Opinion
July 18, 2002.
ORDER
The South Carolina Bar has proposed amendments to Rules 14, 15, 17 and 19 of the Rules governing the Resolution of Fee Disputes Board contained in Rule 416, SCACR. Specifically, the Bar proposes the following: (1) amending Rule 14 to provide that a hearing panel should be appointed within ten days of the date a written request for a hearing is filed; (2) amending Rule 15 to give the circuit chair the authority to reassign a panel member or an entire panel if the panel or its members are delinquent in scheduling or attending a hearing; (3) amending Rule 17 to require that a copy of the panel decision be sent to the circuit chair as well as to each party; and (4) amending Rule 19 to require that copies of non-compliance orders be sent to the Bar and the Commission on Lawyer Conduct. The proposed amendments are approved. In addition, we have made several minor corrections to the rule that do not affect the substance of the rule. Pursuant to Article V, 4, of the South Carolina Constitution, we hereby amend Rules 5, 14, 15, 16, and 19 of Rule 416, South Carolina Appellate Court Rules, to reflect the changes set forth above. These amendments shall be effective September 1, 2002. The amended rules are attached.
IT IS SO ORDERED.
s/ Jean H. Toal, C.J.
s/ James E. Moore, J.
s/ John H. Waller, Jr., J.
s/ E.C. Burnett, III, J.
s/ Costa M. Pleicones, J.
AMENDMENTS TO RULE 416 RESOLUTION OF FEE DISPUTES BOARD
RULE 5. APPOINTMENT OF EXECUTIVE COUNCIL
From among the appointed Board members, the President shall appoint an Executive Council comprised of the following: One Executive Council member from each of the four Judicial Regions of the state and one additional member, appointed by the President, who will be chair of the Executive Council.
The chair shall have the authority to interpret these Rules until such time as the Executive Council considers the interpretation. The duties of the Executive Council will be to oversee and assist the functioning of the Board in the respective circuits of the state and to make recommendations to the Board of Governors as to procedures to be followed and rules to be amended.
Executive Council members should be experienced in the practice of law with not fewer than five (5) years active practice, and in the case of the chair, not fewer than ten (10) years active practice.
The terms of the Executive Council shall be for three (3) years. The expiration of a term will coincide with the date of expiration of the term of the incumbent President in the same year. Should the term of an Executive Council member on the Board expire and the member not be reappointed to the Board, the member's term on the Executive Council shall expire at the same time the member's term on the Board expires. In that event, the President shall appoint a replacement member to the Executive Council for the unexpired term. A member of the Executive Council may be reappointed.
The Executive Council shall meet at such times and places as may be called by the chair or by any four members thereof.
RULE 14. APPOINTMENT OF HEARING PANEL
When appropriate, a hearing panel of three (3) members shall be appointed by the circuit chair from the circuit panel in the judicial circuit where the principal place of practice of the attorney is located. A hearing panel should be appointed within ten (10) days of the date a written request for a hearing panel is filed with the circuit chair. The procedure for appointing hearing panel members shall be established by the Executive Council. One (1) member of the hearing panel shall be designated by the circuit chair as chair of the hearing panel. Upon appointment of the hearing panel, the parties to the proceeding shall be notified in writing by the circuit chair of the appointment of the hearing panel, giving the names and addresses of the members, including the identity of the chair, and further informing the parties involved that the hearing panel will resolve the dispute. Each party may proceed without counsel or be represented by counsel of the party's choosing and at the party's own expense. The Board is not required by law to appoint an attorney to represent a party; however, upon request of a party, a member of the Board may be appointed to represent the party before the hearing panel if, in the discretion of the circuit chair, good cause is shown. Good cause may include but is not limited to (1) the income level of the party, (2) the educational level of the party, or (3) interests of parity and justice.
RULE 15. PANEL HEARINGS
The chair of the hearing panel shall convene a hearing at a place within the circuit within forty-five (45) days of assignment by the circuit chair and at least thirty (30) days after giving notice to the parties by first class mail, with proper postage affixed, unless otherwise agreed by all parties and the panel members. The notice shall inform the parties that the hearing is de novo and that no reports or other information from the assigned member will be considered. The notice also shall inform the parties that they may have witnesses present and may present documentary evidence and should present all evidence they expect to present at the hearing.
If the circuit chair determines that a hearing panel or panel member is delinquent in scheduling or attending a hearing, the circuit chair has the authority to reassign the whole panel or reassign one or more panel members.
If a party or a witness cannot, for any reason, be present at the hearing, a written statement shall be submitted which shall be the complete statement of the party or witness. The statement shall be considered by the hearing panel as though the party or witness testified in person. If a party fails to appear, then the hearing panel shall render its decision based on the available testimony and documentation.
Conduct of the hearings shall be pursuant to such rules and procedures as the Executive Council may prescribe. While it is not necessary to follow strictly the rules of evidence as generally applied in circuit court, hearings should be conducted in conformance generally with them.
A party to a fee dispute may, at the party's own expense, cause any hearing by the panel to be recorded and transcribed. The tape recording of the hearing shall be the property of the Board. If a party has a hearing transcribed, the party shall, at the party's own expense, provide a copy of the transcript to the Board.
RULE 16. VOLUNTARY TERMINATION
Prior to the final decision of the Board, the party who initiated the process may terminate the process. (See Rule 16(e) for attorney-attorney disputes.) Termination of the process takes effect under the following conditions:
(A) When a hearing panel has been appointed, if the hearing panel chair is informed that an attorney-client dispute has been resolved between the parties to the dispute, the hearing panel chair shall require written acknowledgement from the initiating party.
(B) If no hearing panel has been appointed, notification that an attorney-client dispute has been resolved between the parties and written acknowledgement of this should be sent by the initiating party to the circuit chair.
(C) This written acknowledgement of withdrawal will have the effect of ending the availability of the procedure with prejudice to the initiating party as to that dispute so that a party who initially filed an application with the Board may not make a second filing on the same dispute after withdrawing the first filing. Upon notification by the initiating party of the withdrawal of the application, that party will be reminded of this. Should that party fail to make a written acknowledgement of the withdrawal, the Board shall proceed to resolve the matter without delay.
(D) Nothing herein is to be construed as limiting a party from filing an amended or supplemental form pertaining to the dispute, if requested or if needed, under such conditions as the hearing panel may provide or as may be established by the Executive Council.
(E) In disputes among attorneys, the application may be withdrawn only by mutual written consent of all parties involved.
RULE 17. HEARING PANEL
Upon conclusion of the panel hearing or hearings, the hearing panel members shall forthwith proceed to reach a decision and shall, within fifteen (15) days of the hearing, issue a written decision, including a factual statement of the controversy and the reasons for the decision reached. A decision of the majority of the hearing panel shall constitute a final decision of the Board. The written decision shall be filed with the Bar, and a copy sent to the circuit chair and each party to the dispute by first class mail, with proper postage affixed. Service by mail is complete upon mailing.
RULE 19. COMPLIANCE
The decision of the Board shall be final and binding upon the parties and shall be enforceable in any court of competent jurisdiction. The parties shall comply with the terms of the final decision within thirty (30) days after mailing. In case of non- compliance, the circuit chair shall issue a Certificate of Non-Compliance which may be entered as a judgment pursuant to Rule 58(a), SCRCP. The circuit chair shall forward all non-compliance orders to the Bar. This order shall then be forwarded to the Commission on Lawyer Conduct under Rule 8.3 of the Rules of Professional Conduct, Rule 407, SCACR.