Opinion
August 13, 2003.
ORDER
Pursuant to Article V, § 4, of the South Carolina Constitution, Rule 402, SCACR, is amended to read as shown in the attachment to this order. This amendment shall be effective September 1, 2003, and shall apply to all bar admissions matters on or after that date with the following exceptions:
(1) The application filing periods and application fees under the current rule shall apply to the February 2004 Bar Examination.
(2) For applicants who have failed the Bar Examination five or more times on the effective date of this amendment, the two-year waiting period to re-take the Bar Examination under Section (j)(2) shall not apply until the applicant fails a Bar Examination given on or after July 2003.
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.
RULE 402
ADMISSION TO PRACTICE LAW
(a) Board of Law Examiners. (1) Members.
The Board of Law Examiners shall consist of seven (7) members of the South Carolina Bar who are actively engaged in the practice of law in South Carolina and who have been active members of the South Carolina Bar for at least seven (7) years. The Board members shall be appointed by the Supreme Court for three (3) year terms and shall be eligible for reappointment. At least one member shall be appointed from each Congressional District. In case of a vacancy on the Board, the Supreme Court shall appoint a member of the South Carolina Bar to serve the remainder of the unexpired term.
(2) Associate Members.
The Supreme Court may appoint associate members to assist the members of the Board. These associate members must be members of the South Carolina Bar who are actively engaged in the practice of law in South Carolina and who have been active members of the South Carolina Bar for at least five (5) years. These associate members shall assist the members of the Board in preparing the essay Examinations and model answers, administering the Bar Examination, and grading the Examination, and shall have such additional duties as may be determined by the members of the Board. While the Supreme Court shall not be limited in whom it appoints, the members of the Board shall nominate persons to serve as associate members.
(3) Chair; Secretary.
The Supreme Court shall appoint a chair from among the members of the Board. The Clerk of the Supreme Court shall serve as secretary of the Board ex officio.
(4) Duties.
The Board of Law Examiners shall determine whether applicants for admission to the practice of law in South Carolina possess the necessary legal knowledge for admission. The members of the Board are authorized to make rules and regulations for conducting the Examination, including a list of the subjects upon which applicants may be tested and regulations providing for the accommodation of disabled applicants. These rules and regulations shall not become effective until at least ninety (90) days after they are approved by the Supreme Court.
(b) Committee on Character and Fitness.
(1) Members.
The Committee on Character and Fitness shall consist of five (5) members of the South Carolina Bar who shall be appointed by the Supreme Court for five (5) year terms. In case of a vacancy on the Committee, the Supreme Court shall appoint a member of the Bar to serve the remainder of the unexpired term.
(2) Chair; Secretary.
The Supreme Court shall appoint a chair and a secretary of the Committee from among the Committee's membership.
(3) Duties.
The Committee on Character and Fitness shall investigate and determine whether an applicant for admission to the Bar possesses the qualifications prescribed by this Rule as to age, legal education, and character. The applicant must establish to the reasonable satisfaction of a majority of the Committee that the applicant is qualified. In conducting investigations, the Committee may take and hear testimony, compel by subpoena the attendance of witnesses, and require the applicant to appear for a personal interview. Any member of the Committee may administer oaths and issue subpoenas. The Committee may adopt rules that shall become effective upon approval by the Supreme Court. In addition, the Committee shall perform the duties specified by Rule 33 of the Rules for Lawyer Disciplinary Enforcement contained in Rule 413, SCACR, and any other duties as directed by the Supreme Court.
(c) Qualifications for Admission.
No person shall be admitted to the practice of law in South Carolina unless the person:
(1) is at least twenty-one (21) years of age;
(2) is of good moral character;
(3) has received a JD or LLB degree from a law school which was approved by the Council of Legal Education of the American Bar Association at the time the degree was conferred. An approved law school includes a school that is provisionally approved by the Council;
(4) has been found qualified by the Committee on Character and Fitness;
(5) has passed the Bar Examination given by the Board of Law Examiners;
(6) has received a scaled score of at least seventy-seven (77) on the Multistate Professional Responsibility Examination administered by the National Conference of Bar Examiners. If the score was obtained prior to the filing of the application, the MPRE must have been taken within four (4) years of the date on which the application is filed;
(7) is not disbarred, suspended from the practice of law, or the subject of any pending disciplinary proceeding in another jurisdiction;
(8) has successfully completed the Bridge the Gap Program sponsored by the South Carolina Bar; and
(9) has paid the fees and taken the oath or affirmation specified by this rule.
