January 17, 2019
The House met on January 17, 2019, at the Marriott Grande Dunes Resort at Myrtle Beach. Present were: Grady Baldwin Anthony; Jacob Shuler Barker; J. Leeds Barroll, IV; Samuel Robert Bass, II; Shaheena R. Bennett; Mark S. Berglind; Susan B. Berkowitz; Matthew M. Billingsley; Maryann E. Blake; J. Steedley Bogan; Robert Eugene Bogan; Melody J. E. Breeden; Michael Demorris Brown; Steven Edward Buckingham; Sherri Marie Carr; Beverly A. Carroll; George B. Cauthen; Matthew W. Christian; Amie L. Clifford; M. Dawes Cooke, Jr.; Leslie A. Cotter, Jr.; Thomas M. Creech, Jr.; Elise Freeman Crosby; Carole Mari Dennison; Robert Scott Dover; Daniel L. Draisen; Martin S. Driggers, Jr.; Liam Donovan Duffy; Walter G. Dusky; Eric K. Englebardt; F. Cordes Ford, IV; Allen O. Fretwell; Elizabeth Fraysure Fulton; Kenneth S. Generette; Bernadette Shawan Gillians; Harry L. Goldberg; Elizabeth Van Doren Gray; Jack D. Griffeth; Martha L. Hamel; Jack W. Hammack; David Altman Haselden; Teckla S. Henderson; Matthew Robert Hubbell; John Croom Colvin Hunter; Russell Thomas Infinger; Susan P. Ingles; Jacob H. Jennings; Chad Nicholas Johnston; Lindsay Anne Joyner; Justin S. Kahn; D. Michael Kelly; Catherine H. Kennedy; Charles A. Kinney, Jr.; Francis B.B. Knowlton; Christopher R. Koon; Lanneau Wm. Lambert, Jr.; Roy Free Laney; Jonathan W. Lounsberry; Angus H. Macaulay; Jennifer Ross MacLeod; Walter Keith Martens; Karla Cecilia Martinez Lainez; John Lucius McCants; J. Edwin McDonnell; John O. McDougall; Steven T. Moon; Julie Jeffords Moose; Catherine Elizabeth Mubarak; John Hammond Muench; Randall K. Mullins; Timothy Ward Murphy; Adam Christopher Ness; Irish Ryan Neville; Elizabeth Foy Nicholson; James Graham Padgett, III; James C. Parham, Jr.; Alice F. Paylor; Sheally Venus Poe; Benjamin R. Pogue, III; Ashlin Blanchard Potterfield; Jacob Howell Raehn; Robert Lawrence Reibold; John Edward Robinson; John Edward Roxon; Martha Kent Runey; Nancy Doherty Sadler; Carmelo Barone Sammataro; Nina L. Savas; Stephen T. Savitz; Brittany Dreher Senerius; Mary Elizabeth Sharp; Nancy E. Shealy; Mary Amanda Harrelson Shuler; Lana H. Sims, Jr.; Jasmine Denise Smith; Lisa Lee Smith; Michael Benjamin Smith; Christian Giresi Spradley; Megan Finch Stevens; Randell Croft Stoney, III; Hal M. Strange; Fred W. Suggs, Jr.; Steve Wayne Sumner; Jason F. Taylor; David L. Tedder; John Hagood Tighe; Stephanie Millenbine van der Horst; Robert Bruce Wallace; Regina Bechtler Ward; Bradish J. Waring; Elizabeth H. Warner; J. Calhoun Watson; Rebecca Brown West; Donald B. Wildman; Marguerite S. Willis; Sheila Marlouvon Willis; Mitchell Willoughby; Ashleigh Rayanna Wilson; William M. Wilson, III; David Whitten Wolf; and Clinton Joseph Yarborough.
Guests present were The Honorable Benjamin H Culbertson; John F. McKeznie; Megan S. Seiner; Jeffrey S. Tibbals, Sr.; Michael J. Virzi and Harvey M. Wilson, III.
Representing the Bar staff were: Monica Briscoe; Cindy A. Coker; Mary‐Kathryn Craft; Nichole Davis; Jeremy Frazier; Leah G. Johnson; Charmy Medlin; David M. Ross; Jason Stokes; Leigh G. Thomas and Kali Turner.
Chair Rusty Infinger called the meeting to order. A quorum was declared present.
Mr. Waring moved to allow privileges of the floor to nonmembers. The motion was seconded, and it was approved.
Mr. Fretwell moved to adopt the agenda. The motion was seconded, and it was approved.
Ms. Joyner moved to approve the Consent Agenda ‐ approval of the minutes of the May 24, 2018, meeting; receipt of November Financial Statements; a request from the Solo and Small Firm Section to amend Section bylaws and a request from the Dispute Resolution Section to amend Section bylaws. The motion was seconded, and it was approved
Judge Benjamin H. Culbertson recognized winners of the Senior Lawyers Division’s 2018 Law Day Essay Contest including statewide winner Georgia Price of Spartanburg.
Under report of the President, Mr. Cooke provided updates on CLE Programming, Lawyers Helping Lawyers, the Pro Bono Program, Law Related Education, Membership Services and Bar communications. He expressed the desire to see the SC Bar serve all its members and thanked House members for their service.
Ms. Seiner provided a report on the activities of the SC Bar Foundation identifying some of the entities that had been served by SC Bar Foundation grants and sharing statistics on trends in giving. They encouraged House members to contribute to the Foundation.
