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H. 4371
STATUS INFORMATION
General Bill
Sponsors: Reps. Crawford, E.H. Pitts, Mulvaney and Talley
Document Path: l:\council\bills\ggs\22021ab08.doc
Introduced in the House on January 8, 2008
Currently residing in the House Committee on Judiciary
Summary: Legal Profession and Judiciary Commission
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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12/12/2007 House Prefiled
12/12/2007 House Referred to Committee on Judiciary
1/8/2008 House Introduced and read first time HJ-50
1/8/2008 House Referred to Committee on Judiciary HJ-50
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 40-5-5 SO AS TO CREATE THE COMMISSION ON THE LEGAL PROFESSION AND JUDICIARY, TO PROVIDE FOR THE COMPOSITION AND TERMS OF THE COMMISSION, TO PROVIDE FOR THE FILLING OF A VACANCY, AND TO PROVIDE POWERS AND DUTIES OF THE COMMISSION, AMONG OTHER THINGS; TO AMEND SECTION 40-1-40, RELATING TO THE DOMAIN OF THE DEPARTMENT OF LABOR, LICENSING AND REGULATION, SO AS TO PROVIDE THAT THE COMMISSION ON THE LEGAL PROFESSION AND JUDICIARY IS AMONG THE BOARDS OF PROFESSIONS AND OCCUPATIONS ADMINISTERED BY THE DEPARTMENT; TO AMEND SECTIONS 40-5-10, 40-5-20, 40-5-40, 40-5-50, 40-5-70, 40-5-210, AS AMENDED, 40-5-220, 40-5-340, 40-5-350, 40-5-360, 40-5-520, ALL RELATING TO THE REGULATION OF THE PRACTICE OF LAW, ADMISSION TO THE PRACTICE OF LAW, AND DISCIPLINARY ACTION AGAINST ATTORNEYS, SO AS TO PROVIDE THAT THE COMMISSION ON THE LEGAL PROFESSION AND JUDICIARY HAS EXCLUSIVE AUTHORITY TO REGULATE ADMISSION TO THE PRACTICE OF LAW AND DISCIPLINARY ACTIONS AGAINST ATTORNEYS, TO PROVIDE FURTHER CONFORMING CHANGES, AND TO CORRECT ARCHAIC LANGUAGE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 1, Chapter 5, Title 40 of the 1976 Code is amended by adding:
"Section 40-5-5. (A) There is hereby created the Commission on the Legal Profession and Judiciary, to be known as the Commission on the Legal Profession and Judiciary of the State of South Carolina.
(B)(1) As used in this chapter, 'commission' means the Commission on the Legal Profession and Judiciary of the State of South Carolina.
(2) The commission is composed of thirteen members as follows:
(a) three lay members;
(b) two members of the judiciary;
(c) two attorneys from the State at large; and
(d) six attorneys, each representing one of the six congressional districts.
(3) A member of the commission must reside in this State. A member who represents a congressional district must reside in the district he represents. An attorney member of the commission must be licensed in good standing by the commission, must be without prior disciplinary action or conviction of a felony or other crime of moral turpitude, and must be practicing the legal profession in this State. A lay member of the commission must hold a baccalaureate degree or higher from an accredited institution, must not have been convicted of a felony or a crime of moral turpitude, and must not be employed or have a member of his immediate family employed in a law firm, legal department, or the judiciary.
(4) A member of the commission may serve a term of four years or until his successor is appointed and qualifies. A member of the commission may serve no more than three consecutive terms.
(5) A member of the commission has full voting rights.
(6) One lay member and one attorney from the State at large must be appointed by the Governor, with the advice and consent of the Senate. Two lay members must be appointed by the Governor, with the advice and consent of the Senate, one upon the recommendation of the chairman of the Senate Judiciary Committee and one upon the recommendation of the chairman of the House Judiciary Committee.
(7) The commission shall conduct an election to nominate one attorney from the State at large. The election must provide for participation by all attorneys licensed in good standing and residing in South Carolina. To nominate the attorneys who will represent the six congressional districts, the commission shall conduct an election within each district. These elections must provide for participation by all permanently licensed attorneys residing in the particular district. The commission shall conduct an election to nominate two members of the judiciary from the State at large, and this election must provide for participation by any judge serving on this state's family court, circuit court, court of appeals, and Supreme Court. The commission shall certify in writing to the Governor the results of each election. The Governor may reject any or all of the nominees upon satisfactory showing of the unfitness of those rejected. If the Governor declines to appoint a nominee submitted, additional nominees must be submitted in the same manner following another election. A vacancy must be filled in the same manner of the original appointment for the unexpired portion of the term.
(8) A vacancy that occurs when the General Assembly is not in session may be filled by an interim appointment of the Governor in the manner provided for in Section 1-3-210.
(C) A public and lay member of commission and a panel of the commission must be appointed in accordance with Section 40-1-45.
(D) A commission member or person authorized by the commission to engage in business for the commission must be compensated for his services at the usual rate for mileage, subsistence, and per diem as provided by law for members of state boards, committees, and commissions. A commission member or person authorized by the commission to engage in business for the commission may be reimbursed for actual and necessary expenses incurred in connection with and as a result of their work as members or persons acting on behalf of the commission.
