Commission on Lawyer Conduct

SC Supreme Court rule change affects every lawyer with a trust account

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Make one simple change to stay in compliance

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On October 23, our Supreme Court implemented several changes to the South Carolina Appellate Court Rules dealing with lawyer and judicial disciplinary rules enforcement procedures. If things go well in our respective practices, most of us will never have to study the rule changes.

But one change affects every lawyer with a trust account.

Rule 1.15(h) of the Rules of Professional Conduct has been amended to state that every lawyer maintaining a trust account must file a written directive requiring his or her financial institution to report to the Office of Disciplinary Counsel, rather than to the Commission on Lawyer Conduct, when any properly payable instrument is presented for payment against insufficient funds.

In other words, NSF checks must now be reported by your bank to the ODC.

The Court recognized in a footnote that these written directives will take time to update and that lawyers whose written directives currently require reporting to the Commission on Lawyer Conduct are not in violation of the rule. The Court stated that lawyers should update these directives at their earliest convenience.

Most dirt lawyers pay close attention to detail, and I would recommend paying attention to this one sooner rather than later.

How to employ a suspended lawyer

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Supreme Court offers guidance

Have you ever wanted to hire your suspended lawyer buddy?  What if your best friend from law school gets suspended and is desperate for work?  What if she is a great title abstractor? Now you can, under limited circumstances, hire her, and if you’re careful, you’ll keep your own license safe.

In February of 2015, the South Carolina Supreme Court softened its long-standing rule barring lawyers from employing disbarred or suspended lawyers, directly or indirectly, in any capacity. Under the former version of Rule 34* a lawyer without a current license could not be employed as a paralegal, investigator or in any capacity connected with a law practice.

Rule 34 was amended in 2015 to allow the employment of a lawyer suspended from practice for less than nine months under limited circumstances. The new version of Rule 34 allows these suspended lawyers to engage in:

  • Clerical legal research and writing, including document drafting, library or online database research, and searching titles, including obtaining information in the recording office; and
  • non law-related office tasks, including but not limited to, building and grounds maintenance, personal errands for employees, computer and network maintenance, and marketing or design support.

These suspended lawyers who are employed by a lawyer or law firm are forbidden from:

  • Practicing law in any form;
  • Having contact or interaction with clients, former clients or potential clients;
  • Soliciting prospective clients;
  • Handling client funds or trust accounting;
  • Holding himself or herself out as a lawyer; or
  • Continuing employment with the lawyer, law firm, or any other entity where the misconduct resulting in the suspension occurred.

The suspended lawyer must be supervised by a lawyer in good standing, and the two must submit a written plan to the Commission on Lawyer Conduct to outline the scope of the employment, anticipated assignments and procedures in place to insure no further misconduct.

After the amendment of Rule 34, the South Carolina Bar filed a petition with the Supreme Court to amend Rule 5.1 of the Rules of Professional Conduct, to detail the responsibilities of a supervising lawyer who elects to employ a suspended lawyer. By its order dated May 17, 2017, the Court adopted the Bar’s proposal and amended Rule 5.3 in addition to Rule 5.1.  You can read the entire order here.

If you have a heart of gold and want to help out a friend down on his luck, you now have the Court’s blessing and guidance. But, use caution and meticulously follow the rules to avoid finding yourself in your friend’s unfortunate position!

Just in Time for Halloween, SC Supreme Court Declines Frightening Request to Compel Random Lawyer Trust Account Audits

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The South Carolina Supreme Court amended the rules that govern lawyer discipline on October 25.* The big news here is not the very minor amendments that were adopted but rather the major requested amendments the Court declined to adopt.

The Commission on Lawyer Conduct and the Commission on Judicial Conduct proposed a rule amendment that would have imposed mandatory random audits of lawyer trust accounts. Without comment, the Court declined to adopt this rule change after “careful consideration”.

The Court also declined without comment an amendment that would have required a new position, a presiding disciplinary judge to act as a hearing officer to preside over disciplinary and incapacity hearings.

I have no idea why the Court made these decisions, but my guess is that the motivation revolved around the additional funds that these proposals would have required.

*Appellate Case No. 2015-0002336