Next, Mr. Lounsberry presented a request from the Practice and Procedure Committee to amend Rule 5(b)(1), SCRCP, to allow parties to consent to electronic service of documents. He moved approval of the request. The motion was seconded, and it was approved.
Next, Mr. Tibbals presented a request from the Pro Bono Board to amend commentary to Canon 4B of the Code of Judicial Conduct, Rule 501, South Carolina Appellate Court Rules, specifying language that judges are permitted to encourage pro bono services. Mr. Fretwell moved approval of the request. The motion was seconded, and it was approved.
Mr. Tibbals presented a request from the Pro Bono Board to amend Rule 426, South Carolina Appellate Court Rules, adding a comment defining a “major disaster affecting the justice system” and clarifying under what circumstance the rule is applicable. A motion was made to approve the request. The motion was seconded. Following discussion, the motion was approved.
Next, Mr. Virzi presented a request from the Professional Responsibility Committee to amend Rule 3.8 of the Rules of Professional Conduct relating to the special responsibilities of a prosecutor. The proposed amendments would impose a duty on prosecutors when evidence was discovered post‐conviction that indicated that the person who was convicted was innocent. A motion was made and seconded to adopt the proposed amendments. Discussion ensued on the investigation procedure and current standards. Mr. Padgett moved to table the proposal until the House could hear from a solicitor or representative of the Prosecution Coordination Commission as to how the proposal would affect them. It was noted that a representative from the Prosecution Coordination Commission was in the room. Mr. Padgett withdrew his motion to table.
Ms. Clifford was recognized and stated that the solicitors, the Prosecution Coordination Commission and the U.S. Attorney’s Office were all opposed to the proposed amendments. She noted that concerns were raised about who would have the obligation to investigate and the funds necessary to investigate. She moved to strike the proposed amendments and to substitute amendments as follows:
make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;except when the prosecutor is relieved of this responsibility by a protective order of the tribunal,
- make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense;
- , in connection with sentencing, timely disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, and
- , after conviction, timely disclose to the defendant or, if the defendant is represented, defense counsel new, credible and material evidence creating a reasonable likelihood that the defendant did not commit an offense of which the defendant wasconvicted;
(3) The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest. If a prosecutor believes that disclosure would violate some provision of law or the interests of a third party protected by law, the prosecutor may seek ex parte review by the trial court, and if the court enters a protective order granting relief following such an ex parte review, copies of the documents shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
(4) Paragraph (d) recognizes a prosecutor’s ongoing obligation to disclose credible exculpatory evidence after a conviction. A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of paragraph (d)(3), though subsequently determined to have been erroneous, does not constitute a violation of this Rule. For purposes of (d)(3), “defendant” includes convicted defendants, adjudicated juveniles, and convicted persons who are pursuing collateral attacks upon their convictions.
 Paragraph (e) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client lawyer relationship.
 Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c).
 Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer's office. Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph (f) requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law‐enforcement personnel and other relevant individuals.
She further moved to adopt the following resolution:
WHEREAS, the South Carolina Bar believes that the South Carolina Legislature should ensure that there is a procedure by which defendants, through counsel if they so choose, may pursue credible, material evidence of actual innocence that is discovered after a defendant has been convicted and could not have been discovered before conviction through the exercise of due diligence,
IT IS HEREBY RESOLVED that the South Carolina Bar encourages the South Carolina Legislature to study this matter and, as appropriate, enact legislation to provide for such a procedure and provide funding for counsel for indigent defendants.
The motion was seconded. Mr. Bogan moved to table discussion and send the proposal back to the Professional Responsibility Committee for further review. The motion was seconded.
Mr. Buckingham requested that more information be provided on the issue and possible remedies including proposing changes to the Rules of Criminal Procedure. Ms. Lawrence spoke in support of the Committee’s proposed amendments.
Mr. Bogan raised a point of order that a motion to table was to be immediately addressed.
Clarification was requested as to whether the motion to table the original proposal was appropriate given the motion to amend on the floor.
The Chair ruled that the motion to table could only apply to the motion to amend made by Ms. Clifford. Upon taking a vote, the motion to table was approved.
Discussion ensued on the original motion from the Professional Responsibility Committee to amend. Mr. Ness moved to table the proposal and send it back to the Committee for further review. The motion was approved.
Mr. Watson presented a request from the Professional Responsibility Committee to amend Rules 1.0, 1.1, 1.18, 4.4, 5.3, 5.5, and 8.5 of the Rules of Professional Conduct. The changes were part of the committee’s review of American Bar Association changes to Model Rules of Professional Conduct in light of the Commission on Ethics 2020 study on “how globalization and technology are transforming the practice of law and how the regulation of lawyers should be updated in light of those developments.” Mr. Bogan moved approval of the request. The motion was seconded, and it was approved.
Mr. Goldberg presented a request from the Dispute Resolution Section to repeal §38‐ 77‐710. He moved approval of the request. The motion was seconded. Mr. Barroll spoke in opposition to the motion. Mr. Ness moved to amend the proposal to request, rather than a repeal, a modification of the statute to allow the appointment of lawyers registered in the county under Rule 608, unless conflicts of interest eliminated all such lawyers. The motion was seconded. Following discussion, the motion to amend was approved. The main motion as amended was approved.
Mr. McKenzie presented a request from the Richland County Bar Association for $10,000 in funding for the South Carolina Supreme Court Security and Beautification project. A motion was made and seconded to approve the request. Mr. Fretwell spoke in support of the request. The motion was approved.
There being no further business, the meeting was adjourned.