spend creatively thinking about how to solve my clients’ problems. While I didn’t find the trade-off worthwhile, for most attorneys the gains in efficiency from having a paralegal handle forms and paperwork makes up for the time spent managing staff. In certain paper intensive areas of law paralegals are almost mandatory.
The temptation to allow the paralegal to go beyond paperwork preparation to actually handling legal work, especially when the attorney is suddenly called away, seemed to strike a number of real estate attorneys earlier this decade. Many of these attorneys had other disciplinary problems in conjunction with allowing the paralegal to handle closings unsupervised: failing to file paperwork; failing to properly disburse funds; falsifying witness signatures on documents or having witness signatures “notarized” without the notary witnessing the signature.
However, In the Matter of Harrell, 365 S.C. 313, 617 S.E.2d 368 (2005) is an example of discipline solely for failing to properly supervise one’s paralegal when handling real estate closings. This behavior merited a public reprimand for violations of South Carolina Professional Conduct Rule 5.3 (lawyer having direct supervisory authority over a nonlawyer shall make reasonable efforts to ensure the person’s conduct is compatible with the professional obligation of the lawyer); Rule 5.5 (lawyer shall not assist a person in the performance of activity which constitutes the unauthorized practice of law); Rule 8.4(a) (it is professional misconduct for a lawyer to violate the Rules of Professional Conduct); and Rule 8.4(d) (it is professional misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).
The lesson of Harrell: don’t let your paralegal practice law.
Lesson XII: Don’t Cut Corners on the Notary Rules
It’s pretty hard to be a litigator in South Carolina without also being a notary. There’s affidavits and other documents that are required to be witnessed and executed before a notary. There’s interrogatories and (sometimes) pleadings to verify. If one practices family law, financial declarations need to be verified. I probably notarize ten or more documents a week.
A document that has been signed and sworn before a notary is subject to perjury penalties if it wilfully contains false, misleading, or incomplete information. See S.C. Code Ann. §16-9-10. Thus, certain formalities must be observed. While litigants and witnesses often treat the notarization process as inconsequential, it isn’t meant to be. The witness needs to personally appear before the notary and verify his or her identity before the notary can verify the document.
It can be very inconvenient to follow proper notary procedures. Often attorneys are under a tight time deadline and it can be difficult to get the witness and a notary together in the same location. Other times a document needs to be verified before it can be filed or served and the verification cannot take place before the document is satisfactorily completed. Witnesses will sometimes ask if they can leave a signed document with the attorney and have the notary “witness” it later. Clients will sometimes ask if they can provide their executed “verification” prior to the document that’s being verified actually being completed. Claims and defenses can be weakened, and it’s possible for a claim to actually be time-barred, because obeying the notarization formalities delays the execution of paperwork. There’s clearly the temptation to cut corners on the notarization requirements.
The Supreme Court opinion in In the Matter of Fred Wallace Woods, Jr. 390 S.C. 446, 702 S.E.2d 562 (2010) highlights the risks of such corner cutting. Mr. Woods was publicly reprimanded for allowing his staff to notarize affidavits when the witnesses were not present and, for two of the affidavits, when the purported witnesses had not actually signed the documents. The Supreme Court found this violated South Carolina Rules of Professional Conduct Rule 3.3(a) (lawyer shall not knowingly offer false evidence) and Rule 5.3 (lawyer shall make reasonable efforts to ensure that non-lawyer employee’s conduct is compatible with professional obligations of lawyer; lawyer shall be responsible for conduct of non-lawyer employee if lawyer knows of conduct at time when its consequences can be avoided or mitigated and fails to take reasonable action).
In addition to his public reprimand, Mr. Woods was also required to read, and have each of his employees read, the South Carolina Notary Public Manualpublished by the South Carolina Secretary of State. Actually, it’s not a bad idea of any attorney who’s also a notary or employs notaries to occasionally reread that manual.
The lesson of Woods: know and follow (and make certain your staff follows) the proper procedures regarding the notarization of documents.
Lesson XIII: Keep Track of Your Trust Account
Every South Carolina attorney or law firm that will be handling client or third-party funds is required to have a an IOLTA account (Interest on Lawyer Trust Accounts). See South Carolina Appellate Court Rule 412. South Carolina Appellate Court Rule 417 details the financial record keeping that the Supreme Court requires for attorneys. Much of this rule relates to record keeping regarding the IOLTA account. The financial institutions maintaining IOLTA accounts are required to report to the Office of Disciplinary Counsel when an IOLTA account is overdrawn or a check on such accounts dishonored.
