SC Bar

South Carolina Bar's E-Blast                                                              
May 13, 2008

Welcome to the South Carolina Bar's E-Blast!
E-Blast highlights upcoming activities, legal information and links to the Bar's Web site at www.scbar.org.

The South Carolina Bar is dedicated to advancing justice, professionalism and understanding of the law.



Board of Governors meets
The Board of Governors met May 8 in Florence.

The Board received and approved a recommendation for the Building Committee.

The Board approved a grant request from the Professional Potential Task Force. The grant will be used to survey Bar members on their satisfaction with the practice of law and reasons for early departure from the legal profession.

The creation of two new task forces was approved. The Task Force on Paralegal Registration will consider implementation of a registration system for paralegals. The Collaborative Law Task Force will examine issues surrounding collaborative law and determine whether the Bar should support an entity of persons interested in this area.

A request from the Young Lawyers Division to seek tax exempt status in order to provide a tax incentive for fundraiser contributions was approved.

The Board passed a resolution in support of requests made to the General Assembly by the judicial branch for increased court seats and compensation of jurists.

The Law Related Education Citizen of the Year Award was presented to Dr. Joseph Pitts of Campobello.

Nominating Committee members elected
Gena Phillips Ervin of Florence, Perry H. Gravely of Pickens, Stephen G. Morrison of Columbia and Mary Elizabeth Sharp of Beaufort were elected by the House of Delegates to terms on the Bar's Nominating Committee.

At Large Board member elected 
The Board of Governors has elected Regina Lewis to fill the unexpired term of Carl Solomon as an At Large Member of the Board. Solomon resigned his seat prior to being sworn in on May 8 as Secretary.

In forma pauperis form revised 
By order of May 7 Form SCCA 405F, Motion and Affidavit to Proceed In Forma Pauperis, was revised for use in the Family Court. To view the full text of the order, click here. To view the form, click here.

PMAP -- Your guide to...
News for solos and small firms. The new Solo & Small Firm Section newsletter, "Going Solo!" is now online. The Spring 2008 issue contains articles by South Carolina lawyers on the topics of lawyer blogs and trademark law issues. The majority of lawyers in South Carolina practice solo or in a small firm. Are you one of them? Consider signing up for the Solo & Small Firm Section. Dues are $20 a year. To contribute to the next "Going Solo," contact staff liaison Courtney Kennaday at pmap@scbar.org.

Legislation update
The following legislation has been passed by the General Assembly during the 2008 session. Online legislation and regulations are available at www.scstatehouse.net.

Official State Color. Act 200 (R229, S1033) amends Article 9, Chapter 1, Title 1, Code of Laws of South Carolina, 1976, by adding Section 1-1-710 to designate the color indigo blue as the official color of the state of South Carolina. Effective April 16, 2008.

Department of Motor Vehicles. Act 201 (R234, H3496) makes comprehensive changes to driving under the influence (DUI) and driving with an unlawful concentration (DWUAC) laws. Legislation includes enhanced penalties for DUI and DWUAC offenses, enhanced penalties relating to driver's license provisions and revisions to law enforcement provisions. Effective 12 p.m. on February 10, 2009.

Concealable Weapons Permits. Act 202 (R235, H3528) amends Section 23-31-215, Code of Laws of South Carolina, 1976, relating to the issuance of concealable weapon permits, so as to restrict the circumstances upon which the State Law Enforcement Division (SLED) may release its list of permit holders, to provide that a person who possesses a list of permit holders obtained from SLED must destroy the list, and to provide that during the first month of each year, SLED must publish a report that contains certain information regarding permits issued, renewed, denied, suspended and revoked during the previous year. Effective April 16, 2008.

UCC-Negotiable Instruments and UCC-Bank Deposits and Collections. Act 204 (R233, S936), comprehensive legislation, revises portions of the Uniform Commercial Code (UCC). Amendments to Articles 3 and 4 of the UCC update the parts of the UCC relating to negotiable instruments and banks. These updates accommodate changing practices and modern technologies.  Effective July 1, 2008.

