Let the deluge begin

Posted Monday, March 7th, 2011 by Gregory Forman
Filed under Of Interest to Family Law Attorneys, Rules of Professional (Lawyer) Conduct, South Carolina Appellate Decisions, South Carolina Specific

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.

7 thoughts on Let the deluge begin

  1. Jay Elliott says:

    Oh, I think a lawyer would have to go a long way to rival what Gary White did in this case.

  2. It would be interesting to know what Mr. White was talking about in his referenced May 6, 2009 letter where he said, “The letter is false. You notice McIver has no Order.”

    What could he have possibly meant by “no Order”?

    1. Lilly,

      You could read the actual opinion. Evidently Mr. White’s clients and the Town of Atlantic Beach had been involved in previous litigation in which Mr. White’s clients appear to have prevailed. The issue of the “Order” was irrelevant to Mr. White’s discipline.

  3. Is this the actual opinion (?):

    Christian Methodist Episcopal Church v. Montgomery, Dist. Court, D. South Carolina 2007
    ORDER (Granting PARTIAL Summary Judgment)
    The defendants are accordingly entitled to summary judgment as to the Second Cause of Action dealing with RLUIPA. However, the Court DENIES the motion for summary judgment as to the plaintiffs’ First Cause of Action as to the alleged unconstitutional conduct of the defendants under Section 1983 and the First Amendment. The individual plaintiffs are dismissed as parties.
    Of course I realize the issue of the “Order” was irrelevant to Mr. White’s discipline. Drat-it-all, that doesn’t stop my darned curiosity. I just hate it when that hits me.

  4. Dusty Rhoades says:

    Greg, I argued, on Sept. 14, last year, before the SC Sup. Ct. that the civility oath is unconstitutionally vague and therefore should be void.One of the points I argued was, as an illustration of the subjective definition and selective enforcement, was that the Ct. two weeks earlier(prior to oral argument) rendered a decision stating it was a per se conflict of interest for an attorney to have a sexual affair with the spouse of the attorney’s client in a domestic case (also the opposing party). After pointing out that the court implicitly did not find that atty-opposing party relationship to be uncivil based on the Court’s not addressing the issue, none of the justices had any followup except Justice Pleicones, who laughed and added he doubted his wife would consider such a relationship to be polite or civil. The White case only argued the issue of the oath being a violation of freedom of speech/religion. The case I’m defending has carefully challenged the oath on the vagueness basis. The issue has not been decided in any state yet. The underlying facts of the case involve civility of two private, not public, emails between two attorneys in a custody case. I am not one of those attorneys. I represent one of those attorneys. The case is similar in analysis to that of the recent SC Supreme Ct decision regarding the enforcement of a law against a Greenville street preacher that held the law was unconstitutionally vague. By the way, one of the justices, at oral argument, specifically questioned ODC counsel about the concern that this case’s decision would likely open the flood gates to give cause for any one called a “sonofabitch” (his word and illustration) by an attorney in a family matter to then be formally complained about. The Court stated at the oral argument that it recognized this case would set precedent. If the ruling isn’t to find the unconstitutionality of the oath, I intend to petition the U. S. Supreme Court to hear the matter.

  5. MJ Goodwin says:

    What if opposing counsel looks at me, in court, in a pre-trial conference with the judge, GAL, court reporter and deputy present and says in a hateful tone: “you are a liar.” (I was not lying).

  6. Dusty Rhoades says:

    That is exactly why the subjective selectively applied rule should be held unconstitutional. There is no definable standard for determining whether something is polite/civil except the personal individual opinion of the person deciding the matter.

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