A ruling handed down last month by the South Carolina Supreme Court provides object lessons on several aspects of the lawyer discipline system and how to stay out of trouble. In its order and opinion, the court publicly reprimanded a lawyer who pursued a probate case all the way to the U.S. Supreme Court, engaging along the way in litigation tactics that the court found “frivolous and abusive.”
Frivolous will contest
According to the court’s disciplinary opinion, the lawyer was licensed in California, but was admitted pro hac vice in the Palmetto State, where she pressed a decade-long series of challenges to her great-aunt’s will. The lawyer’s clients were herself and her own mother — the great-aunt’s closest living relatives. The opposing parties were the caregivers to whom the great-aunt had bequeathed her estate. The state supreme court affirmed the rejection of the substantive claims in 2018. 422 S.C. 234 (2018).
The next year, without going into detail, the state supreme court affirmed more than $16,000 in sanctions against the lawyer under the state’s civil Rule 11, in an opinion finding that she lacked standing to pursue the claims, that her argument in support of standing “border[ed] on frivolity,” and that she had “engaged in abusive litigation tactics.”
The U.S. Supreme Court denied certiorari. 140 S. Ct. 59 (2019). But in the meantime, as required by the state’s Frivolous Proceedings Sanctions Act, the state supreme court had reported the Rule 11 sanction to the state’s Commission on Lawyer Conduct, launching the disciplinary proceedings.
As reported in the court’s disciplinary opinion, the hearing panel found that the lawyer had violated South Carolina’s version of Model Rule 3.1 (barring frivolous proceedings). The court found an additional violation of the state’s version of Model Rule 8.4(a) (making it misconduct to violate the Rules, knowingly assist or induce another to do so, or do so through the acts of another). The panel had recommended that the lawyer receive a “Letter of Caution,” a form of confidential disposition available in South Carolina disciplinary proceedings. But the state supreme court opted instead to publicly reprimand the lawyer, and also ordered her to pay costs.
Take-aways on pro hac vice, objectivity and more
Even though the court’s disciplinary opinion lacks detail about the underlying frivolous conduct that constituted the ethics rule violations it found, here are three things to chew on:
- Losing your objectivity can lead to problems. When you represent yourself and/or your family members, it can be easy to lose your way. You may not be the most objective and best judge about the case, how far to go, and what methods are appropriate in pursuing the client’s goal. From the scanty details given, we don’t know enough to say whether this was an issue in this case, but the risk is real and the precept is sound.
- You can be disciplined under another jurisdiction’s ethics rules. This case is a good reminder that when you litigate away from your home jurisdiction, your pro hac vice admission likely requires you to comply with the away-state’s ethics rules and to accept that state’s disciplinary authority over you. Here, a California lawyer, admitted pro hac vice in South Carolina litigation, found herself in the cross-hairs of that state’s disciplinary counsel.
- A judicial finding of frivolous conduct can have disciplinary consequences. When there is a judicial finding of frivolous conduct in underlying litigation, as there was here, it becomes that much easier for a disciplinary authority to conclude that a lawyer has violated Rule 3.1, which is tellingly titled “Meritorious Claims and Contentions.” What is required, the rule comment advises, is that lawyers “inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions.”
There’s more to say here (e.g., you can violate the ethics rules through the act of another, as was found here), but you get the point. Even a public reprimand is a painful consequence, and watching your P’s and Q’s can help avoid it.