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Those who enter the legal profession assume immense responsibility and impose upon themselves the highest obligations of public trust. Central to maintaining these exacting standards is an effective and robust attorney discipline process – one built around a culture of integrity and accountability.
In South Carolina, as in many other jurisdictions, the state’s judicial branch oversees the investigation of complaints against attorneys – while the supreme court imposes disciplinary action against lawyers who breach these standards. The latter part of that process is very public, but the investigatory side of the equation is shrouded in secrecy — with allegations that the prevailing opaqueness not only shields those guilty of misconduct but facilitates unfair witch hunts against those guilty of nothing more than offending the powerful and politically connected.
And what of the culture of integrity and accountability?
The ongoing saga of convicted killer Alex Murdaugh and his accomplices – who used the Palmetto State’s court system to steal millions of dollars from vulnerable clients over a period of nearly a decade-and-a-half – certainly doesn’t instill much confidence in the current system. Same goes for the institutional environment in which Murdaugh and his co-conspirators perfected their schemes.
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The Office of Disciplinary Counsel (ODC) operates under the state’s supreme court. It serves as an ostensibly independent agency “primarily tasked with screening and investigating all of the complaints made against both judges and lawyers in South Carolina.” The office is also responsible for “prosecuting those judges and lawyers who have either committed ethical misconduct, or are suffering from a physical or mental condition which adversely affects their ability to serve the public.”
Before delving into these issues, it’s important to understand the purpose of the attorney discipline process. At its core, this system is designed to protect the public, maintain the integrity of the legal profession and ensure that attorneys adhere to a code of professional conduct. The attorney discipline process acts as a deterrent against unethical behavior and provides a mechanism for addressing complaints and concerns when they arise.
William M. Blitch, Jr. – who until earlier this year worked in the office of attorney general Alan Wilson – is the lawyer currently charged by the supreme court with receiving, screening, investigating, and, as necessary, prosecuting complaints made against both judges and lawyers. Blitch has a staff of attorneys who assist him in that process.
(Click to View)
The ODC receives complaints from a myriad of sources including clients, other attorneys or judges. After they are received, complaints are reviewed by the ODC to determine if they merit further investigation. If the complaint is deemed to have merit, the ODC then proceeds to conduct a more thorough investigation. This investigation may involve gathering evidence, interviewing relevant parties, and reviewing documents.
Following the investigation, the ODC prepares a report based on the findings of the investigation and presents it to the Commission on Lawyer Conduct (CLC) — a 50-member panel made up of 34 attorneys and 16 members of the general public. The report includes the results of the investigation and recommendations regarding whether disciplinary action should be pursued. If the CLC determines an attorney’s conduct warrants disciplinary action, they may impose sanctions such as reprimands, suspensions, disbarment or other appropriate measures, depending on the severity of the violation.
After the process is completed, attorneys have the right to appeal disciplinary decisions within the prescribed procedures. The supreme court typically handles those appeals.
Here is how the process works …
(Click to View)
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THE ISSUES
Critics argue the current attorney discipline process in South Carolina suffers from various inadequacies that hinder its ability to fulfill its intended purpose. Among these issues? The length of time it takes to investigate complaints. The investigative process can be protracted, leaving complainants waiting for resolution for an extended period. The duration of an investigation can vary depending on several factors including the complexity of the case, the nature of the allegations, the availability of evidence, the caseload of the disciplinary office and other related circumstances.
As complainants await the outcome of the investigation, they are often left in the dark by the opaque process which provides few updates to those who initiated the complaint. Transparency is vital to maintaining public confidence in the system – and the lack of it this case contributes to a lack of understanding of the process. That makes it difficult for the public to understand how and why decisions are made – which, in turn, makes it difficult for them to trust those decisions.
The outcomes of seemingly similar disciplinary cases can also vary significantly, leading to perceptions of inconsistency and favoritism. Some argue nearly identical offenses yield vastly different sanctions, sowing confusion and leading many to believe prejudices or grudges are driving decision-making.
Critics also contend the range of sanctions available may not be sufficient to deter unethical behavior effectively. Many suggest stronger sanctions – including disbarment – should be applied more rigorously for serious offenses.
