Today 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.”

So every three years one hour of my life will be spent listening to someone explain how and why I should avoid “depression, substance abuse, and suicide.”  How depressing.  I think I need a drink.

Having had one more potential client show up today with a stack of disorganized paperwork, I finally decided to publish a memo I had drafted years ago: Suggestions for Organizing Family Court Files.  I hope it’s useful.

A colleague of mine has asked me to blog on when a Rule 11 affirmation is required for a family court motion.  The requirement for such affirmations is set forth in South Carolina Rule of Civil Procedure 11(a):

All motions filed shall contain an affirmation that the movant’s counsel prior to filing the motion has communicated, orally or in writing, with opposing counsel and has attempted in good faith to resolve the matter contained in the motion, unless the movant’s counsel certifies that consultation would serve no useful purpose, or could not be timely held.

That same subsection notes when such affirmations are not required:

There is no duty of consultation on motions to dismiss, for summary judgment, for new trial, or judgment NOV, or on motions in Family Court for temporary relief pursuant to Family Court Rule 21, or in real estate foreclosure cases, or with pro se litigants.

Under South Carolina Family Court Rule 2(a) motions for judgment NOV (Rule 50, SCRCP) or summary judgment (Rule 56, SCRCP) are not allowed in family court.  Further, there is no requirement of a Rule 11 affirmation in a motion to dismiss, for a new trial or when the motion is brought against a pro se litigant.  There is also no requirement of a Rule 11 affirmation on motions in family court for temporary relief pursuant to Family Court Rule 21.  Some attorneys treat all family court motions as coming under the purview of Family Court Rule 21 and never file motion affirmations.  However not all family court motions are such motions.

Numerous motions filed in family court do not qualify as motions for temporary relief. Certain motions that generally occur only in family court are not temporary motions. Motions seeking retroactive relief (such as retroactive alimony or child support) are not temporary motions. Motions to appoint or relieve a guardian ad litem, for drug testing, or for psychological evaluations are not temporary motions. A basic analysis is that motions that seek what the party ultimately seeks at trial but on a temporary basis (such as custody, visitation, support, attorney’s fees and restraints) are motions for temporary relief whereas motions seeking relief that cannot be modified or adjusted at trial or affect procedural and not substantive rights are not motions for temporary relief.

Some other family court motions are motions that might also typically be filed in circuit court but do not require a Rule 11 affirmation, such as motions to dismiss brought pursuant to Rule 12(b), SCRCP and motions to modify or vacate final orders brought pursuant to Rules 52, 59 and 60, SCRCP.  However, other motions that are common to both family court and circuit court require affirmations including: motions to make pleadings more definite and certain brought under Rule 12(e), SCRCP;  motions to strike brought under Rule 12(f), SCRCP; discovery motions, including motions for a protective order, motions to compel, and motions to quash a subpoena brought pursuant to Rules 26, 37 or 45, SCRCP; and motions involving the modification of pleadings brought pursuant to Rule 15, SCRCP.

I once had a motion to compel continued for failure to include a Rule 11 affirmation.  I felt the attorney complaining about the lack of a Rule 11 affirmation had sandbagged me so I warn opposing counsels who fail to include the affirmation if I note their motion is lacking the required affirmation.  However, when I do not believe an attorney could make this affirmation for the motion he or she filed, and the rules required it, I believe it appropriate to make issue of the lack of affirmation when seeking or defending an attorney fee request.

Condonation (a legal term meaning “conditional forgiveness”) is a powerful defense to a fault divorce in South Carolina.  If proven, condonation revives an alimony claim despite a spouse’s adultery and notwithstanding South Carolina’s statutory bar [S.C. Code Ann. § 20-3-130(A)] to awarding alimony to an adulterous spouse.  See, Grubbs v. Grubbs, 272 S.C. 138, 140, 249 S.E.2d 747, 749 (1978).

The definitions of condonation are confusing but basically condonation requires two elements: knowledge of the spouse’s improper behavior and continued cohabitation and marital intimacies after obtaining that knowledge.

