INTEREST OF AMICI CURIAE
The undersigned County Bar Associations (“the Associations”) respectfully
submit this brief as amici curiae in support of the South Carolina Bar’s petition to
replace the existing version of Rule 608, SCACR. The Associations have filed a
motion for leave to file this brief pursuant to Rule 213, SCACR.
As the Court is aware, the Associations promote the interests of the legal
profession for the benefit of both their professional members and the public at
large. Due to their status as local organizations, the Associations are particularly
cognizant of (and responsive to) the concerns and interests of their member
attorneys.
At present, those interests are largely focused on the issues
addressed in the South Carolina Bar’s petition to replace Rule 608, SCACR.
Indeed, the recent suspension of all Rule 608 payments by the South Carolina
Commission on Indigent Defense has only heightened those concerns and added
urgency to the pending petition.
In urging the replacement of Rule 608, SCACR, the South Carolina Bar’s
petition seeks to protect the rights of its member attorneys, as well as the general
public. The Bar’s proposal would protect the rights of attorneys to receive fair
compensation for their professional services, but it would also protect the public
by preserving the rights of indigent citizens to receive effective legal
representation.
The Associations also support those goals, and this shared
purpose has motivated the Associations to submit this amici curiae brief.
The Associations certainly concur with and support the arguments and
authorities set forth in the South Carolina Bar’s brief.
1
Yet, the Associations
believe there are additional justifications for replacing Rule 608, SCACR, which
are not addressed in that brief. This brief, therefore, is not merely a repetition of
the arguments previously made by the South Carolina Bar. Rather, this brief
serves the purpose of an amici curiae brief by offering supplemental grounds in
support of the petition.
2
ARGUMENT
I.
THE STATE OF SOUTH CAROLINA HAS AN IMPLIED-BYLAW CONTRACT WITH APPOINTED ATTORNEYS, AND
RULE 608 MUST BE REPLACED TO AVOID UNJUST
ENRICHMENT.
As the following discussion demonstrates, the State has an impliedby-law contract (also known as a quasi-contract) with the attorneys it
appoints to represent indigent citizens.
This fact supports the South
Carolina Bar’s petition because quasi-contract serves as an equitable
basis for a person to recover the value of his goods or services from those
who have been unjustly enriched by them. See Myrtle Beach Hosp., Inc.
v. City of Myrtle Beach, 341 S.C. 1, 8, 532 S.E.2d 868, 872 (2000). Thus,
the existence of a quasi-contract makes it inequitable for the State to
retain the benefit of appointed attorneys’ services without paying for them.
Due to the State’s refusal to make those payments, this Court must
intervene and restore equity.
A party claiming the existence of a quasi-contract must establish
the following elements: (1) a benefit conferred upon the defendant, (2) the
realization of that benefit by the defendant, and (3) the retention of the
benefit by the defendant under circumstances that make it inequitable for
him to retain it without paying its value. Myrtle Beach Hosp., 341 S.C. at
8-9, 532 S.E.2d at 872.
An application of this test to the relationship
between the State and attorneys appointed to represent indigents
pursuant to Rule 608, SCACR, demonstrates that a quasi-contract exists.
3
(1)
Benefits Conferred and Realized
Under the current version of Rule 608, SCACR, the State receives
and realizes several benefits from the appointed attorneys.
First, the
system of appointing attorneys promotes the State’s interest in judicial
efficiency. The courts of this State operate more smoothly when all of the
parties in a given case have attorneys representing them.
Those
attorneys understand the rules and procedures of the various courts, as
well as the temperament and expectations of the presiding judges. Pro se
litigants, on the other hand, do not possess that knowledge. No matter
how noble their intentions might be, pro se litigants lack the requisite legal
training and experience to navigate their ways through the judicial system.
Consequently, a case with a pro se litigant proceeds more slowly, as the
judges and other attorneys are forced to deal with the steep and inevitable
learning curve those litigants face. What might have been a relatively
simple matter suddenly becomes a tremendous time burden on the courts.
Appointing attorneys to represent litigants who would otherwise be
representing themselves prevents (or at the very least limits) that
undesirable outcome. As a result, the cases involving appointed attorneys
proceed with fewer delays and a greater possibility of pre-trial resolutions.1
1
When both sides are represented by counsel, the risks associated with a trial
apply with more force to all parties. For example, the involvement of a skilled
defense attorney creates a greater risk of an acquittal than there would be if the
defendant were pro se. Thus, the appointment of a defense attorney increases
the likelihood that the solicitor will be willing to propose or accept a plea deal.
