Inside the Inquisition

HOW QUEEN JEAN AND HER CHARGES DISPENSE “JUSTICE”

FITSNews – January 22, 2008 – We wrote a few months back about the petty dictatorship that is the S.C. Supreme Court’s unassailable hold over the legal profession in our state. We’ve also looked at legislation aimed at loosening that grip, although we’ve yet to take a position on precisely what reforms are needed.

One thing is for certain, though, the Court’s current system of regulating the legal profession represents the very worst form of “justice” imaginable, with no due process, no right to an appeal and nothing but the whim of the five Justices to dictate decisions that make or break attorneys’ careers. And as you’ll read momentarily, those whims don’t always have to be based on fact.

Before diving into this subject too deeply, we’ll be the first to admit that the test case we examined (which was just released by the Court this morning) is not prima facie a shining example of why the Court should be stripped of its regulatory authority (which it should). It’s pretty much a sordid, Days of Our Lives-style narrative of a lawyer who got caught screwing his client and violating any number of established rules governing legal conduct.

And frankly, we ended up agreeing with the Court’s ultimate finding in the matter – namely that the attorney broke the rules and should be disciplined accordingly. Unfortunately, the patently subjective, grossly illogical and distinctly un-American manner in which the Justices reached their decision is just as – if not more – grevious than the wrongs it seeks to right in this instance.

Underlying the case we examined is the seeming ineptitude of the Court’s Office of Disciplinary Council (ODC), an entity which appears to be as prone to incompetence as it is to favoritism. Throughout the document, the ODC acknowledges the failure of its own panel to make critical findings – but then asks the Justices to grant the verdict they want based on those “phantom findings” anyway. Which the Justices do.

For example, one of the central points of the case was whether or not the attorney involved violated a specific section of the lawyer code of conduct (Rule 1.14, to be precise) that prohibits improper attorney-client relationships whenever “a client’s capacity to make adequately-considered decisions” is impaired. In this case, the attorney’s client had an eating disorder, which the ODC felt constituted such an impairment. Additionally, the ODC was eager to prove that this attorney’s provision of financial aid to his client was a violation of another section of the code (Rule 1.8).

In both instances, the investigating panel did not find that either violation had occurred, but nonetheless the ODC requested that the Supreme Court decide the matter as if they had occurred. Which the Court did.

The panel also found no “aggravating circumstances” warranting the suspension that the Court ultimately handed down against this attorney, who self-reported his violations. Nor did the panel find other instances of misconduct by the attorney, although again, in both cases the ODC asked the Court to render its judgment as if such circumstances and instances of misconduct had actually been found.

Which again, it did. 

Like a grade school teacher correcting a history assignment, the Court’s decision is littered with references that its own panel “erred in failing to find” and “erred by not finding a violation,” which is basically another way of saying “you didn’t prove it, but we’re giving you the decision you want anyway.”

In fact, the Court admits as much on four key points of evidence in a footnote to its decision:

“We agree with the Panel that ODC did not prove by clear and convincing evidence the allegations of misconduct,” the Justices write.

Wait a minute … this is still America, right? Generally when things aren’t proven in this country by clear and convincing evidence, they get dismissed. They certainly aren’t magically reinserted into the public record and then used as a basis for issuing a verdict.

As we stated earlier, in this case it appears the Court ended up reaching the right decision. But in doing so, it set up a terrifying precedent. If the Justices can arbitrarily create new findings of fact or throw out findings of fact it doesn’t like, what’s to stop them from reaching any verdict they want regardless of the merits of a particular case?

The answer is nothing. Which is a scary thought. Add to that the Court’s unchecked subpoena, search and siezure powers, and there is literally nothing standing in the way of an innocent attorney being suspended based on manufactured evidence and phantom findings.

All of this would be bad enough if our Justices had an unimpeachable ethical record, of course as anybody who follows South Carolina politics knows, that clearly isn’t the case.

Comments

Trackbacks

• SC Supreme Court Faces Multiple Investigations | FITSNews