(E) The commission annually shall elect from among its members a chairman, vice chairman, secretary, and other officers as the commission determines necessary. The commission may adopt rules and regulations reasonably necessary for the performance of its duties and the governance of its operations and proceedings; governing the practice of law; and governing the judiciary, employees of the judicial department, and others assisting the judiciary.
(F) The commission shall meet at least four times a year and at other times upon the call of the chair or a majority of the commission.
(G) A majority of the members of the commission constitutes a quorum; however, if there is a vacancy on the commission, a majority of the members serving constitutes a quorum.
(H) A commission member is required to attend meetings or to provide proper notice and justification of inability to do so. The Governor may remove members from the commission for absenteeism, as well as for other grounds provided for in Section 1-3-240."
SECTION 2. Section 40-1-40 of the 1976 Code is amended to read:
"Section 40-1-40. (A) The purpose of the Division of Professional and Occupational Licensing, South Carolina Department of Labor, Licensing and Regulation, is to protect the public through the regulation of professional and occupational licensees and the administration of boards charged with the regulation of professional and occupational practitioners.
(B) The following boards and the professions and occupations they license or otherwise regulate must be administered by the Department of Labor, Licensing and Regulation pursuant to this article:
Board of Accountancy
Board of Architectural Examiners
Athletic Commission
Auctioneers Commission
Board of Barber Examiners
Accessibility Committee of the Building Codes Council
Building Code Council
Board of Chiropractic Examiners
Contractors' Licensing Board
Board of Cosmetology
Board of Dentistry
Engineers and Land Surveyors Board
Environmental Certification Board
Board of Registration for Foresters
Board of Funeral Service
Board of Registration for Geologists
Commission on the Legal Profession and Judiciary
Manufactured Housing Board
Board of Medical Examiners
Modular Buildings Board of Appeals
Board of Nursing
Long Term Health Care Administrators Board
Board of Occupational Therapy
Board of Examiners in Opticianry
Board of Examiners in Optometry
Board of Pharmacy
Board of Physical Therapy Examiners
Pilotage Commission
Board of Podiatry Examiners
Board of Examiners for Licensure of Professional Counselors and Marital and Family Therapists
Board of Examiners in Psychology
Board of Pyrotechnic Safety
Real Estate Appraisers Board
Real Estate Commission
Residential Builders Commission
Board of Social Work Examiners
Board of Examiners in Speech-Language Pathology and Audiology
Board of Veterinary Medical Examiners
(C) Each regulatory board within the department is a separate board.
(D) The Department of Labor, Licensing and Regulation is a member of the Governor's executive cabinet and must be headed by a director who must be appointed by the Governor with the advice and consent of the Senate, subject to removal from office by the Governor pursuant to Section 1-3-240(B). The director shall supervise the department under the direction and control of the Governor and shall exercise other powers and perform other duties as the Governor requires."
SECTION 3. Section 40-5-10 of the 1976 Code is amended to read:
"Section 40-5-10. The inherent power of the Supreme Court commission has exclusive power with respect to regulating the practice of law, determining the qualifications for admission to the bar and disciplining, suspending and disbarring attorneys at law is hereby recognized and declared. The authority conferred on that court in Sections 40-5-10 to 40-5-60 shall be deemed as cumulative thereto in this State. The Supreme Court has exclusive authority to regulate the practice of law in this State in all other respects."
SECTION 4. Section 40-5-20 of the 1976 Code is amended to read:
"Section 40-5-20. (A) The Supreme Court commission alone may from time to time prescribe, adopt, promulgate, and amend such rules and regulations as it may deem considers proper for:
(a) defining and regulating the practice of law,
(b)(1) determining the qualifications and requirements for admission to the practice of law,;
(c) prescribing a code of ethics governing the professional conduct of attorneys at law,
(d)(2) prescribing the procedure for disciplining, suspending, disbarring, and reinstating attorneys at law and the judiciary,.
(B) The Supreme Court alone may from time to time prescribe, adopt, promulgate, and amend such rules and regulations it considers proper for:
(1) defining and regulating the practice of law, except concerning admission to the practice of law and attorney or judicial discipline;
(2) prescribing a code of ethics governing the professional conduct of attorneys at law and the judiciary;
(e)(3) organizing and governing an association to be known as the South Carolina State Bar which shall be composed of the attorneys at law of the State, and which shall act as an administrative agency of the Supreme Court of South Carolina for the purpose of improving the administration of justice,; and
(f)(4) fixing an annual license fee for the practice of law in this State, the payment of which shall entitle but not require any an attorney to be a member in the South Carolina State Bar and providing for the collection and the disbursement of such license fees. At such time as the South Carolina State Bar is established all offices, appointments or official duties heretofore delegated or given to the South Carolina Bar Association or any an officer of the same South Carolina Bar Association by statute or appointment of the State of South Carolina or any a branch thereof of the State of South Carolina shall be vested in the South Carolina State Bar and its officers."