The same logic also applies to contested DSS cases.
4
This, in turn, promotes judicial efficiency by bringing cases to a close more
quickly. The increase in judicial efficiency is especially important in the
family courts and courts of general sessions, where backlogged dockets
continue to be a pressing concern and, in some cases, a constitutional
problem.
Furthermore, this promotion of judicial economy is not an arbitrary
or incidental result of the Rule 608 system. The State actively appoints
attorneys to represent indigents, and it does so (at least in part) with the
express goal of making the judicial system run more smoothly.
The
attorneys do not volunteer to represent the indigent clients. Rather, the
State leaves them no choice in the matter. Thus, it is direct State action
that causes the appointed attorneys to assist in the promotion of judicial
efficiency. In other words, the State creates and imposes the system in
which the attorneys are forced to participate, and the State reaps the
resulting benefits.
As a result, the State cannot argue that increased
judicial efficiency is anything other than a direct, intended benefit.
Basic judicial efficiency, however, is not the only positive result the
State receives from the current version of Rule 608.
The State also
receives and retains the quantum meruit value of the appointed attorneys’
unpaid legal services for representing indigents. Granted, the indigents
themselves benefit from those services as well. But this fact does not
make the benefit to the State any less real.
The State is required to
provide legal representation for indigents in certain situations, and it fulfills
5
that obligation, in large part, through Rule 608. Thus, the current system
further aids the State by allowing it to satisfy its statutory duty to provide
representation in some cases without actually paying for the legal
services.
To say that this system directly “benefits” the State is an
understatement.
The law does not require the State to provide legal representation
for indigents in all civil matters.
Yet, the South Carolina Code does
provide some instances where trial courts must appoint an attorney. For
example, an indigent is entitled to an attorney in post conviction relief
cases, sexually violent predator cases, termination of parental rights
hearings and child abuse and neglect hearings. See S.C. CODE ANN. §§
17-27-60, 17-27-160, 20-7-1570, 20-7-110 (2007). These statutes require
the State to provide attorneys to those who cannot afford them, and the
State uses Rule 608 appointments to meet its statutory duty in most (if not
all) of those cases.
As a result, the State directly benefits from the
attorneys’ compelled services. Simply put, the State satisfies its legal duty
at the attorneys’ expense.
The State might argue against this assertion based on the Court’s
decision in Myrtle Beach Hosp., Inc. v. City of Myrtle Beach, 341 S.C. 1,
532 S.E.2d at 869 (2000).
Any such reliance would be misplaced,
however, because Myrtle Beach is distinguishable. Although that case
addresses the same general legal issue as the present situation, it lacks a
key element that establishes the existence of a quasi-contract between the
6
State and the appointed attorneys.
In Myrtle Beach, the plaintiff hospital sought reimbursement under a
quasi-contract theory for medical services its staff provided to the City’s
pretrial detainees. The hospital relied in large part on the argument that
the
City
benefited
from
those
services
because
the
City
was
constitutionally required to see that its pretrial detainees received
necessary medical care. The hospital claimed its actions benefited the
City by allowing it to fulfill those constitutional obligations.
This Court ultimately considered the issue and disagreed with the
hospital’s position.
Although it acknowledged the City’s constitutional
obligations, the Court focused on the absence of any state law requiring
the City to pay for the medical services it was supposed to obtain for
pretrial detainees. The Court concluded the lack of such a requirement
meant the City did not benefit directly from the hospital’s services.
Instead, the Court found the pretrial detainees received the direct benefit,
and the City received only an incidental benefit. 341 S.C. at 9-10, 532
S.E.2d at 873.
Thus, no direct benefit to the City existed, and the
hospital’s quasi-contract claim failed. Id.
The present situation differs from Myrtle Beach in at least one
significant respect. As discussed above, the Court found no state laws
requiring the City to pay for medical services obtained for pretrial
detainees, and this factored heavily into the Court’s decision. But in the
present situation, South Carolina law does impose a duty on courts to
7
reimburse appointed attorneys. In addition to the State’s constitutional
prohibition
against
taking
property
for
public
use
without
just
compensation,2 there are several state laws that impose a duty on the
court to pay legal fees for attorneys appointed in indigent defense cases.