As a defense in a divorce action, condonation means forgiveness, express or implied, by one spouse for a breach of marital duty by the other.  More specifically, it is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offender shall thereafter treat the forgiving party with conjugal kindness. To establish condonation, there generally must be proof of reconciliation, which implies normal cohabitation of the husband and wife in the family home.

Nemeth v. Nemeth, 325 S.C. 480, 481 S.E.2d 181, 185 (Ct.App. 1997) (citations omitted)

One of the essential elements of condonation is the forgiving spouse’s knowledge, Either (sic) actual or presumed, of the offense alleged to have been forgiven or condoned… Condonation may be presumed from cohabitation; and lapse of time, or a continuance of marital cohabitation with knowledge of the offense, raises a presumption of condonation.

Grubbs, supra.  In Grubbs the Supreme Court found condonation despite husband’s denials of knowledge regarding his wife’s past adultery based on ten years of continued cohabitation after her adultery occurred.

The concept of “presumed knowledge” of a spouse’s adultery based on continuous cohabitation is one of numerous ways the law of condonation is unclear in South Carolina.  How long do spouses have to live together after one spouse’s adultery for this knowledge to be presumed? How long do the spouses need to resume cohabitation for the adultery to be condoned?  How much knowledge of the fault is required for it to be condoned? Does the condoning spouse need to know about all the adulterous relationships for adultery to be condoned or just the most recent one? [In two unpublished opinions in the case of Powell v. Powell, the Court of Appeals indicated full knowledge was required but the Supreme Court then said full knowledge wasn’t the correct standard; because both opinions are unpublished they cannot be cited as the “law” of condonation and neither opinion cited any authority to support its view of the full knowledge issue] Because these issues are unsettled in South Carolina law, the general public’s beliefs surrounding condonation are often inaccurate.

Which leads to the interesting case of McCrosson v. Tanenbaum, 375 S.C. 225, 652 S.E.2d 73 (Ct.App.2007), a’ffd as modified 383 S.C. 150, 679 S.E.2d 172 (2009).  In that case Ms. Tanenbaum apparently attempted to create condonation of her adultery by, in the midst of their divorce litigation, going over to her husband’s house, confessing to some, but not all, of her adultery, having sex, staying the weekend, and then leaving, never to return.  Dr. McCrosson testified that after the parties had disrobed and he was about to engage in intercourse, his wife giggled and said, “I guess this takes care of Max [one of her paramours].”  Ms. Tanenbaum denies this.  The tone of the Court of Appeals opinion paints Dr. McCrosson as a spouse who remained in love with his wife throughout the separation, desiring of reconciliation almost to the end.  In contrast, it paints Ms. Tanenbaum as a schemer, lying about her numerous affairs while trying to avoid the consequences of these affairs.  If the Court of Appeals’ portrayal is true, Ms. Tanenbaum’s attempted “reconciliation” must have been emotionally wrenching for her husband.

Because Ms. Tanenbaum engaged in other affairs, the Court of Appeals never needed to reach the issue of whether this one sexual encounter constituted condonation.  One hears rumors of attorneys counseling their adulterous clients to go back and have sex with their spouses once during the marital litigation to restore their entitlement to alimony.  Such rumors are always secondhand; that is, no one I’ve talked to has ever actually heard an attorney admitting to providing such counsel, they simply hear stories that such counsel is being provided.  If these rumors are true it says something hugely repellant about any attorneys giving this advice (and any clients who actually follow it).  I can’t believe that such actions would constitute condonation–there’s no intent to resume cohabitation–but given the lack of clarity in South Carolina’s condonation law one cannot be sure.  And, given some human beings’ capacity for greed and venality, until the law is absolutely clear, such shamelessly-brazen bump-’n-run sex is likely to remain part of our culture.

