In October, the South Carolina Supreme Court published three opinions of a disciplinary matter:
First, in the Matter of Lisabeth Rogers, the court issued a public reprimand for violating Rules 1.7 (lawyer shall not represent client if representation involves concurrent conflict of interest; concurrent conflict of interest exists if there is significant risk that representation of client will be materially limited by lawyer’s personal interest) and 8.4 (it is professional misconduct for a lawyer to violate the Rules of Professional Conduct or do so through the acts of another; it is professional misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation ) of the South Carolina Rules of Professional Conduct. Employed by Oconee Medical Center as General Counsel, Rogers acted as guardian to a patient who was without family. Subsequently, Rogers allowed her own son to reside in the patient’s home to act as a handyman, who instead vandalized the residence and sold the patients possessions, including an automobile.
Next, in the Matter of Darryl Smalls, the court imposed a definite suspension for a continued practice of failing to pay for court reporting services, in a timely manner, violating Rules 4.4 (in representing a client, lawyer must have respect for rights of third persons) and 8.4(e) (it is professional misconduct to engage in conduct that is prejudicial to the administration of justice) under the South Carolina Rules of Professional Conduct.
Dating back to 2009, Smalls received multiple transcripts from several agencies and avoided paying each balance until the Office of Disciplinary Counsel was notified. In 2014, the Commission on Lawyer Conduct accepted an agreement by consent that Smalls would complete conditions of disciplinary actions, including; completing the Legal Ethics and Practice Program (LEAPP) Ethics School and Law Office Management School by October 29, 2015, and maintaining $1,000 in his operating account to cover costs incurred on behalf of clients, including court reporting invoices.
The court accepts the Agreement for Discipline by Consent and imposes on [Smalls] a definite retroactive suspension from the practice of law for eighteen (18) months, retroactive to the date of his interim suspension. As well as reestablishing prior disciplinary actions be completed within 120 days of the order.
Finally, in the Matter of Alvin Lundgren, the court permanently debarred Lundgren in the state of South Carolina after abusing pro hac vice privileges multiple times, as well as for violating the South Carolina Rules of Civil Procedure.
Lundgren, who resides in Utah, sought to represent his wife in a defamation action brought by her ex-husband, by applying for pro hac vice admission in South Carolina (2009) but continued the case without local counsel, as required by Rule 404(f), SCACR. In 2012, Lundgren submitted another application for pro hac vice to represent his wife in further divorce actions but failed to file the application or a motion to appear pro hac vice in the family court before appearance. Lastly, in 2014, Lundgren improperly issued subpoenas and discovery request—without proper admission—in violation of South Carolina Family Court Rules, the South Carolina Rules of Civil Procedure, and under Rule 407 of SCACR.
The South Carolina Supreme Court decided, although he is not licensed to practice law in South Carolina, Lundgren’s misconduct is enough to prohibit him from seeking any form of admission to practice law, advertise, or solicit legal services in the state.
The South Carolina Supreme Court published four additional opinions:
In Mangal v. State, Mangal applied for Post-Conviction Relief (PCR) —without the help of counsel— claiming ineffective counsel, to which the PCR court denied relief with no mention of improper bolstering. The court of appeals found the PRC court erred in not ruling on improper bolstering and that counsel was ineffective for not objecting to it.
The State filed a petition for writ of certiorari, which was granted. The Supreme Court holds the PCR court acted within its discretion in refusing to address the issue of bolstering. Mangal’s application made no mention of the claim, and his counsel (obtained before the hearing) did not indicate any claim beyond ineffective counsel. When reviewing the act, here, the court found the testimony of the expert witness did not support a claim of bolstering because her testimony was based in part on physical findings. In short, the court reversed the court of appeal’s find and reinstated the PCR court’s order denying PCR.
In State v. Wyatt, the court grants Wyatt’s petition for a writ of certiorari, after he argues the trial court erred in not suppressing two eyewitness identifications. Courts apply a two-prong test to determine whether due process requires suppression. The first prong requires determining whether the identification resulted from unnecessary suggestive police identification. The trial court only applied the second prong, which the current court determined was incorrect in application. If the police procedures were not suggestive, or necessary under the circumstances, the inquiry ends on the first prong.
Here, Wyatt’s description was primarily by his clothing and general features, such as being male and apprehended within 15 minutes close to the scene of the crime. The police cannot limit themselves to in-house lineups when there is an opportunity for an on-scene identification. These identifications allow for police to determine if further investigation is necessary quickly, and to free innocent suspects. The court ultimately finds this line-up necessary under the circumstance and affirms the trial court decision.
Justice Hearn concurred in a separate opinion.
Briggs v. State involved the review of a Post-Conviction Relief (PCR) action, where Briggs claims that his counsel was ineffective and permitted a forensic interviewer to give opinion testimony. At trial, the State’s witness, Arroyo-Staggs, a forensic interviewer, testified as an expert witness. The Supreme Court found two issues; first, Singleton, Briggs’s defense attorney failed to object to the improper bolstering of Arroyo-Staggs testimony on direct examination. The court used numerous past opinions to show that bolstering is improper. Here, Arroyo-Staggs testified that her “role” was to determine whether the child knows the difference between a truth and a lie and that her purpose was to “find out if something happened”, indirectly conveying to the jury that she believed the victim. The court found this improper because the jury must determine the victim’s credibility. Additionally, the standard that which an attorney objects to bolstering was not developed until after the trial, and therefore Singleton’s failure to object cannot be improper.
Next, the court looks at Brigg’s claim that, Singleton elicited improper bolstering testimony from Arroyo-Staggs on cross-examination. Singleton’s defense strategy was to prove that no-one believed the victim; including her mother, grandmother, and father. Instead, Singleton showed the jury that an “expert” believed the child by asking directly “how can you as an expert determine she’s telling the truth?” The court found this improper.
Finally, the court determined that without Arroyo-Staggs testimony, there was a reasonable probability that the results would have been different. Thus, the Supreme Court affirmed the PRC court’s finding and remands to the court of general sessions for a new trial.
In State v. King, the Court granted the parties’ cross-petitions for a writ of certiorari after reviewing the Court of Appeals rulings. The Court affirmed the Court of Appeals’ finding that at trial, the judge errored when charging the jury that “a specific intent to kill is not an element of attempted murder but it must be a general intent to commit serious bodily harm”. The Court reasoned that the General Assembly’s repeal of the common law crime of assault and battery with intent to kill (“ABWIK”) and purposeful creation of attempted murder, included the element “specific intent to kill”.
The Court also affirmed the Court of Appeals’ finding that the admitting hearsay testimony, by an investigating officer, was in error. It held that the investigating officer’s testimony was hearsay because it was exclusively based on what the witness told the officer, which offered to prove that defendant fired more than one shot.
Next, the Court found that the Court of Appeals erred in affirming the trial court’s admission of a 15-minute phone call made by the defendant while incarcerated. During trial, the judge didn’t listen to the recording before allowing disclosure to the jury. The Court found that no weight was given to the recording as to its probative value versus any unfair prejudice because during trial. Although the Court found that admission of the call was in error, it also found that the error did not warrant reversals and constituted “harmless error”.
Justice Kittredge concurred in a separate opinion.
* Summaries created with the assistance of Melanie Rumfelt, Library Research Assistant.