Under the Uniform Post Conviction Relief Act, for example, courts
are required not only to appoint counsel for indigents, but also to pay court
fees, including the “costs and expenses of representation.” S.C. CODE
ANN. § 17-27-60.
Similarly, the Family Court Rules entitle appointed
attorneys in child abuse and neglect proceedings to receive a fee not to
exceed $100, unless the court determines extraordinary circumstances
warrant a larger fee. Rule 41, SCRFC. In addition, S.C. Code § 44-48-90
requires reimbursement for the services of attorneys in sexually violent
predator cases. See State v Cooper, 342 S.C. 389, 402, 536 S.E.2d 870,
877 (2000).
All of these authorities require the State to pay for the
attorneys it appoints. Again, this important factor was absent in Myrtle
Beach.
An examination of other relevant legislation demonstrates that the
State is aware of this financial obligation. In State v Cooper, supra, the
Court acknowledged that Part IB of the 1999 state appropriations act
included funds to pay for the services of attorneys appointed to sexually
violent predator cases. 342 S.C. at 402, 536 S.E.2d at 877. 3 Subsequent
2
See S.C. Const. art. I, § 13.
In fact, the Court concluded the Act’s language was broad enough to cover not
only attorney’s fees, but also the fees of experts hired by those attorneys.
3
8
yearly appropriation bills have included the same language designating
money to pay attorneys appointed to represent indigent clients in civil
matters. See 2008-9 Ann. Appr. Act, H. 4800, 117th Gen. Assem. Part IB,
§ 47 (S.C. 2008); 2007-8 Ann. Appr. Act, H. 3620, 116th Gen. Assem. Part
IB, § 35 (S.C. 2007); 2006-7 Ann. Appr. Act, H. 4810, 115th Gen. Assem.
Part IB, § 35 (S.C. 2006); 2005-6 Ann. Appr. Act, H. 3716, 114th Gen.
Assem. Part IB, § 35 (S.C. 2005). Section 47.5 of Part IB of the 2008-9
appropriation act specifically states:
The funds appropriated under "Civil Court
Appointments" shall be used for Civil Court
Appointments including Termination of Parental
Rights, Abuse and Neglect, Probate Court
Commitments, Sexually Violent Predator Act,
and Post Conviction Relief (PCR) to reimburse
court appointed private attorneys and for
other expenditures as specified in this
provision. Civil Court Appointments funds
may not be transferred or used for any other
purpose. (emphasis added).
Thus, the legislature continues to acknowledge the State’s obligation to
pay for the services of appointed attorneys, even though (as discussed in
the South Carolina Bar’s brief) it has failed to actually make those
payments.
Clearly, then, South Carolina courts have a legal duty not only to
appoint attorneys to represent indigents in certain situations, but also to
pay for those services. The city in Myrtle Beach, on the other hand, had
only a duty to make sure medical care was provided; it had no statutory
obligation to pay others for providing that care.
9
This is a significant
distinguishing factor.
Another distinguishing factor involves the types of people for whom
the appointed services are intended. There was no indication that all (or
necessarily any) of the pretrial detainees in Myrtle Beach were unable to
pay for the medical services.
As this Court pointed out, some of the
detainees might have had sufficient funds to cover the costs of medical
care, and those that did not might have had health insurance. Still others
might have qualified for Medicaid. There was simply no way to conclude
that the hospital would fail to receive any compensation for the medical
care if the City did not pay for it. Other possibilities for payment existed,
and the hospital was free to explore them.
No such alternatives exist for attorneys appointed under Rule 608.
By the time an appointment occurs, the court has already determined that
the individual cannot afford legal representation. Thus, there is no realistic
expectation (or possibility) that the client will be capable of paying the
appointed attorney.
The attorney’s compensation must come from the
State. Indeed, the law acknowledges this reality by requiring the State to
pay for the attorneys it appoints.
In short, Myrtle Beach is distinguishable and does not affect the
quasi-contract analysis in the present situation.
Unlike the city in that
case, the State has a statutory obligation to pay for the services of
appointed attorneys. In addition, the hospital in Myrtle Beach had other
potential sources of payment, which are not available for appointed
10
attorneys. Thus, Myrtle Beach has no bearing on this issue.
