The Curious Case of Benjamin F. Hunt: Origins of Lawyer Civility Regulation in South Carolina, 0513 SCBJ, SC Lawyer, May 2013, #4

Author:Barbara M. Seymour.
 
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The Curious Case of Benjamin F. Hunt: Origins of Lawyer Civility Regulation in South Carolina

Vol. 24 Issue 6 Pg. 28

South Carolina BAR Journal

May 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Barbara M. Seymour.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0You know it's going to be a bad day when the judge characterizes your conduct in court as abusive, violent, offensive and disorderly. That is how Judge Frost described the statements of Charleston attorney Benjamin F. Hunt when he sanctioned Hunt for rude and uncivil behavior at a motion hearing following an order of nonsuit in a civil case. The judge had thrown out the plaintiffs' lawsuit because Hunt had failed to appear for the trial of the case. Hunt's witnesses had not been available, so he traveled out of town for another matter. When the case was called, a fellow Bar member informed Judge Frost that Hunt was away. By that time, the judge had lost his patience with Hunt because the case had been called several times before, yet neither Hunt nor the plaintiffs had appeared.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Although defense counsel (Mr. Yeadon) did not request it, Judge Frost declared a nonsuit at this final call of the case. Yeadon then moved to enforce a previous order that the costs of the case be assessed against Hunt, a request Judge Frost granted. Hunt subsequently filed a motion to set aside the nonsuit and was, therefore, required to post a costs bond with the clerk of court. It was at the hearing on Hunt's motion to set aside when he lost his temper, insulted Yeadon, and challenged the authority of the court, resulting in the sanction for incivility.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0At the hearing on Hunt's motion to set aside the nonsuit, Yeadon raised the issue of whether Hunt had properly paid the costs bond. Hunt's law partner (who was also his son) had delivered a check to the clerk of court. Yeadon challenged the sufficiency of this payment because the court rule at the time required the bond to be paid in cash. When Yeadon called him to testify, the clerk's recollection was poor and his records were unclear. A frustrated Yeadon hammered the clerk with questions. Hunt objected to Yeadon's questions as not relevant to the issue before the court. Hunt's objection was overruled and the examination of the clerk continued. Hunt became offended by Yeadon's questions, which Hunt believed suggested that Hunt was dishonest and not creditworthy. Judge Frost's refusal to sustain his objections angered Hunt further. In defiance of the judge, Hunt stood and chastised Yeadon and even advanced toward the bench. The judge stopped the hearing and issued a rule to show cause. Ultimately, Judge Frost held Hunt in contempt of court and imposed a fine.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0At this point, the intrepid among you are probably wondering how you missed this case in the advance sheets. Well, unless you have been practicing law for 160 years, it's not likely you would have seen it. Hunt's sanction was reported in 1850 in one of the earliest published opinions in South Carolina in which a lawyer was disciplined for incivility.1 With the advent of the revised Lawyer's Oath in 2003 and recent disciplinary opinions from the Supreme Court, enforcement of civil behavior among attorneys is sometimes misperceived as a new phenomenon. Even the American Bar Association recently featured South Carolina as "just the latest in a string of states formally demanding their lawyers treat others with respect."2 To the contrary, our courts have a long history of insisting on appropriate decorum from the Bar. While recent cases are instructive and cautionary, we can learn just as much from decades-old cases, like that of Benjamin F. Hunt.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Important lessons can be learned, not just from Hunt's misconduct at the hearing, but also from the mistakes he made in defending against the allegations of unprofessional behavior. One of the reasons discipline for incivility is considered "new" is because in 2011, by pure coincidence, our Supreme Court issued two unrelated disciplinary opinions, Matter of White and Matter of Anonymous Member of the Bar, involving rude and inappropriate behavior.3 This is not a result of a recent crackdown by disciplinary authorities in our state. In fact, complaints about uncivil behavior by lawyers are not unusual—even before the 2003 revisions to the Lawyer's Oath. The reason that is not common knowledge is because most lawyers, when faced with allegations of unprofessional behavior, will concede and correct the problem. Ordinarily, the lawyer will admit the inappropriate behavior; apologize to the person offended; and either demonstrate that the rudeness was out of character or pledge to do better in the future. In most circumstances, that is sufficient to conclude the matter confidentially.4

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0On the other hand, if the lawyer denies the behavior was professional misconduct or challenges the authority of the Court to impose discipline, the matter will be resolved through formal proceedings. Even if the end result is a letter of caution or an admonition, the matter is public record.5 Like the responding lawyers in White and Anonymous, Benjamin F. Hunt took the latter approach, and public discipline ensued. His example provides some dos and don'ts for lawyers facing allegations of incivility.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Don't feign ignorance.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In his first response to written notice of the rule to show cause, Hunt asserted that he had no idea what he had done wrong. He wrote, “I have a notice, not specifying what words spoken … are complained of; and, until I know, I am not prepared to admit, justify, or excuse them.”6 The...

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