SECTION 5. Section 40-5-40 of the 1976 Code is amended to read:
"Section 40-5-40. The Supreme Court commission alone may appoint boards or committees to examine all applicants for admission to the bar, and boards or committees to act as administrative agencies of the court for the purpose of investigating and reporting the violation of such rules and regulations as are adopted by the court and to hear all causes involving discipline, disbarment, suspension or reinstatement of attorneys and to make recommendations thereon regarding these things to the Supreme Court commission. Such hearings shall be had under such procedure as may be held pursuant to procedures established by the court commission. Any such An administrative agency created by the Supreme Court shall have commission has the power of subpoena for the purpose of aiding it in hearing cases of discipline, suspension or disbarment."
SECTION 6. Section 40-5-50 of the 1976 Code is amended to read:
"Section 40-5-50. All rules and regulations promulgated and adopted under the terms of Sections 40-5-20 and 40-5-40 shall must be filed with the clerk of the Supreme Court or the commission, as appropriate, and shall must not be effective until the lapse of three months after they are so filed. Upon such these rules and regulations becoming effective, they shall supersede all laws or parts of laws in conflict therewith with them to the extent of the conflict."
SECTION 7. Section 40-5-70 of the 1976 Code is amended to read:
"Section 40-5-70. The justices of the Supreme Court or the commission may pass such rules as may be necessary to carry into effect the provisions of this chapter and from time to time amend such the rules as occasion may require. The State Board of Law Examiners may also make rules for its conduct and government, not inconsistent with the provisions of law and subject to the approval of the Supreme Court commission."
SECTION 8. Section 40-5-210 of the 1976 Code, as last amended by Act 307 of 2002, is further amended to read:
"Section 40-5-210. There is hereby created a State Board of Law Examiners. The Board of Law Examiners shall must be appointed by the Supreme Court commission and shall have such duties as the court shall prescribe commission prescribes. The number of members of the board and the terms of the members shall be set by the Supreme Court commission. To be eligible for appointment to the board, a person must be actively engaged in the practice of law in South Carolina and must have been an active member of the South Carolina Bar for at least seven years. Members shall be are eligible for reappointment. Should a vacancy occur, the court commission shall fill the vacancy for the unexpired term. At least one member from each congressional district must be appointed by the Supreme Court commission."
SECTION 9. Section 40-5-220 of the 1976 Code is amended to read:
"Section 40-5-220. No An original license to practice as an attorney, solicitor or counsellor shall may only be granted except by the Supreme Court commission. All applications An application for admission to the bar in the State shall must be made by petition to the Supreme Court commission."
SECTION 10. Section 40-5-340 of the 1976 Code is amended to read:
"Section 40-5-340. If any an attorney, solicitor or counsellor shall enter enters into any a speculating practices practice, by purchasing or procuring to be purchased any a note or other demand for the purpose of putting the same a note or demand in suit, when otherwise the owner or holder thereof of the note or demand would not sue upon it, such the attorney, solicitor, or counsellor shall pay a fine of one hundred dollars and shall is thereafter be incapable of practicing as such in any court a court in this State until restored by the Supreme Court commission."
SECTION 11. Section 40-5-350 of the 1976 Code is amended to read:
"Section 45-5-350. It is unlawful for a person or his agent, employee, or anyone acting on his behalf to:
(1) solicit or procure through solicitation, either directly or indirectly, legal business; or
(2) solicit or procure through solicitation a retainer, written or oral, or an agreement authorizing an attorney to perform or render legal services.
A person who violates a provision of this section is guilty of a misdemeanor and, upon conviction, must be fined in the discretion of the court commission or imprisoned not more than three years, or both."
SECTION 12. Section 40-5-360 of the 1976 Code is amended to read:
"Section 40-5-360. It is unlawful for a person, partnership, corporation, or association to divide with or receive from, or to agree to divide with or receive from, an attorney or group of attorneys, whether practicing in this State or elsewhere, any a portion of a fee or compensation charged or received by an attorney or any valuable consideration or reward as an inducement for placing or in consideration of having placed in the hands of an attorney, or in the hands of another person a claim or demand of any kind for the purpose of collecting the claim or bringing an action on the claim or of representing the claimant in the pursuit of any a civil remedy for the recovery of the claim. This section does not apply to an agreement between attorneys to divide between themselves the compensation to be received.
A person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined in the discretion of the court commission or imprisoned not more than three years, or both."
SECTION 13. Section 40-5-520 of the 1976 Code is amended to read:
"Section 40-5-520. Any An attorney, solicitor, or counsellor may be removed or suspended who shall be by the commission if he is guilty of any deceit, malpractice or misbehavior, but not until a copy of the charges against him shall have been delivered to him by the clerk of the court in which the proceedings shall be had commission and an opportunity shall have has been given him of being to be heard in his defense."
SECTION 14. Section 40-5-230 of the 1976 Code is repealed.
SECTION 15. The Code Commissioner is directed to change references from the Supreme Court to the Commission on the Legal Profession and Judiciary as necessary after the enactment of this act.
SECTION 16. This act takes effect upon ratification of the constitutional amendment providing that the jurisdiction over the admission of the practice of law and discipline of persons admitted shall not be under the Supreme Court but rather must be as provided by the General Assembly.
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