Minutes House of Delegates July 30, 2021
The House met this date at the Beaufort Inn.
Participating were: Shedricka Taccara Anderson; S. Maria Shiloh Averill; Margaret Elise Baker; Martin Rast Banks; Jacob Shuler Barker; J. Leeds Barroll, IV; Cherie T. Barton; Samuel Robert Bass, II; Elizabeth A. Battle; Mark S. Berglind; Susan B. Berkowitz; Joseph Pawel Bias; Matthew M. Billingsley; Maryann Elizabeth Blake; Clifford Lewis Bourke, Jr.; Kristine Jay Braswell‐Amin; Melody Joy Edelman Breeden; Melody Jane Brown; Robert Lesley Brown; Derek Mitchell Bush; Beverly A. Carroll; George B. Cauthen; Aleksandra Boguslawa Chauhan; M. Dawes Cooke, Jr.; Lee Deer Cope; Leslie A. Cotter, Jr.; West Paul Cox; A. Sandy Cruickshanks, IV; Larry Cunningham; Elnora Jones Dean; Megan Catherine Hunt Dell; Robert Scott Dover; Martin S. Driggers, Jr.; Walter George Dusky; John D. Elliott; Scott A. Elliott; Frank L. Eppes; Ashley R. Forbes; Debra J. Gammons; Warren V. Ganjehsani; Shauna Lisa Gibson; Tiffany D. Gibson; Michael Frederick Gillen; William Eugene Grove; Doward Keith Karvel Harvin; Daryl G. Hawkins; Teckla S. Henderson; Amy L.B. Hill; Russell Thomas Infinger; James Matthew Johnson; Lindsay Anne Joyner; D. Michael Kelly; Catherine H. Kennedy; Christopher R. Koon; Lanneau Wm. Lambert, Jr.; Roy Free Laney; Tameaka A. Legette; Jonathan William Lounsberry; Garry Donald Malphrus; Karla Cecilia Martinez Lainez; John Lucius McCants; John O. McDougall; Joseph S. Mendelsohn; David B. Miller; Elizabeth Fulton Morrison; Adam Christopher Ness; Vincent Charles Northcutt; Alice F. Paylor; Ross Buchanan Plyler; Michelle Duncan Powers; Edward K. Pritchard, III; Frederick Elliotte Quinn, IV; Frederick Elliott Quinn, IV; Robert Lawrence Reibold; John E. Rosen; Nancy Doherty Sadler; Carmelo Barone Sammataro; Stephen T. Savitz; Mary Elizabeth Sharp; Jane Opitz Shuler; N. Gruber Sires; Jasmine Denise Smith; Krystal Watson Smith; Christian Giresi Spradley; Fred W. Suggs, Jr.; Jeanmarie Tankersley; David L. Tedder; Stacy Elizabeth Thompson; John Hagood Tighe; Stephanie Millenbine van der Horst; Michael J. Virzi; Zachery Lee Weaver; Frances Ricci Land Welch; Richard Giles Whiting; Mitchell Willoughby; Nicole Nichols Workman and Michael Dennis Wright.
Guests present were: Chief Justice Donald Beatty, Thomas Pendarvis, Kirsten Small, Nekki Shutt, Guy Vitetta, and Robert Wood.
Representing the Bar staff were: Mary‐Kathryn Craft, Nichole Davis, Jeremy Frazier, Betsy Goodale, Charmy Medlin, David M. Ross, Jason Stokes, Kimberly Snipes, and Kali Turner.
Chair Chris Koon called the meeting to order. A quorum was declared present.
A motion was made to allow privileges of the floor to nonmembers. The motion was seconded, and it was approved.
Mayor Stephen D. Murray, III, extended a welcome to the city of Beaufort.
Chairperson Koon advised the House that Agenda Item 3, Request from the Pro Bono Board to Amend Rule 6.1 of the SC Rules of Professional Conduct, had been removed from the agenda. The amended agenda was adopted by acclamation.
Mr. McDougall moved to approve the Consent Agenda ‐ approval of the minutes of the May 6, 2021, meeting. The motion was seconded, and it was approved
Mr. Ness recognized the 2020 Pro Bono Law Lawyers of the Year, Jeffrey Kuykendall, Brian Bevon, and Ian Watterson.
Next, Mr. McDougall presented a request from the Senior Lawyers Division to amend the Bar Bylaws and Constitution to add a second representative from the Division to the Board of Governors and moved approval. The motion was seconded, and it was approved.