Misuse of trust account funds gets more attorneys disbarred than any other misconduct. However, even improper management of the trust account can lead to discipline. In In the Matter of Joseph Francis Runey, 376 S.C. 536, 657 S.E.2d 779 (2008), the attorney was publicly reprimanded after his financial institution reported ten IOLTA account checks were presented for payment against insufficient funds. The attorney admitted he had not been consistently performing reconciliations on his IOLTA account in a timely manner and, further, that he failed to verify that deposits had been credited to his account prior to disbursement.
This conduct violated South Carolina Rule of Professional Conduct 1.15 (lawyer shall not disburse funds from an account containing the funds of more than one client or third person unless the funds to be disbursed have been deposited in the account and are collected) and further violated Rule 417, SCACR.
The lesson of Runey: keep track of your trust account.
Lesson XIV: Don’t Use Purloined Evidence
Had I been a member of the South Carolina Supreme Court in June 2008, I would have voted for In Re Wood, 378 S.C. 632, 663 S.E.2d 496 (2008) to be In Re an Anonymous Member of the Bar. The lesson of Wood is important (which is why I would have voted to publish the opinion) but it also has a there but for the grace of God go I quality, and I would not have singled out an attorney to teach this lesson.
The full story as I understand it: Wood was representing Wife in a marital dissolution case in which Husband had moved out of the marital home. Mail for Husband from a financial institution was delivered to the home and Wife doesn’t recognize what this mail could be: she isn’t aware of Husband having any business with this financial institution. She brings this mail to Wood at the emergency hearing and Wood opens it. They discover that Husband has an account he has kept secret from Wife. Wood immediately informs the opposing attorney of what he has learned and allows opposing counsel to inspect the records. He provides these records to the judge at the hearing; meanwhile Husband’s financial declaration fails to list this asset. The hearing judge seems more upset with the attorney who opened Husband’s mail than the Husband who deliberately omitted this account on his financial declaration and reports attorney to the Office of Disciplinary Counsel.
The Supreme Court found that this attorney’s actions violated South Carolina Professional Conduct Rule 4.4 (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) and Rule 8.4 (it is professional misconduct for a lawyer to violate the Rules of Professional Conduct, to engage in conduct involving dishonesty or to engage in conduct prejudicial to the administration of justice). I am not sure I agree with this reading of the rules. The mail Wood opened was not, in my mind “ inadvertently sent” and I am unclear how his acts involved “dishonesty” or “conduct prejudicial to the administration of justice.” However the Supreme Court makes the rules and, even if one doesn’t agree with their analysis, one ignores these rules at great peril.
It is unclear from Wood whether the public reprimand was for opening Husband’s mail without his consent or whether it was also for using the contents of this purloined mail in court. In numerous marriages one spouse opens the household bills and bank statements and, prior to this opinion, it would not have occurred to me that it would be a violation of the Rules of Professional Conduct to look at financial records of the other party that my client had obtained by opening the family mail. Yet a broad reading of Wood is that any use of this purloined mail, even if he did not open it, was a violation of the Rules of Professional Conduct. Thus, since Wood, I have not used or looked at the opposing party’s records unless my client can show that these records were not obtained by the client opening the other party’s mail or hacking into the other party’s account.
My great sympathy for Wood is that his actions were solely an attempt to be a zealous advocate for his client. In opening Husband’s mail, he was simply trying to maximize the results for his client at the hearing by making sure Husband was being honest in his financial disclosure. Every other circumstance I can recall in which an attorney has been disciplined for being overly zealous in his or her representation it has been because that attorney suborned false testimony or altered evidence. Here Wood was simply trying to show the other party was presenting false evidence.
The lesson of Wood: don’t use, or even look at, records of the other party that your client brings you before determining whether your client legally possesses these records.
Lesson XV: Report Substantial Misconduct
Rule 8.3 of the Rules of Professional Conduct creates a duty to report professional misconduct:
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s honesty, trustworthiness, or fitness for office in other respects shall inform the appropriate authority.
The comments to this rule both help explain the need for it and create an important limitation upon it. Comment one notes:
Self regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.
Comment three creates an important limitation upon the duty to report misconduct:
If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.
Many times when I have believed that another attorney may have violated the Rules of Professional Conduct I have talked to that attorney about my concern and have almost always received a satisfactory response. Since I did not believe the conduct raised “a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” I did not feel the need to report the conduct. The only time I have reported an attorney for misconduct was when that attorney engaged in a pattern of misconduct in which I repeatedly suggested his behavior was not appropriate and he continued to engage in it.
Similarly there have been times when another attorney has had problems with my conduct and I have always been relieved rather than angered when that attorney took the time to note his or her concern. More than once I have changed or corrected my actions based on that attorney’s counsel. There are a few attorneys out there who threaten to report other attorneys to the Office of Disciplinary Counsel when they do not like the tactics that attorney is using. Such behavior is not only reprehensible, it is unethical.
There are two reported cases on this issue, though in neither case was the failure to report misconduct the sole basis of discipline.