Last week Thomas L. Friedman, three-time Pulitzer Prize winner and New York Times columnist, wrote a piece describing the current recession as largely caused by “an education breakdown on Main Street.”  He singled out the legal profession, noting:

A Washington lawyer friend recently told me about layoffs at his firm. I asked him who was getting axed. He said it was interesting: lawyers who were used to just showing up and having work handed to them were the first to go because with the bursting of the credit bubble, that flow of work just isn’t there. But those who have the ability to imagine new services, new opportunities and new ways to recruit work were being retained. They are the new untouchables.

Before concluding:

Just being an average accountant, lawyer, contractor or assembly-line worker is not the ticket it used to be. As Daniel Pink, the author of “A Whole New Mind,” puts it: In a world in which more and more average work can be done by a computer, robot or talented foreigner faster, cheaper “and just as well,” vanilla doesn’t cut it anymore. It’s all about what chocolate sauce, whipped cream and cherry you can put on top. So our schools have a doubly hard task now — not just improving reading, writing and arithmetic but entrepreneurship, innovation and creativity.

Entrepreneurship is not something that is taught in professional school (other than business school) but as someone who has been self-employed for all but the first two years of my eighteen-year legal career, and as the spouse of a professional who has had frequent bouts of underemployment/self-employment, I regard it as an extremely valuable skill and mindset that our professional schools should be teaching.  Thinking about one’s profession as not just a service being offered but as a relationship with customers that need to be “satisfied,” learning how to “market” one’s professional skills, and recognizing that creativity as well as knowledge is a vital component of professional practice are attributes that frequently distinguish the “successful” professional from the “unsuccessful” one.  Professional schools assume that such skills will be developed through on-the-job training but this is an often-incorrect assumption.

Friday, the South Carolina Judicial Department posted the results of the July 2009 bar examination, with three hundred and seven Juris Doctorates passing the examination, one hundred and seven from the local law school.  After the November 16, 2009 swearing-in ceremony, these newly minted attorneys will join our profession, many in the Charleston area, all seeking fulfilling and remunerative employment.

My experiences from both formally and informally mentoring their recently admitted colleagues is that many will need to develop their own business to earn a living or develop professionally.  I empathize with their plight: forced to be entrepreneurs when they have only been trained to be professionals.  However, the proper response isn’t to divorce professionalism from entrepreneurship but to make entrepreneurship part of professional training.

Just this month, one of my local family law colleagues was placed on interim suspension by the South Carolina Supreme Court.  Not only did this attorney handle the closing of my house, he is one of a handful of attorneys to flat-out smoke me in a family court trial in the past half decade.  I both like and respect him and am saddened to read about this suspension.  He joins two other local family law colleagues currently on interim suspension.  Yet another local family court colleague, Marvin Lee Robertson, Jr., who was on interim suspension, was recently disbarred.

Attorneys rarely get an interim suspension unless they will ultimately be suspended for nine months or more or disbarred.  When attorneys suffer such discipline, it’s typically because they have committed a serious crime, allowed a substance abuse or mental health issue to overwhelm them, or have stolen from their trust account [money controlled by the attorney but typically belonging to clients or third-parties].  Rarely is an attorney placed on interim suspension for legal malfeasance or ornery disposition, as happened to local family court colleague Daniel F. Norfleet, before he was ultimately placed on indefinite suspension.  When the Supreme Court puts an attorney on interim suspension due to that attorney being indicted for a serious crime, the interim suspension order notes this.

During the period between the interim suspension and the ultimate resolution of the attorney discipline my morbid curiosity reflects upon what my colleague could have done that put his or her license at risk.  When no criminal charges are listed on the interim suspension order, typically my suspicion is trust account mismanagement: that is the attorney has misappropriated funds in his or her trust account [not to imply that any of the attorneys on interim suspension listed above had trust account violations or are going to suffer long-term suspension or disbarment].  That was the reason Marvin Lee Robertson was given an interim suspension and ultimately disbarred.