In 2010, attorney Joseph W. Ginn, III received a nine-month suspension from practicing law after an independent audit of his client trust account found he had used $18,059.70 in client money for his own benefit. Meanwhile, attorney Wilton Darnell Newton was disbarred for improperly removing $41,000.00 from a trust account. Despite distinct circumstances and varying mitigating factors in each case, the sanctions imposed by the commission appeared to be inconsistent.
In cases of comparable misconduct, one lawyer might face a public reprimand – while another might be suspended from practicing law. The absence of clear guidelines regarding standard sanctions for misconduct makes it challenging to ascertain whether other factors – like political affiliations and connections – influenced these outcomes.
And let’s not forget, that challenge is compounded by the secrecy of the process.
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RECENT TRENDS
The CLC compiles an annual report which provides some information on filed complaints, investigative outcomes and disciplinary actions. However, this report fails to provide year-to-year data analysis – which would allow researchers to draw meaningful comparisons. It also omits vital details that would assist the public in comprehending the data.
Nonetheless, our news outlet took a closer look at the numbers in the hopes of providing some more detailed insight for our readers.
Significantly, during the fiscal year 2022-2023, a total of 1,838 complaints were filed, marking a 33 percent surge from the previous annual peak recorded in 2015. It is uncertain whether this increase was linked to the extensive media coverage surrounding the Murdaugh case, but it seems likely the extensive attorney misconduct that saga exposed was a contributing factor.
Despite reaching a record high in the number of complaints against lawyers in South Carolina, the rate of dismissed complaints post-investigation was at the lower spectrum compared to the data from the past decade.
Another anomaly noted within the data is the high number of complaints – 35 in total – which were closed due to the death of a lawyer during the past year. This is a 94 percent increase from the previous record of 18 complaints closed due to an attorney’s death set back in 2014.
While comparing the numbers, another outlier was identified. In 2015, 140 lawyers were disbarred — an astounding 255 percent increase over the previous annual high of 62 lawyers in 2011. Just two years prior – in the 2012-2013 annual report on lawyer discipline – the complaints in which the alleged misconduct was listed as “trust account conduct” was also at an all-time high of 13.42 percent.
Just as we will continue advocating for judicial reform, FITSNews will continue digging into the processes and outcomes of the systems established to shield Palmetto State citizens from legal and judicial misconduct. This investigation will encompass an in-depth analysis of both the judicial misconduct process and a comparative examination of the processes and data in South Carolina as opposed to those in other states.
Be on the lookout for that report soon.
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THE DATA
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ABOUT THE AUTHOR …
Jenn Wood is FITSNews’ incomparable research director. She’s also the producer of the FITSFiles and Cheer Incorporated podcasts and leading expert on all things Murdaugh/ South Carolina justice. A former private investigator with a criminal justice degree, evildoers beware, Jenn Wood is far from your average journalist! A deep dive researcher with a passion for truth and a heart for victims, this mom of two is pretty much a superhero in FITSNews country. Did we mention she’s married to a rocket scientist? (Lucky guy!) Got a story idea or a tip for Jenn? Email her at jenn@fitsnews.com.
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2 comments
You cannot simply compare two disciplinary rulings involving alleged similar conduct and assume disparate treatment. There are a number of factors that go into what discipline is issued.
In your example above, Ginn only had two matters of misconduct while Newton had four. Ginn had already paid restitution while Newton had not. Ginn apparently had a mitigating mental health issue for which he was seeking treatment.
What is unknown is how many prior complaints or investigations had been instituted against the attorneys. There may not have been prior suspensions or reprimands, but there may have been numerous complaints before regarding Newton. Also, there could have been more complaints against Newton that weren’t included in the opinion.
Newton consented to the disbarment, so he knew that there was sufficient grounds to remove him from the practice.
You write about transparency. However, most of these complaints involve confidential attorney client issues that have to be protected during the investigation. Furthermore, publicly documenting allegations of misconduct that turn out to be unsustained could have a detrimental effect on the attorney’s reputation and ability to make a living.
From what I’ve seen, the “just us” system in SC is a clown car filled with incompetents that would be funny to watch from a distance, but God forbid you get caught up in it’s gears, because then it goes from a comedy to a nightmare.