In In re Bowden, 364 S.C. 310, 613 S.E.2d 367 (2005), Bowden learned that his supervising attorney was inflating government recording fees on HUD-1 settlement statements. Bowden questioned his supervisor about the practice, who assured him that the practice was ethical and legal. Further his supervising attorney was mishandling client funds, though Bowden was not aware of this.
The Supreme Court publicly reprimanded Bowden, finding he violated South Carolina Professional Conduct Rule 5.1 (lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if, with knowledge of the specific conduct, the lawyer ratifies the conduct involved); Rule 5.2 (lawyer is bound by the Rules of Professional Conduct notwithstanding lawyer acts at the direction of another person); and Rule 8.3 (lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as that lawyer’s honesty, integrity, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority). In addition, the court found he failed to comply with Rule 417, SCACR (addressing financial recordkeeping).
I am unclear why the safe harbor of Rule 5.2(b) (“A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.”) didn’t protect Bowden from discipline. It would have been helpful for the Supreme Court to explain why he couldn’t rely upon his supervising attorney informing him that the conduct “was ethical and legal” or how he could be responsible for his supervising attorney mishandling client funds.
In In Re Galmore, 340 S.C. 46, 530 S.E.2d 378 (2000), Galmore was publicly reprimanded, in part, for failing to report to the Commission on Lawyer Conduct, that a suspended attorney had offered to assist him handling a case Galmore had taken over from the suspended attorney.
Lesson XVI: Don’t Misuse Influence
The powers that lawyers have are substantial. We can use our training to influence policy in all three branches of government. We can use our training to help individuals and companies smooth their interactions with government. We are appointed to boards at much greater rates than non-lawyers, and can use that position to influence the direction of government agencies, charities, non-profits, and corporations.
Our status as lawyers give us connections that the general public does not have. The temptation is to use that power and those connections for our own immediate advantage or for the advantage of our friends and family. Some attorneys, when being pulled over as part of a traffic stop, immediately let the officer know they are a lawyer: the reason they do this is their belief that their status as attorneys will cause the police officer to treat them deferentially.
In In the Matter of William F. “Troup” Partridge, 374 S.C. 179, 648 S.E.2d 590 (2007) an attorney was suspended from the practice of law for one year for trying to help a family friend fix a ticket, and engaging in a cover up when the Office of Disciplinary Counsel began investigating. Part of disciplinary issue was that the attorney used his status as an Assistant Attorney General and former law clerk of a Circuit Court Judge to fix the ticket. He went to that Circuit Court judge to get an Order and Rule to Show Cause issued against a local magistrate judge in an attempt to force (intimidate?) that magistrate judge into fixing the friend’s ticket. He allegedly implied to the local sheriff that service of this Rule to Show Cause was being requested by the Attorney General’s office. Someone used his facsimile lines from the Attorney General’s office to issue this paperwork, possibly in an attempt to make it look like the Attorney General’s office was behind the attempt to “correct the ticket.” Information on this facsimile regarding the identity and phone number of who sent this facsimile was obliterated by “white out.”
While this behavior violated numerous Rules of Professional Conduct, for the purpose of this blog, the violations from his misuse of these connections wereRule 1.11(d) (lawyer who serves as public employee shall not violate Rule 1.7, RPC) and Rule 3.5(a) (lawyer shall not seek to influence a judge by means prohibited by law).
The lesson of Partridge: when dealing with the court, don’t use your connections or position to gain advantage for yourself, your family, or your friends.
Lesson XVII: Don’t Steal from Your Trust Account
How much money is in your trust account? Would you sell your law license for it?
Theft of client or third-party funds from one’s trust account (as opposed to simple mismanagement of one’s trust account) is, by far, the most common method that attorneys end up disbarred. A Westlaw search of South Carolina case law for “disbar! /s trust” locates 124 cases as of the end of 2010, the most recent being In re Crews, 389 S.C. 322, 698 S.E.2d 785 (2010).
In those rare cases in which the Supreme Court merely indefinitely suspends an attorney for misappropriating trust account funds, the Office of Disciplinary Counsel often seeks disbarment. See e.g., In the Matter of Johnson, 380 S.C. 76, 668 S.E.2d 416 (2008). What an odd relief it must be to only receive an indefinite suspension.
Even if the prospect of utterly trashing my reputation and the likely criminal consequences of stealing from my clients didn’t deter me, there has never enough money in my trust account to make me willing to give up my law license for a year, let alone for life. Each time I read yet another opinion in which an attorney has been disbarred for misappropriating trust funds, I am astonished at how cheaply that attorney valued his or her law license.
The lesson of Crews and his 123 fellow former attorneys: don’t steal from your trust account.
Lesson XVIII: 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 audience, 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 last opinion to be analyzed in this series 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 ofRule 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.