(d) Application to Take the Bar Examination.
(1) Filing Application; Fees.
Any person desiring to take the Bar Examination shall file an application, in duplicate, with the Clerk of the Supreme Court. The application form shall be approved by the Committee on Character and Fitness. Applications shall be accepted from December 1 to January 31 for the July Examination and from August 1 to September 30 for the February Examination. The non-refundable application fee shall be:
(i) $400 for applications filed from December 1 to December 31 or from August 1 to August 31.
(ii) $750 for applications filed during the remainder of the application periods.
If the applicant has been admitted to practice law for more than one (1) year in another state or the District of Columbia at the time the application is filed, the applicant shall file one (1) additional copy of the application along with an additional fee of $500. A portion of this fee will be used to obtain a character report from the National Conference of Bar Examiners.
An application will not be considered filed until both the fully completed application and fee(s) are received by the Clerk of the Supreme Court. The application fee(s) shall be made payable to the Clerk of the Supreme Court of South Carolina, and the application and fee(s) shall be sent to the Clerk, Supreme Court of South Carolina, Post Office Box 11330, Columbia, South Carolina 29211. An applicant who withdraws or fails to sit for an Examination shall not be entitled to a refund of the application fee(s) or to have the application fee(s) credited to a later Examination. An applicant who has failed the Examination must comply with the requirements of section (i) below.
For the purpose of this rule, filing means: (1) delivering the document to the Clerk of the Supreme Court; or (2) depositing the document in the U.S. mail, properly addressed to the Clerk of the Supreme Court, with sufficient first class postage attached. The date of filing shall be the date of delivery or the date of mailing.
(2) Duty to Keep Application Current.
Until they have been admitted, applicants are under a continuing obligation to keep their applications current and must update responses whenever there is an addition to or a change to information previously filed with the Clerk. These updates must be made in writing and must include all relevant documentation.
(3) Special Accommodations for Disabled Applicants.
An applicant needing special accommodations for the Bar Examination due to a disability shall submit a written request for such accommodations to the Board of Law Examiners. The procedure and forms to be used in making a written request shall be specified in the Rules of the Board of Law Examiners. Unless the chair of the Board determines there is good cause to allow a late request, written requests for special accommodations must be submitted by November 1 for the February Examination and April 1 for the July Examination.
(e) Determination by Committee On Character and Fitness.
The Committee on Character and Fitness shall consider the application and any further information it deems relevant to determine if the applicant has the requisite qualifications and character to be admitted to practice law in this state. The Committee shall notify the Clerk of the Supreme Court whether it finds the applicant qualified or unqualified and, if found to be unqualified, the Clerk shall send the applicant a letter notifying the applicant of this finding. An applicant found to be unqualified shall not be allowed to sit for the Examination. If the Committee has not made a determination of the applicant's qualification by July 1 for the July Examination or February 1 for the February Examination, the applicant shall be allowed to sit for the Examination, and the Committee shall make its determination after the Examination is administered.
(f) Determination of Fitness of Certain Law Students.
A student enrolled in a law school approved or provisionally approved by the Council of Legal Education of the American Bar Association who has a character problem that might disqualify the student from being admitted to practice law may have the matter resolved by filing a provisional application. The application shall be made on a form approved by the Committee on Character and Fitness and shall be filed in duplicate with the Clerk of the Supreme Court. Each request must be accompanied by a non-refundable fee of $100. The Committee may begin an immediate investigation of the individual's character and shall promptly notify the individual of its determination. No adverse inference concerning an applicant's character and fitness shall be drawn because the applicant filed a provisional application, nor does the filing of a provisional application relieve an applicant from fully complying with the normal application process.
(g) Review by Supreme Court of Fitness Determination; Reapplication.