The State clearly benefits from the legal representation provided by
appointed attorneys in the Rule 608 system. The work of those attorneys
allows the State to fulfill its statutory obligation to provide representation to
indigents in certain settings, and it also promotes the fairness and
efficiency of the State’s court system. These are direct and significant
benefits realized by the State, and there is simply no basis for any other
conclusion. Therefore, the first two elements of a quasi-contract exist in
this situation.
(2)
Inequitable Retention of the Benefit
The third element of a quasi-contract claim is also present. As
discussed above, the State receives substantial benefits from the work of
the appointed attorneys. And yet, under the current scheme, the State
manages to avoid paying for those benefits. The State simply takes the
time and effort of the appointed attorneys and then leaves them with
nothing to show for their labors. This is the unfair arrangement the Bar’s
petition seeks to end.
As a threshold matter, it is important to note once again that
attorneys do not volunteer for Rule 608 appointments. The attorneys of
South Carolina devote considerable time and effort to various pro bono
cases and projects every year, and those things are voluntary. But Rule
608 appointments are different. To borrow a famous movie phrase, those
appointments are “offers they can’t refuse.” The State simply forces the
11
appointments upon the attorneys as a condition of a license to practice law
in South Carolina.
This situation might not be inequitable (or, at least, that point might
be debatable) if the State fulfilled its obligation to pay the attorneys a fair
amount for their work. Under the current system, however, the State does
not compensate the attorneys at all. Nevertheless, the State continues to
make the appointments and to accept the benefits of the attorneys’ efforts.
Simply put, the State takes the time, effort, and skills of the appointed
attorneys, but gives nothing to them in return.
If the attorneys’ participation in the Rule 608 system were
voluntary, the State’s failure to pay for their services would not be
inequitable.
In that scenario, the State would be the recipient of a
gratuitous benefit, and there would be no expectation of any payment.
Again, though, this is not the system that exists. Rule 608 appointments
are involuntary, and the benefits they give to the State come at a price –
one that the State is required to pay.
Equity and basic public policy dictate that an attorney should
receive compensation for his or her work.
See Eleazer v. Hardaway
Concrete Co., 281 S.C. 344, 315 S.E.2d 174 (Ct. App. 1984) (“[a]s a
matter of common justice and as a matter of public policy, Courts must
protect attorneys when their conduct has been . . . fair . . .”) (quoting Adair
v. First Nat’l Bank, 139 S.C. 1, 7, 137 S.E. 192 (1924)). The professional
services of appointed attorneys should be no different. The appointed
12
cases require the same time and skills for which attorneys charge other
clients, and there is no expectation that the attorneys should represent
those clients without compensation. Indeed, if those clients refused to pay
for the attorneys’ services, the attorneys would have valid legal claims for
payment. Should it be any different simply because the “person” who
refuses to pay is the State?
The answer is obvious.
Yet, the State
perpetuates this double-standard through its (as of yet) unchecked refusal
to pay for the services it obtains from appointed attorneys.
The work of the appointed attorneys allows the State to fulfill its
statutory and constitutional obligation to provide representation for indigent
litigants in certain settings. It also eases the burden on the State’s courts
and promotes judicial efficiency. The State receives and retains those
significant benefits, but it does not currently pay for them. This is the very
definition of an inequitable retention of a benefit, and it certainly satisfies
the final element of a quasi-contract claim.
(3)
Conclusion
The State benefits directly from the efforts of the attorneys
appointed to handle cases under Rule 608, and the State should be
required to pay for those benefits. In fact, the State is required to pay for
the work of the appointed attorneys; it simply is not doing so under the
current system. This is why a change in Rule 608 is necessary.
If the appointed attorneys were to assert a quasi-contract claim
against the State, they would be successful and entitled to relief. Although
13
this Court is not in a position to award the attorneys of South Carolina
reimbursement for past unpaid efforts, the Court can certainly prevent
future unjust enrichment to the State by granting the South Carolina Bar’s
petition to replace Rule 608. Based on the arguments and authorities
discussed above, the Associations urge the Court to do just that.
II.
THE STATE OF SOUTH CAROLINA HAS AN IMPLIED-INFACT CONTRACT WITH THE ATTORNEYS IT APPOINTS
FOR INDIGENTS, AND THE COURT MUST REPLACE
RULE 608 TO ENSURE APPOINTED ATTORNEYS
RECEIVE COMPENSATION.
