S.C. high court upholds civility clause in lawyer oath

Thursday, April 28, 2011

Addressing what it calls a “growing problem among the bar,” the South Carolina Supreme Court has upheld the civility clause in the oath that lawyers must take to practice in the state.

The civility clause reads: “To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications… .”

The high court addressed the issue in the discipline of an anonymous attorney who sent an intemperate e-mail to opposing counsel — referred to as “Attorney Doe” by the state high court — in a domestic relations case. The e-mail read in part:

“I have a client who is a drug dealer on … Street down town. He informed me that your daughter was detained for buying cocaine and heroine (sic). She is, or was, a teenager right? … This incident is far worse than the allegations your client is making. I just thought it was ironic. You claim that this case is so serious and complicated. There is nothing more complicated and serious than having a child grow up in a high class white family with parents who are highly educated and financially successful and their child turning out buying drugs from a crack head at night.”

Attorney Doe’s spouse filed a complaint over the “Drug Dealer” e-mail to bar authorities. A hearing panel, which decides professional ethics matters for attorneys, determined that the e-mail’s author was subject to discipline under the South Carolina Rules of Professional Conduct.

The hearing panel found that the author of the e-mail violated several rules, including Rule 402(k), which deals with admission to the bar and contains the lawyer’s oath.

The hearing panel recommended that the attorney receive a letter of caution and a finding of minor misconduct. The attorney appealed to the state high court, which has ultimate authority over attorney discipline cases. The attorney argued that the civility clause was both vague and overbroad.

In its April 25 opinion in In the Matter of Anonymous Member of the South Carolina Bar, the court upheld the violations and rejected the attorney’s constitutional challenges to the civility clause.

Vague laws are unconstitutional in part because they fail to provide sufficient notice to someone if his or her conduct violates the law. “In this case, there is no question that even a casual reading of the attorney’s oath would put a person on notice that the type of language used in Respondent’s ‘Drug Dealer’ e-mail violates the civility clause,” the high court wrote. The majority added that the e-mail could constitute fighting words — a category of speech not protected by the First Amendment.

The majority also rejected the argument that the ethics rule was overbroad — a charge that a law sweeps too broadly and prohibits protected as well as unprotected speech. Generally, in order for challengers to prevail on an overbreadth claim they must show that the law punishes or penalizes a substantial amount of protected speech.

“There is no substantial amount of protected free speech penalized by the civility oath in light of the oath’s plainly legitimate sweep of supporting the administration of justice and the lawyer-client relationship,” the court wrote. “Thus, we find the civility oath is not unconstitutionally overbroad.”

The majority determined that because the attorney showed remorse, it would accept the hearing panel’s recommendation of a letter of caution and a finding of minor misconduct, and would issue it privately.

The majority added the following caveat: “We caution the bar that henceforth, this type of conduct could result in public sanction.”

One justice —Costa M. Pleicones — dissented, writing only: “As I would impose no sanction or other requirement in connection with this matter, I respectfully decline to join in the opinion.”

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