Ask most established attorneys what they did for a living before they became a lawyer and the answer is characteristically a variation on “something a lot less prestigious and interesting.” Ask those same attorneys how much money they had previously made and the answer almost always is “a whole lot less money.”  While I can comprehend how an attorney might risk his or her license over substance abuse or criminal issues–folks committing serious crimes or abusing substances have greater concerns than their law license–I have never understood attorneys who risk their license to misappropriate trust account funds.  Even if concerns over personal integrity meant nothing to me, worrying about what I might do for my livelihood the day after that interim suspension came down is a strong deterrent to any temptation that might cause me to lose that license.

In December 2008, the South Carolina Supreme Court reestablished a second pilot mentoring program, in which all qualifying lawyers admitted to the Bar between March 1, 2009, and January 1, 2011 are required to have a mentor.  Since I attribute much of my professional success to the numerous informal mentors early in my career [kudos to The Honorable James Bridges, The Honorable Wayne  M. Creech, Nicholas Clekis, M. Dawes Cooke, Susan Dunn, Conrad Falkiewicz, William Hamilton, III, Sally King-Gilreath, Robert Polk and John Taylor] I gladly volunteered for this program.

The saying “by your students you’ll be taught,” though trite, remains true.  Simply going over basic ideas with attorneys to whom these ideas are not obvious is a wonderful learning experience.   Assuming the program is extended past 2011, I might retire having mentored 30-40 attorneys.

The program needs more volunteers:  the goal is to have one mentee per mentor but I was mentoring three newly-licensed attorney until one of my mentees was hired by a Rock Hill firm.   I would urge my fellow South Carolina attorneys to volunteer for this program.

Under South Carolina Appellate Court Rule 608, most South Carolina attorneys are required to be on either the criminal or civil court appointment list, in which they are required to represent indigents.  Most attorneys, myself included, are on the civil appointment list, which means we are appointed to represent defendants in post-conviction relief matters, Department of Social Services abuse and neglect cases, and termination of parental rights cases.  Attorneys can be appointed to handle up to ten of these cases per year.  While the South Carolina Commission on Indigent Defense has been reimbursing attorneys at $40.00 to $50.00 per hour for their time in these cases, this is substantially below most attorneys’ hourly rates: for some attorneys this rate is not enough to cover their overhead.

Thus, some South Carolina attorneys have taken to paying other attorneys a flat rate to handle their court appointments and some attorney are earning a substantial portion of their income handling these appointments on behalf of other attorneys.  Whether the Supreme Court should allow this to occur is an issue that appears never to have been considered; I consider the matter extremely problematic.

There are two ways of looking at such court appointments.  One way is to see them as a partial fulfillment of one part of the oath all lawyers take upon admission to the South Carolina bar: “I will assist the defenseless or oppressed by ensuring that justice is available to all citizens …” If these court appointments are seen as fulfillment of this part of the oath, then an attorney handling court appointments does so out of a sense of professional duty which the practice of law requires.  However if this is the justification for requiring attorneys to handle court appointments, then allowing attorneys to purchase their way out of these court appointments vitiates that justification and the practice should be prohibited.

Another way to see these court appointments is part of an unfunded mandate promulgated by the South Carolina legislature.  If this is the reason, then buying and selling these appointments is perfectly legitimate.  What is illegitimate is the South Carolina public, acting through its legislature, requiring one segment of the population (attorneys) to provide free services, especially when that segment of the population has no choice for whom they will provide these services.  Our state residents have no more right to ask lawyers to provide their services to indigents than it does to ask our barbers to provide these indigents free haircuts.

During the Civil War the North allowed conscripts to purchase a substitute to fight on their behalf.  This allowed well-off men to avoid military duty while creating a military filled with recent immigrants and the less well-to-do.  This ability to purchase one’s way out of what was justified as a public obligation (the obligation to fight to defend the Union) was tremendously unpopular and considered one of the causes of the draft riots in New York City.

Either defense of indigents is a professional obligation–and attorneys should not be able to purchase their way of out this obligation–or it is not a public obligation–and the taxpayers should pay for the defense of these indigents.  To paraphrase the epitaph used to describe substitute conscription in the Civil War, the current system is a rich lawyers war and a poor lawyers fight.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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