The State requires attorneys to provide legal services to its indigent
citizens in certain types of cases. As discussed above, the State receives
direct benefits from those legal services. The attorneys undertake the
representation with the knowledge that failing to do so could result in the
loss or suspension of their law licenses. But the attorneys also represent
the indigent clients with an understanding (based on, inter alia, the laws
and court rules of South Carolina) that the State will compensate them for
their legal work. This arrangement gives rise to an implied-in-fact contract
between the State and the appointed attorneys, which serves as another
basis for granting the South Carolina Bar’s petition.
An implied-in-fact contract arises when one party requests the other
perform services for his benefit. In Stanley Smith & Sons v. Limestone
College, the Court of Appeals clarified the elements required to prove an
implied-in-fact contract. 283 S.C. 430, 322 S.E.2d 474 (1984).
14
Specifically, the conduct of the parties must demonstrate: (1) consideration
between the parties, (2) an agreement that one party provide services to
the other, and (3) an understanding that the party providing services will
be compensated. 283 S.C. at 434, 322 S.E.2d at 477. As an examination
of the current situation reveals, the relationship between the State and the
appointed attorneys satisfies this test.
Consideration exists in this arrangement because both sides enter
into it with expectations of some benefit.
The State actually receives
benefits in having attorneys represent its indigent citizens. As previously
discussed, this system makes the State’s courts fairer and more efficient,
and it also satisfies the State’s statutory obligations to appoint attorneys
for certain indigent litigants. The attorneys’ consideration for providing the
services is a reasonable expectation of compensation for their professional
services.
Even though the attorneys are not currently receiving the
promised payments, they reasonably expect the State to make them.
Thus, there is consideration between the parties to support the presence
of an implied-in-fact contract.
The second element is also present because an agreement exists
in which the attorneys provide services to the State.4
Granted, the
“agreement” is not a voluntary one in the traditional sense of that term.
Participation in the Rule 608 system is mandatory for most attorneys, and
they face potential sanctions for failing to fulfill their obligations. But the
4
As discussed above in Section I, it would be erroneous to suggest that the
attorneys provide services solely to the indigents. The State clearly benefits from
the attorneys’ services, which they provide at the State’s behest.
15
system is nevertheless an agreement because both sides enter into it with
duties and expectations. The State expects the attorneys to use their
skills to represent the indigents and has a duty to pay for the legal
representation. The attorneys have a duty to represent their appointed
clients and reasonably expect the State to honor its duty to pay. Thus, the
second element of the implied-in-fact contract test is also satisfied.
Similarly, the third element exists because the attorneys have a
reasonable expectation of payment for the services they provide for the
State. The analysis and outcome might be different if the attorneys truly
volunteered for appointments to represent indigent litigants. In that case,
the attorneys could not reasonably expect to be paid by anyone. They
would be true volunteers undertaking pro bono work, just as many South
Carolina attorneys do in other contexts. The actual situation is different,
however. The attorneys have no choice but to accept the appointments,
and the involuntary nature of the arrangement justifies an expectation that
the attorneys will be compensated for the time and skills they expend. 5
Significantly, though, the expectation of payment is not one-sided.
The State also contemplates compensating the attorneys for their work on
appointed cases. In its annual appropriations bills, the General Assembly
has included funds to pay for indigent appointments in both civil and
criminal cases. Constitutional provisions, statutes, and court rules also
The situation is loosely analogous to a military draft. Draftees are “forced” into
military service, and there are penalties for a refusal to serve. Yet, the draftees
still reasonably expect payment for their work, and the government is obliged to
provide it.
5
16
indicate attorneys should be paid for their services in appointed cases.
See, e.g., S.C. Const. art. I, § 13; S.C. CODE ANN. § 17-27-60 (2007); Rule
41, SCRFC. As these authorities demonstrate, the State acknowledges
the appointed attorneys are entitled to (and should receive) payment for
their services. Thus, both sides of the arrangement operate under that
assumption. As a result, the third element of the implied-in-fact contract
test is satisfied.
Furthermore, South Carolina’s statute of frauds poses no problem
to this legal theory. The statute of frauds requires contracts for services
that will take longer than a year to perform to be in writing. S.C. CODE ANN.
§ 32-3-10 (2007). In appointed cases, attorneys typically must provide
their services for more than a year. On a surface level, therefore, the
statute of frauds might appear to be a “defense” to the implied-in-fact
contract analysis. Because the statute of frauds was designed to prevent
fraud, however, there are exceptions to this rule for situations where using
it would result in unjust enrichment.