Advance Sheet update
May 12, 2008
The Supreme Court affirmed the denial of PCR relief to Shumpert in this case involving alleged jury misconduct. An affidavit from a juror in Shumpert's trial was properly excluded by the PCR court. Although Rule 606, SCRE, expressly prohibits the introduction of juror testimony regarding both the content and the effect of statements occurring during the jury's deliberations, South Carolina has recognized an exception when necessary to ensure fundamental fairness. In the instant case, none of the issues raised by the juror's affidavit, including jurors' negative assumptions regarding Shumpert's declining to take the stand, approached the exception's high standard.
Shumpert v. State, No. 26483, is available online.

The Court reversed and granted relief to McKnight in this PCR case. McKnight was convicted of homicide by child abuse after giving birth to a stillborn child whose autopsy showed signs of drug use during pregnancy but also other medical problems. McKnight's first trial ended in a mistrial, and at the second trial the returning defense counsel did not present all of the evidence she had at the first. McKnight raised six issues for review, and among its holdings, the Court stated that counsel was ineffective in its failure to investigate medical evidence contradicting the State's experts' testimonies. In light of counsel's thorough investigation and examination of witnesses at the first trial, counsel was deficient in failing to conduct a reasonable investigation which resulted in a substantially weaker defense at the second trial.
McKnight v. State, No. 26484, is available online.

The Court reversed the ALC's finding that Section 3-11-400 requires the operator of a gambling cruise ship to submit monthly reports of gross proceeds, not just the percentage of winnings to losses. Section 3-11-400(C)(3)(b)(i) only requires the reporting of percentages of daily wins and losses and allows the Department to draft a form for the reporting of this data. Although the statute also allows the Department to obtain information, including the total amount of money taken in and paid out, to confirm the percentages for an annual audit, it does not require monthly reports of this information. Further, although Section 3-11-400(C)(3)(b)(iv) authorizes the Department to promulgate regulations to further implement this section, the Department has not promulgated any regulations requiring monthly reports of total monies paid in and paid out at this time. 
Ventures S. C. v. S.C. Dep't of Revenue, No. 26486, is available online.
Justice Waller dissented in a separate opinion.

The Court affirmed the ALC's interpretation of the Police Officers Retirement System disability statute. The disability retirement statutes mandate that the application be filed by a "member in service." Although Lazicki-Thomas was allegedly injured during her employment, she was not in service when her application was filed, and respondent's summary judgment motion was properly granted. 
Lazicki-Thomas v. S.C. Budget & Control Bd., No. 24687, is available online.

The Court reversed the circuit court's order revoking six months for violating the conditions of the Community Supervision Program (CSP) in this direct appeal. McGrier argued the CSP statute, specifically Section 24-21-560(D), was unconstitutional given a revocation from the CSP resulted in the imposition of a greater sentence than his original sentence without the benefit of the requisite constitutional protections. Reconsidering its decision in State v. Mills, 360 S.C. 621, 602 S.E.2d 750 (2004), the Court stated a practical application of Mills would violate a defendant's procedural due process rights and, further, improperly permit a CSP violation to become a separate and distinct criminal offense from that which a defendant was convicted, without the benefit of the requisite Sixth Amendment constitutional protections. Therefore, to remain within constitutional boundaries, the Court stated it now reads Section 24-21-560(D) as limiting the total amount of time an inmate could be incarcerated after a CSP revocation to be the length of the remaining balance of the sentence for the original offense. Under the new interpretation, a circuit court may not impose a sentence for a CSP revocation that would result in an inmate being incarcerated for an aggregate period of time that extended beyond the unsuspended portion of the original sentence. 
State v. McGrier, No. 26489, is available online.

The Court affirmed in this case involving Perkins' termination from the Thirteenth Circuit Drug Court Program and the imposition of his suspended sentence. The Court declined to address the propriety of Perkins' termination from the program because it would require the Court to evaluate the manner in which the Program's administrators execute the rules and regulations of the Program, an inquiry over which the Court has no authority. However, a participant is entitled to a hearing to determine whether he was in fact terminated from a Drug Court Program (i.e., whether the defendant violated a condition of his suspended sentence) before his sentence may be imposed. Perkins received such a hearing, and the trial judge correctly imposed the sentence.  
State v. Perkins, No. 24690, is available online.
 