Mr. Pendarvis presented a request from the Professional Responsibility Committee to establish an Attorney Dispute Resolution Program. The program would be similar to the Fee Dispute Program but would focus on disputes between attorneys. The proposal included an opt‐out so that the parties could just mediate or mediate and arbitrate and the result provided a vehicle to appeal to the Circuit Court if necessary. A motion was made to adopt the proposal. It was noted that mediation was mandatory, but arbitration was not. Following discussion, the motion was approved.
Mr. Vitetta presented a request from the Practice and Procedure Committee to amend Rule 14(e) of the SC Family Court Rules to allow for acceptance of service. He stated that the rule currently only allowed for personal service of a Rule to Show Cause unless the Court ordered otherwise. The Committee’s proposal included the ability of a party and/or their attorney to accept service of the same by combining the appropriate language from Rule 4(j), SCRCP, with the existing Rule 14(e). Mr. McDougall moved to approve the request. The motion was seconded, and it was approved.
Next, Mr. Vitetta presented a request from the Practice and Procedure Committee to amend Rule 4, SCRCP, to provide specific procedures for serving an individual in a foreign country. Mr. Lounsberry moved approval of the proposal. The motion was seconded, and it was approved.
Mr. Vitetta presented a request from the Practice and Procedure Committee to add notes to Rule 11, SCRCP, based on the decision in Pee Dee Health Care v. Estate of Hugh S. Thompson. The decision addressed the conflict between Rule 11, SCRCP, and the South Carolina Frivolous Civil Proceedings Sanctions Act regarding the time to file a request for sanctions. Mr. Lounsberry moved to adopt the proposal. The motion was seconded, and it was approved.
Next, Mr. Wood presented a request from the Unauthorized Practice of Law Committee to adopt a regulatory structure to address complaints regarding the unauthorized practice of law. He reviewed the Committee's history and efforts to address UPL noting that the focus shifted with the 2015 US Supreme Court decision in N.C. State Bd. of Dental Exam'rs v. FTC. The proposal suggested that the Supreme Court establish a Commission on the Unauthorized Practice of Law and authorize the Office of Disciplinary Counsel to review, investigate, and where appropriate, prosecute UPL complaints. The Commission on UPL would function similarly to the Commission on Lawyer Conduct and the Commission on Judicial Conduct, with the assistance of the Commission Counsel. A motion was made to approve the proposal. The motion was seconded. Discussion ensued on whether the Office of Disciplinary Counsel had been consulted, asking the Attorney General to deputize members of the UPL Committee to prosecute, how the case information would be compiled, the ultimate enforcement mechanism, and federal processes such as social security disability claims, that allow non‐ lawyers to serve as advisors. Following discussion, the motion was approved.
Ms. Shutt presented a request from the Civil Rights Task Force to establish a Civil Rights Section of the Bar. A motion was made to approve the request. The motion was seconded. Discussion ensued on Committees vs. Sections, whether there was overlap with existing Bar entities and whether the proposed section would meet the required 70 member minimum. Mr. Cauthen moved to amend the proposed bylaws by adding the following section:
Article V, Section 5, Disability Defined as to this Article. When used in this Article, the term “disability” shall refer to the inability of the officer to carry out assigned duties.
The motion was seconded, and it was approved.
Mr. Ness moved that the House approve the formation of a Civil Rights Law Section effective upon proof of 70 signatures, with initial dues to be paid by January 1, 2022. The motion was seconded. The Chair reviewed the Bar Bylaws regarding the creation of a new Bar Section and ruled the motion inconsistent with the Bylaws. Following discussion, the main motion was approved.
Ms. Small presented a request from the Professional Responsibility Committee to amend Rule 8.4 of the SC Rules of Professional Conduct. The proposed amendments were designed to regulate conduct, define prohibitive conduct, include a standard to avoid accidental violation and make a distinction between conduct and speech. A motion was made to adopt the proposal. The motion was seconded. Discussion ensued on the 1st Amendment, whether the proposal was supported by the Office of Disciplinary Counsel, the definitions of discrimination and harassment, and support from the Diversity Committee. Mr. Malphrus moved to indefinitely postpone discussion on the proposed rule pending the receipt of an Opinion of the South Carolina Attorney General as to any legal issues that could arise. The motion was seconded. Following discussion, the motion failed.
Discussion resumed on the main motion. Following discussion, the main motion failed. John D. Elliott abstained from voting.
There being no further business, the meeting was adjourned.