South Carolina Lawyers Weekly is challenging a decision from the state Court of Appeals that affirmed a trial judge’s order dismissing the newspaper’s public records lawsuit against 9th Circuit Solicitor Scarlett Wilson.

Chief Judge James Lockemy held in a decision originally published March 14 — it was later withdrawn and refiled with some changes — that Wilson’s disciplinary records were protected under Rule 12 of the Rules for Lawyer Disciplinary Enforcement.

He also found that Wilson had not waived her right to confidentiality by referring to the existence of ethical complaints that had been filed against her when she responded to Lawyers Weekly’s records request under the state’s Freedom of Information Act.

Lawyers Weekly filed the FOIA request in 2015, after sources reported that the state Supreme Court’s Commission on Lawyer Conduct had issued a letter of caution or confidential admonition against Wilson. The letter is a warning and is not considered to be a sanction, unlike an admonition, which is imposed in cases of minor misconduct.

The sources reported that the commission, which has 50 members — 34 are lawyers and 16 are not — disciplined Wilson after an assistant public defender complained that prosecutors had been meeting secretly with inmates at the Charleston County jail without permission from their public defenders.

Wilson was the subject of a similar complaint in 2004, when she was a deputy solicitor. At the time, she defended her actions by contending that she had not discussed an inmate’s pending charges when she met with him without his public defender being present.

No decision on ‘public body’ argument

The Court of Appeals’ unanimous three-judge panel did not decide whether Wilson was a “public body” for the purposes of FOIA. Her office had asserted in an unsigned letter responding to the FOIA request that “[w]hile the Solicitor’s Office is a ‘public body’ and subject to FOIA, Ms. Wilson is not personally a ‘public body.’”

Lawyers Weekly had asked the Court of Appeals to find that Wilson was a public official, because she practices law solely as a public official, and that any documents related to her conduct as a public official should be subject to FOIA. But the Court of Appeals declined to reach the issue and instead based its decision on Rule 12.

During a hearing on Wilson’s motion to dismiss the suit at the trial level, Charleston County Circuit Judge R. Markley Dennis Jr. remarked that “if the only issue was whether or not she [Wilson] is a public body there is no question what I would do. I mean I think she is.”

But he subsequently ruled that the records in question were private under Rule 12, not subject to disclosure under FOIA and that ordering their release would “be an unreasonable invasion of personal privacy.”

Lawyers Weekly plans to ask the Court of Appeals to reconsider its decision and is prepared to take the case to the state Supreme Court.

Court says Rule 12 shields disciplinary records

An attorney for Lawyers Weekly, Desa Ballard of Ballard & Watson in West Columbia, had argued at the Court of Appeals that Rule 12 was irrelevant in this dispute because it addresses restrictions that apply only to the state Supreme Court and its Commission on Lawyer Conduct and Office of Disciplinary Counsel, which investigate and prosecute ethical complaints against lawyers.

But Lockemy held that under Rule 12, “complaints filed with the Office of Disciplinary Counsel do not become public documents until formal charges are filed and 30 days have passed after the filing of an answer, or in the absence of an answer, 30 days after the time to file an answer has expired.”

“Because Rule 12(b) indicates lawyer disciplinary complaints do not become public until after formal charges are filed, and no formal charges were filed against Solicitor Wilson, any complaints would not be public documents, and Solicitor Wilson would not be required to disclose them pursuant to FOIA,” he added.

Lockemy also rejected Ballard’s assertion that Rule 12 violated the separation of powers doctrine because it allowed the Supreme Court to modify the meaning of a statutory scheme. He wrote that “Rule 12 provides privacy protection for attorney disciplinary complaints, and their disclosure cannot be compelled until formal charges are filed.”

“The General Assembly, through appropriate procedures, approved Rule 12,” he added. “That consent was sufficient to satisfy any separation of powers requirements.”

First opinion pulled due to apparent error

The Court of Appeals removed the March 14 opinion from the Judicial Department’s website a day after it was published and filed a new decision five days later. In the second ruling, the line on “separation of powers requirements” was removed and replaced with the following:

“The General Assembly, through section 40-5-50, provided court rules, including rules regarding lawyer discipline, carry the force of law. … We find the General Assembly’s decision to allow court rules to carry the force of law satisfies any potential separation of powers issues.”

The court also altered language in another part of the opinion that had stated that the Supreme Court had to submit any lawyer disciplinary rules that it made to the “Judiciary Committee of each House of the General Assembly. … Such rules or amendments become effective ninety calendar days after submission unless disapproved by concurrent resolution of the General Assembly.”

But the replacement decision stated the Supreme Court has jurisdiction over lawyer discipline and disciplinary rules — and noted that when the high court promulgates a disciplinary rule it becomes effective and “shall supersede all laws or parts of laws in conflict therewith to the extent of the conflict.”

The tweak addressed an apparent error in the original opinion regarding whether the General Assembly or Supreme Court has final say on lawyer disciplinary rules.

Before an amendment to the state constitution in the 1980s, the General Assembly promulgated statutes that governed practice and procedure in the state court system. But the Supreme Court contended that the state constitution vested it with the exclusive authority to make those rules, according to Ballard.

She said the “tug of war” between the two branches resulted in a compromise that amended the state constitution to give the Supreme Court exclusive jurisdiction over regulating the courts and the practice of law. But the General Assembly retained the power to reject any rules that the Supreme Court proposed for practice and procedure in the state courts

“Letting the General Assembly enact the rules for practice and procedure in state court violated the separation of powers doctrine,” Ballard added. “That’s why we raised separation of powers in our brief, the language of FOIA cannot be modified by a court rule — it violates the separation of powers.”

The eight-page decision is South Carolina Lawyers Weekly v. Wilson (Lawyers Weekly No. 011-029-18). An opinion digest is available at sclawyersweekly.com.

Follow Phillip Bantz on Twitter @SCLWBantz



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