RE AMENDMENTS TO RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT v. << (2025)

ORDER

By order dated August 1, 2024, entitled “Office of Disciplinary Counsel Independent Committee for the Supreme Court,”¹ this Court created an independent committee of lawyers to perform the duties of the Office of Disciplinary Counsel when a complaint alleging ethical misconduct or incapacity is filed against a member of the Supreme Court of South Carolina (Supreme Court) under the Rules for Judicial Disciplinary Enforcement (RJDE) contained in Rule 502 of the South Carolina Appellate Court Rules. With minor changes, this order incorporates the language of the August 1, 2024 order by adding new Rule 29 to the RJDE.

Further, the members of the Supreme Court have determined, as a matter of policy, that no member of the Supreme Court will participate in any proceeding brought against a current member of the Supreme Court under the RJDE. Instead, in such proceedings, a Panel of Judges will perform the duties of the Supreme Court. This will not only foster public confidence in the proceeding, but also avoid the potential adverse effects a pending disciplinary or incapacity proceeding could have on collegiality between the members of the Supreme Court. Therefore, new Rule 29 establishes the procedure for forming this Panel of Judges, and its duties and responsibilities.

Finally, this order amends Rule 27(g) of the RJDE to reflect the adoption of new Rule 29 along with several other changes.

Accordingly, pursuant to Article V, § 4 of the South Carolina Constitution, Rule 502 of the South Carolina Appellate Court Rules is amended as follows:

(1) The following new rule is added to Rule 502, SCACR:

RULE 29. DISCIPLINARY OR INCAPACITY PROCEEDINGS AGAINST A MEMBER OF THE SUPREME COURT

(a) Proceedings Generally; Current Member of Supreme Court Defined. Except as provided by this rule, any disciplinary or incapacity proceedings against a current member of the Supreme Court shall proceed under the Rules for Judicial Disciplinary Enforcement in the same manner as any other judge. A current member of the Supreme Court means a person presently occupying a seat on the Supreme Court under Article V, § 3 of the South Carolina Constitution. If a disciplinary or incapacity proceeding is pending against a judge who then becomes a current member of the Supreme Court, this rule shall immediately apply to that proceeding. If a disciplinary or incapacity proceeding is pending against a current member of the Supreme Court, and that member retires or otherwise becomes a former member of the Supreme Court, this rule shall continue to apply to that proceeding. Public access to documents and other information relating to disciplinary and incapacity proceedings shall comply with Rule 12 and Rule 28(b)(9).

(b) Committee to Perform Duties of Disciplinary Counsel.

(1) The Supreme Court shall appoint a standing committee of five lawyers, who are independent and are not employed by the South Carolina Judicial Branch, and designate a chair and vice-chair from the membership of the Committee. The Committee members shall serve on a voluntary basis without compensation. If any member of the Committee resigns or is unable to serve, a substitute member shall be appointed by the Supreme Court. If such a vacancy occurs while a proceeding is pending before a Panel of Judges under section (c) below, the Panel may appoint a substitute member, but that member will serve as a member of the Committee only in that proceeding.

(2) Any complaint of ethical misconduct (disciplinary proceeding) or any allegation of incapacity (incapacity proceeding) against a current member of the Supreme Court shall be assigned to this Committee. This Committee shall perform all duties normally performed by the Office of Disciplinary Counsel under the Rules for Judicial Disciplinary Enforcement. It shall make its decisions by majority vote, and a quorum of the Committee shall be three members. The chair or vice-chair may sign notices of investigation, subpoenas, recommendations, formal charges, agreements for discipline by consent, briefs, or any other document on behalf of the Committee. Further, the chair or vice-chair may designate one or more members to represent the Committee at any hearing before the Commission, the Panel of Judges (see section (c) below), or a hearing officer, or to conduct interviews or appearances under Rule 19(b) and (c)(3) of these rules. The members of the Committee shall have the same immunity as disciplinary counsel under Rule 13 and may administer oaths or affirmations under Rule 15.

(3) The Office of the Attorney General has agreed to furnish the Committee with any needed administrative and investigative assistance. The work of the Committee of independent lawyers shall be governed by applicable law and the Rules for Judicial Disciplinary Enforcement.

(c) Panel of Judges

(1) No member of the Supreme Court may participate in a disciplinary or incapacity proceeding arising against a current member of the Supreme Court. In such a proceeding, the duties normally performed by the Supreme Court under the Rules for Judicial Disciplinary Enforcement will be performed by the Panel of Judges specified by this rule, including the imposition of any sanction specified by Rule 7(b). An order or decision of the Panel shall have the same force and effect as an order or decision issued by the Supreme Court. Any filings with the Panel will be made with the Clerk of the Court of Appeals.

(2) The Panel of Judges shall consist of five members, and a quorum of the Panel shall be three members. It shall make any ruling or decision by majority vote. No retired judge may serve on this Panel.

(3) The Panel will be composed of the Chief Judge of the South Carolina Court of Appeals (Court of Appeals) and the four most senior associate judges on the Court of Appeals. In the event one of these members is disqualified or otherwise becomes unable to serve, the next most senior associate judge from the Court of Appeals will serve on the Panel.

(4) In the event disqualifications or other reasons prevents all the members of the Panel to be selected from the Court of Appeals, the Clerk of the Court of Appeals shall, by lot or other random method, select judges from the circuit and family court to serve so that the Panel has five members.

(5) The Presiding Judge of the Panel shall be the Chief Judge of the Court of Appeals, or if the Chief Judge is disqualified or otherwise unable to serve, the most senior judge of the Court of Appeals on the Panel. If no judges of the Court of Appeals remain to serve as the Presiding Judge, the members of the Panel shall select a Presiding Judge from among the membership of the Panel.

(6) The Panel of Judges will be created when the proceeding has reached a point where a ruling or other action by the Supreme Court is required or permitted under the Rules for Judicial Disciplinary Enforcement. Either the Committee established under section (b) above or the respondent in the proceeding may seek to have a Panel created by filing a motion with the Clerk of the Court of Appeals. This motion will be considered by the judge who would be the Presiding Judge under this rule, and if that judge determines the proceeding has reached a point where a ruling or other action by the Supreme Court is required or permitted under the Rules for Judicial Disciplinary Enforcement, the Presiding Judge shall create the Panel as provided by this Rule. Once created, the Panel will continue to exist until the proceeding is finally concluded.

(2) Rule 27(g) of Rule 502, SCACR, is amended to provide:

(g) Disqualification. A justice of the Supreme Court shall not participate in any proceeding where disqualification is required under the Code of Judicial Conduct. Following disqualification of the affected justice, the Chief Justice (or Acting Chief Justice) may appoint an acting justice to replace the disqualified justice for the duration of the case. This provision does not apply when members of the Supreme Court do not participate under Rule 29.

These amendments are effective immediately.

The order of this Court dated August 1, 2024, referenced above, is rescinded. The members of the Committee created by that order shall now serve on the Committee created by section (b) of Rule 29, RJDE. The members of this Committee are:

John S. Nichols, Chair

Lesley M. Coggiola, Vice-Chair

I.S. Leevy Johnson

Elizabeth Van Doren Gray

Meliah Bowers Jefferson

s/ John W. Kittredge, C.J.

s/ John Cannon Few, J.

s/ George C. James, Jr., J.

s/ D. Garrison Hill, J.

s/ Letitia H. Verdin, J.

FOOTNOTES

1.   This order is available at https://www.sccourts.org/media/courtOrders/PDFs/2024-08-01-04.pdf.