Vol. 8, No. 5, Pg. 20. The lawyer Disciplinary Process in South Carolina.

• Author: By David Parrish

South Carolina Lawyer

1997.

Vol. 8, No. 5, Pg. 20.

The lawyer Disciplinary Process in South Carolina

20THE LAWYER DISCIPLINARY PROCESS IN SOUTH CAROLINABy David ParrishDear attorney [insert your name]:

The Board of Commissioners on Grievances and Discipline has received an inquiry from . . . .

This was the opening salutation in the initial inquiry letter a lawyer would receive from the Board of Commissioners on Grievances and Discipline when the lawyer had been accused of ethical misconduct. Approximately 900 complaints alleging lawyer misconduct are made in South Carolina each year-an average of two or three a day.

An allegation of misconduct is second only to a legal malpractice lawsuit in terms of threatening a lawyer's reputation and livelihood. In a disciplinary hearing, the lawyer is in the distinctly uncomfortable position of being tried by a group of his or her peers. To make matters worse, portions of the lawyer disciplinary records and proceedings are now open to the public.

The South Carolina Supreme Court recently revised the rules governing the lawyer disciplinary process. The new rules, which became effective on January 1, are closely based on the American Bar Association's Model Rules for Judicial Disciplinary Enforcement.

Under the revised rules, the Board of Commissioners on Grievances and Discipline was replaced by the new Commission on Lawyer Conduct (Commission), and the revision incorporates significant changes in the old disciplinary procedures. This article will provide an overview of the lawyer disciplinary process under the revised disciplinary rules.

COMMISSION ON LAWYER CONDUCT

Rule 413 of the South Carolina Appellate Court Rules provides the procedure for resolving allegations of lawyer misconduct. The revised Rule also includes the procedure for resolving allegations that a lawyer suffers from a physical or mental condition that adversely affects the lawyer's ability to practice law. Rules for Lawyer Disciplinary Enforcement Rule 1, contained in Rule 413, SCACR (effective Jan. 1, 1997).

The newly created Commission, which has replaced the Board of Commissioners on Grievances and Discipline, is comprised of 42 active members of the South Carolina Bar and two nonlawyer members of the public. It has the power and duty to receive, consider and investigate any alleged ground for discipline of any lawyer. In essence, the Commission acts as the judge and jury in all lawyer disciplinary matters.

THE COMPLAINT

The disciplinary process is initiated when any person (the complainant) files a complaint with the Commission. The complaint (called a "grievance" under the old rule) is an accusation "in any form from any source" that a lawyer has committed misconduct or is incapacitated. Rule 2(c). The complaint need not be in writing, id., and the complainant need not disclose his or her identity to the Commission when making a complaint. See Rule 18. A complainant is immune from civil liability for filing a complaint accusing a lawyer of misconduct or incapacity, no matter how unfounded and malicious the allegations may be. See Rule 13.

The Commission can consider a complaint regardless of whether the acts complained of occurred in the course of an attorney-dient relationship. See, e.g., Rule 2(c). Unlike a legal malpractice action, the standing of the complainant to file a complaint is not an issue. Many lawyers are surprised when a nonclient files a complaint against them. For example, the loser of a lawsuit may file a complaint against the opposing lawyer, which is especially prone to occur in domestic relations cases.

Once a complaint is received by the Commission, the disciplinary process against the lawyer may go forward even if the complainant

22does not cooperate with the Commission or drops the charge. Likewise, a settlement or compromise between the complainant and the lawyer will not necessarily stop the disciplinary proceedings. No statute of limitation...