In this insurance case, the Court affirmed the circuit court's order denying Cain uninsured motorist proceeds pursuant to a compensation section in the SC Tort Claims Act. Cain was injured in an accident involving a county owned dump truck and recovered the statutory maximum under the Tort Claims Act, which provides that underinsured motorist coverage can cover the difference between the amount capped in the statute and the actual needs of an injured party. Cain was not entitled to recover under the "uninsured" motorist section of his policy because, strictly applying the statutory and policy definitions, the dump truck was an "underinsured" vehicle--it had insurance protection greater than the minimum limits, but less than Cain's damages. Cain admitted that he did not have "underinsured" motorist coverage on his policy, only "uninsured." Because recovery under the Tort Claims Act is subject to the requirements in his policy, Cain failed to meet the definitions and cannot recover.
Cain v. Nationwide, No. 26491, is available online.

The Court of Appeals affirmed in part and reversed in part in this case arising out of adult entertainment zoning violations, an acquittal by the magistrate court, and the County's subsequent appeal to the circuit court. The circuit court violated the double jeopardy provision of the federal and state constitutions by allowing the County's appeal. Moreover, by addressing the issues raised by the County, the circuit court erroneously issued an advisory opinion. However, the circuit court properly denied appellants' motion for attorney's fees and costs.
Horry County v. Parbel, No. 4388, is available online.

The court affirmed the Special Referee's award to appellants Ward & Hodge in this breach of contract action. The Special Referee correctly held the contract ambiguous and properly looked to parol evidence to construe the contract. There was ample evidence to support the referee's decision that the parties intended for either to be able to terminate their agreement. The only monetary consequence for termination was the prorated repayment of the $500 placement fee, which the court ordered West Oil to pay to the appellants.
Ward v. West Oil. Co., No. 4389, is available online.

Discipline orders
By order of May 12 the Court disbarred Theodore Scott Geller as reciprocal discipline for his disbarment in Massachusetts.
 
By order of May 12 the Court suspended William Gary White III for six months for misconduct which included settling a personal injury claim without the client's consent, signing the client's husband's name on a settlement check without his consent and without an agreement to represent him, negotiating the settlement check in violation of the insurer's instructions and failing to return a portion of the settlement (the sum withdrawn as his legal fee) to the insurer.
 
By order of May 12 the Court issued a public reprimand to retired magistrate Larry M. Hutchins (not a Bar member).

Reinstatements
By order of May 6 the Court reinstated Carroll A. Gantt to the practice of law.
 
By order of May 7 the Court reinstated Albert L. Kleckley to Inactive Member status.
 
By order of May 8 the Court reinstated Robert J. Cantrell to the practice of law subject to monitoring and reporting conditions.

By order of May 12 the Court reinstated Marnee Lynn Hadfield of Midlothian, VA, to Inactive Member status.

In memoriam
J. Reese Daniel, 83, of Pawleys Island died on May 9, 2008. His obituary can be found at The Myrtle Beach Sun Web site.
 
Firm announcements
Hughey Law Firm, LLC announces that Summer D. Eudy has become an associate of the firm located at 501 Bramson Ct., Ste. 101, Mt. Pleasant 2946. (843) 513-1022.

Calendar
May 14
Employment and Labor Law Section Council Meeting, Conference Call

May 15
Family Law Section Council Meeting, Bar Building

May 16
Probate, Estate Planning & Trust Section Council Meeting, Conference Call
YLD Leadership Academy, Charleston School of Law

May 21
Insurance Programs Committee Meeting, Bar Building
YLD Committee Chairs Meeting, Conference Call

May 23
Professional Responsibility Committee Meeting, Bar Building

May 29
Access to Justice Commission Public Hearing, Lancaster County Courthouse





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