Here, applying the statute of frauds in the context of legal
representation would lead to unjust enrichment.
Rule 608 requires
attorneys to fully represent their clients, or pay another attorney to do so.
This requirement often means the attorneys will have the appointed cases
for longer than one year, simply because those types of matters rarely
conclude within a shorter time. But due to their Rule 608 and ethical
obligations, the attorneys must continue to represent their appointed
17
clients no matter how it takes to complete the cases. By the time the
cases are over, the attorneys have usually put considerable time and effort
into them and, again, the State has benefited from those labors. Thus,
allowing the State to oppose compensation for the attorneys based on a
statute of frauds argument would lead to an inequitable result – i.e., the
retention of the benefits by the State without paying for them.
In addition, “full performance” is another exception to the statute of
frauds in this situation. Even when the work cannot be performed entirely
within one year, the fact that it is completed in full (albeit after more than
one year) can make the statute of frauds inapplicable. See Hughes v.
Edwards, 265 S.C. 529, 220 S.E.2d 231 (1975).
In Rule 608
appointments, the attorneys must complete their work in full before the trial
court can relieve them from the representation.
Thus, this exception
necessarily applies to Rule 608 appointments.
Finally, the order of appointment issued by the trial court
memorializes the contract and takes it outside the scope of the statute of
frauds. Significantly, the clerk of court signs the appointment orders. This
means the appointment order is a writing that sets forth the agreement and
is signed by an agent of the State. As a result, the use of appointment
orders renders moot any statute of fraud concerns.
The implied-in-fact contract analysis applies to this situation and
supports a conclusion that the appointed attorneys are entitled to payment
for their services. Thus, this theory provides still another basis for granting
18
the South Carolina Bar’s petition and replacing Rule 608.
III.
UNDER THE EQUITABLE THEORY OF PROMISSORY
ESTOPPEL, THE STATE OF SOUTH CAROLINA MUST
COMPENSATE ATTORNEYS FOR THEIR LEGAL
SERVICES IN APPOINTED CASES.
The concept of promissory estoppel also supports compensating
attorneys appointed under Rule 608.
A party asserting a promissory
estoppel claim must demonstrate: (1) an unambiguous promise, (2)
reasonable reliance upon that promise, (3) the reliance is expected and
foreseeable by the promising party, and (4) an injury resulting from the
reliance. Rushing v. McKinney, 370 S.C. 280, 295, 633 S.E.2d 917, 925
(Ct. App. 2006). All of those elements are present in this situation.
As discussed above, the State clearly recognizes its obligation to
pay appointed attorneys for their services. See, e.g., 2008-9 Ann. Appr.
Act, H. 4800, 117th Gen. Assem. Part IB, §47 ( S.C. 2008); S.C. Const.
art. I, §13; S.C. CODE ANN. §17-27-60 (2007); Rule 41, SCRFC.
The
codification of this duty (and/or the appropriation of funds for fulfilling it)
makes the “promise to pay” unambiguous. The laws in which it appears
are required to be certain, clear, and made so that people can understand
them. For the State to argue the promise is ambiguous, therefore, the
State would have to attack its own legislative acts.
By the same reasoning, the presence of the “promise to pay” in the
laws of South Carolina makes the attorneys’ reliance upon that promise
reasonable and foreseeable by the State. If attorneys cannot reasonably
19
rely upon the State’s assurances expressed in its laws, what can they rely
upon? And if the State does not intend (or cannot foresee) that others will
rely on those assurances, why make them at all? There are no answers to
those questions, and thus, the second and third elements of promissory
estoppel are satisfied.
The existence of the final element is obvious.
The appointed
attorneys expend their time, skills, and resources to represent their
indigent clients at the behest of the State. But the attorneys receive no
compensation for that work. As a result, the attorneys lose a portion of
their livelihood. This certainly constitutes an injury sustained as a result of
the attorneys’ reliance.
Promissory estoppel applies to this situation and requires the State
to compensate attorneys for their work on appointed cases. Since the
State is not currently meeting this requirement, the Court should grant the
South Carolina Bar’s petition and replace Rule 608.
IV.
REPLACING RULE 608 WILL HELP AVOID FUTURE
DEBATE AND LITIGATION REGARDING THIS ISSUE.
Obviously, the claims and remedies discussed in this brief are
theoretical in nature right now. The Associations are not asserting any
claims for relief in this Court; they are simply supporting the South Carolina
Bar’s petition. But the analysis is important to consider because it gives a
preview of what the future might hold if Rule 608 is not replaced at this
time.
