Lawyer Discipline in South Carolina

Frequently Asked Questions

I received a Notice of Investigation from the Office of Disciplinary Counsel. What should I do?

Take it seriously, but do not assume that receiving a Noticeof Investigation means you have committed misconduct or will be disciplined. ANotice of Investigation means that the Office of Disciplinary Counsel (ODC) hasdetermined that the complaint alleges conduct that, if true, could violate therules governing lawyers in South Carolina.

The notice ordinarily requires a written response within 15days. Extensions may be available, but the response itself deserves carefulattention. What you say—and how you say it—can affect the direction of theinvestigation. This is often a good time to consult a lawyer experienced in professional responsibility before responding.

Does every grievance against a lawyer result in discipline?

No. Many do not. ODC initially screens complaints to determine whether the allegations, even if true, would constitute misconduct. Some complaints are dismissed without an investigation, and others are dismissed after the lawyer provides a response explaining the circumstances.

Even when ODC conducts additional investigation, the matter may ultimately be dismissed. The filing of a grievance is the beginning of a process, not a finding that the lawyer did anything wrong.

Can I represent myself in an ODC matter?

Yes. Lawyers are not required to retain counsel in a disciplinary investigation. Whether doing so is advisable is a different question.

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Lawyers sometimes find it difficult to evaluate allegations about their own conduct objectively. A response that is unnecessarily defensive, provides information beyond what is needed, overlooks the actual ethics issue, or creates a new issue can complicate an otherwise manageable investigation. Discipline defense counsel can help identify the issues raised by the complaint, determine what information should be provided, and present the lawyer's position effectively.

What happens after I submit my response to a discipline complaint?

An ODC attorney reviews the response and the information submitted with it. If the response sufficiently demonstrates that misconduct did not occur, ODC may dismiss the complaint.

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If questions remain, ODC may conduct additional investigation. That investigation can include obtaining documents, contacting witnesses, issuing subpoenas, and taking statements under oath. ODC may also require the lawyer to appear for an interview on the record and under oath. The appropriate strategy, therefore, depends on the allegations and how the investigation develops. An experienced ethics lawyer can help you better understand the process.

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Do I have to cooperate with ODC even if I think the complaint is frivolous?

Yes. A lawyer's obligation to cooperate with the disciplinary process exists independently of the merits of the underlying complaint. Failing to timely respond to a Notice of Investigation, comply with a subpoena, or appear when required can itself constitute misconduct and can have serious consequences.

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A grievance that might otherwise be defensible can become significantly more serious if the lawyer fails to respond appropriately to disciplinary authorities.

Is a disciplinary investigation confidential?

Generally, the investigation and negotiation stages of a South Carolina disciplinary matter are confidential as to ODC, the Commission on Lawyer Conduct, and the Supreme Court and their staff. Formal charges, however, eventually become public.

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The lawyer who is the subject of the investigation and the complainant is not generally prohibited from discussing the grievance. That does not necessarily mean doing so is wise. Public statements can implicate client confidentiality, litigation strategy, other Rules of Professional Conduct, and potential civil or other consequences. A lawyer considering publicly responding to a grievance should consult with counsel and carefully evaluate those issues first.

What can happen at the end of an ODC investigation?

There are a number of possible outcomes. A complaint may be dismissed, resolved through a letter of caution, referred to an investigative panel of the Commission on Lawyer Conduct, resolved through an agreed disposition, or result in formal disciplinary charges.

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Which outcomes are available depends on the facts, the seriousness of any misconduct, the harm caused, aggravating and mitigating circumstances, and other factors. One important part of discipline defense is evaluating those possibilities before deciding how to respond or whether a negotiated resolution is appropriate.

Can a disciplinary case be resolved without a public hearing?

Sometimes. South Carolina's disciplinary system provides several mechanisms for resolving matters without a contested public hearing.

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Depending on the circumstances, those can include confidential dispositions, discipline by consent, or a deferred discipline agreement involving remedial measures. Not every option is available in every case and some negotiated sanctions require approval by the Supreme Court. Evaluating resolution options requires consideration not only of the immediate sanction, but also of the longer-term professional consequences. This is where a discipline defense attorney can help.

What are formal charges, and what happens if they are filed?

Formal charges represent a significant change in the disciplinary process. The lawyer becomes the "Respondent," must file an answer, and the matter proceeds toward an evidentiary hearing before members of the Commission on Lawyer Conduct. The filings and hearing are public.

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After the hearing, the hearing panel makes findings and recommends a disposition to the South Carolina Supreme Court. The panel does not make the final decision. The Supreme Court independently reviews the record and determines whether misconduct occurred and, if so, what sanction is appropriate.

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A lawyer facing formal charges should strongly consider experienced disciplinary defense counsel.

What sanctions can the South Carolina Supreme Court impose?

Public sanctions can include a reprimand, suspension, disbarment, or debarment. The Court may also impose additional requirements such as restitution, payment of costs, practice restrictions, or other conditions.

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But the existence of formal charges does not mean a public sanction is inevitable. The Court may determine that misconduct was not prove nor that another disposition is appropriate. The potential consequences depend heavily on the particular facts and circumstances of each case.

I made a mistake. Am I required to report myself to ODC?

Not necessarily. South Carolina lawyers are not subject to a general rule requiring them to self-report every violation of the Rules of Professional Conduct.

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There are, however, specific circumstances in which self-reporting is required, including certain criminal charges and disciplinary action in another jurisdiction. In other circumstances, a lawyer may consider making a voluntary self-report. Whether voluntary reporting is advisable can involve important strategic and professional considerations. Before contacting disciplinary authorities, a lawyer who is uncertain about the reporting obligation should consider obtaining confidential ethics advice.

I have been arrested or charged with a crime. Do I have to notify ODC?

Possibly, and the deadline can be short. South Carolina requires a lawyer to report being arrested for or charged with a "serious crime," a defined term. Determining whether a particular charge triggers the reporting requirement can require careful analysis. The contents of the report also matter, particularly when a criminal case is pending and the lawyer retains constitutional rights that should be protected. Prompt consultation with both criminal defense and professional responsibility counsel prior to self-reporting can be helpful.

I was disciplined by another court or jurisdiction. What happens to my South Carolina license?

Discipline elsewhere can trigger reciprocal disciplinary proceedings in South Carolina. In many cases, the findings made in the other jurisdiction will be treated as conclusive evidence of misconduct, but that does not necessarily mean South Carolina will impose an identical sanction in every case.

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The grounds for challenging identical reciprocal discipline are limited and the process can move quickly. A South Carolina lawyer who has been disciplined elsewhere should address the South Carolina consequences promptly rather than waiting for ODC or the Supreme Court to act.

When should I contact a lawyer about a disciplinary matter?

Earlier is usually better. You do not need to wait until formal charges are filed—or even until a grievance has been filed—to seek advice.

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Discipline defense counsel can assist when a lawyer receives a Notice of Investigation, is asked to appear for an ODC interview, is considering whether to self-report, learns that another jurisdiction has imposed discipline, or recognizes that a situation may result in a grievance. Early advice can help the lawyer understand the process, preserve available options, avoid creating additional problems, and make informed decisions about how to proceed.

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