20
The South Carolina Bar’s petition represents the “first option” for
seeking the replacement of Rule 608. By granting the petition, the Court
would force the legislature to take action. The General Assembly would
have to either create and fund agencies to handle indigent representation,
or provide and guarantee adequate funding for an appointment system.
Either way, the current problem would be resolved without further court
proceedings.
If, on the other hand, the General Assembly is not forced to address
and solve this problem, South Carolina’s attorneys may have no choice but
to pursue legal actions against the State. Essentially, the attorneys would
claim that the State has unjustly retained the benefits of their efforts in
appointed cases and that they should recover the value of those benefits.
Consequently, the legal theories discussed in this brief would no longer be
theoretical exercises.
They would suddenly be viable (and potentially
large) claims against the State. While those claims and actions could be
successful (as this brief has argued), they could also lead to problems for
both sides of the dispute.
First, the State’s potential exposure would be sizable and
unpredictable. Different attorneys would not all have the same amounts of
appointed cases. In addition, the average billable rates charged would
vary greatly among the attorneys. If successful legal claims were asserted,
the measure of damages would be the losses of each individual attorney
(i.e., that attorney’s average billable rate multiplied by the amount of time
21
spent on the case).
Thus, the State could be incurring legal bills at
unexpectedly high rates as long as the Rule 608 issue remains unresolved.
All of these factors and differences would make it nearly impossible for
anyone to estimate the total amount due to the state’s appointed attorneys
(assuming a favorable outcome on the claims asserted). And even if the
attorneys’ actions were unsuccessful, the State would still incur significant
legal expenses defending against those claims. From a fiscal planning
standpoint, therefore, legal claims by appointed attorneys could be
potentially disastrous for the State.
Second, legal actions by the state’s attorneys could strain the
relationships between those attorneys and the State, including its courts.
As a result, efforts to solve other problems facing South Carolina’s judicial
system could be hampered. This is certainly not a situation that anyone on
either side of the debate would want to see, but it could happen if litigation
resulted from the Rule 608 issue.
Finally, litigation over this issue would almost certainly generate
publicity that would be harmful to the legal profession as a whole. The
public is already wary of attorneys and the courts, and a fight over money
(as it would likely be portrayed by the media) would do nothing to improve
that image. This is especially true given the current economic climate,
which would only contribute to the public’s skepticism and frustration with
the dispute. Again, this is not a desirable result, but it is one that could
easily occur if continued legislative inaction necessitates future litigation.
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As the South Carolina Bar suggests in its brief, and as the
Associations’ members have made clear, the current system of Rule 608
appointments has reached a breaking point. Something must be done to
correct the burdensome and inequitable system that has resulted from the
General Assembly’s failure to respond to Rule 608 in its nearly nine-year
existence. The system as it currently exists simply cannot continue any
longer.
Like the South Carolina Bar, the Associations would very much
prefer to see the Court address the matter now by granting the petition and
putting the proverbial ball back into the legislature’s court.
That move
would eliminate (or at least reduce) the likelihood of future litigation over
this issue and the problems inherent in such litigation. Granting the petition
would also allow the General Assembly to craft its own solution to this
issue. This would be an equitable result, as it would force the State to fix
the problem it has created by failing to compensate appointed attorneys. It
would also be the result that would best serve the interests of the legal
community as whole.
CONCLUSION
For all of these reasons, as well as those set forth in the South
Carolina Bar’s brief, the Associations urge the Court to grant the petition
and replace Rule 608 with the new version proposed by the Bar.
(Signature on next page.)
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Respectfully submitted,
_______________________________
R. Hawthorne Barrett
Turner Padget Graham & Laney P.A.
P.O. Box 1473
Columbia, SC 29202
(803) 227-4219
tbarrett@turnerpadget.com
Attorneys for Amici Curiae:
Abbeville County Bar Association
Aiken County Bar Association
Allendale County Bar Association
Calhoun County Bar Association
Charleston County Bar Association
Chester County Bar Association
Clarendon County Bar Association
Dillon County Bar Association
Fairfield County Bar Association
Florence County Bar Association
Greenville County Bar Association
Horry County Bar Association
Lee County Bar Association
Lexington County Bar Association
Marion County Bar Association
Richland County Bar Association
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