Any applicant dissatisfied with the determination of the Committee on Character and Fitness may petition the Supreme Court for review within fifteen (15) days of the date of the letter notifying the applicant of the Committee's determination. The petition shall comply with the requirements of Rule 224, SCACR, to include the filing fee required by that rule. An applicant who is found not to be qualified by the Committee or whose petition for review of the Committee's determination has been denied may not reapply for admission until two (2) years after the date of the letter notifying the applicant of the Committee's determination.
(h) False and Misleading Information by Applicants.
An applicant who knowingly provides false or misleading information in an application (to include any attachments to the application), document, or statement submitted or made to the Committee on Character and Fitness, the Board of Law Examiners, or the staff of the Court shall be guilty of contempt of the Supreme Court of South Carolina and may be punished accordingly. In addition, if it is determined that an applicant has knowingly submitted false or misleading information, the Court may bar the applicant from reapplying for up to five years. Further, if the applicant has already been admitted, the Court may vacate the admission or discipline the lawyer under Rule 413, SCACR. For the purpose of this rule, false or misleading information shall also include the knowing omission of material information by an applicant in the application (to include any attachments to the application) or in response to an inquiry by the Committee, Board or staff of the Court.
(i) Bar Examination.
(1) When Given.
The Bar Examination shall be conducted twice each year on the last consecutive Monday, Tuesday, and Wednesday in February and July.
(2) Content; Grading; Passing.
The Bar Examination shall consist of seven (7) sections. Six (6) of these sections shall be composed of essay questions prepared by the Board of Law Examiners. The Chair of the Board shall assign a member of the Board to prepare and grade or supervise the preparation and grading of each essay section. The Multistate Bar Examination shall be the seventh (7th) section. To pass the Multistate portion of the Examination, an applicant must attain a scaled score of at least 125. To pass an essay section, the applicant must obtain a score of seventy (70). Once an applicant reaches seventy (70) points on an essay section, that section will receive a passing grade and will not be graded further. An applicant must pass six (6) of the seven (7) sections to pass the Bar Examination; provided, however, that an applicant who receives a scaled score of 110 or less on the Mulitstate Bar Examination shall fail the Bar Examination without any grading of the essay questions. The Board shall notify the Clerk of the Supreme Court of the results of the essay sections.
(3) Anonymous Grading; Prohibited Comments in Answer Sheets and Booklets.
Applicants taking the Bar Examination shall be assigned an identification number that shall be used for the purposes of taking and grading the Examination. Except for the identification number and any other information the applicant may be directed to provide by those administering the Examination, answer sheets or booklets for the Examination shall contain no other information revealing the identity of the applicant. Any reference to the applicant's economic status, social standing, employment, personal hardship or other extraneous information in the answer sheets or booklets is prohibited.
(4) Notification of Results.
The Clerk of the Supreme Court shall send a letter to each applicant advising the applicant whether the applicant passed or failed the Bar Examination. Additionally, the names of those passing the Examination and the identification numbers of those failing the Examination shall be posted on the South Carolina Judicial Department Website.
(5) Review of Failed Essay Sections.
Within fifteen (15) days of the date of the letter of notification, an applicant failing the Examination may, in writing, request permission to review the essay questions, model answers, and the applicant's answers for each essay section that the applicant failed. The request shall be accompanied by a filing fee of $25. The review shall be conducted in the Bar Admissions Office in Columbia, South Carolina, and the applicant will be notified of the date and time when the review will be conducted. No review or inspection of the Multistate Bar Examination will be permitted nor will the applicant be allowed to copy or remove the essay questions, the model answers, or the applicant's answers. An applicant who receives 110 or less on the Multistate Bar Examination shall not be allowed any review of the essay questions, model answers or the applicant's answers.
(6) Re-grading.
After reviewing an essay section, an applicant who feels an error has been made in grading may petition the Supreme Court to have the section re-graded. An original and two (2) copies of the petition, accompanied by a filing fee of $50, must be filed with the Clerk of the Supreme Court within ten (10) days of the applicant's review of the essay section and must enumerate the alleged errors in grading. No briefing or argument is permitted. The only identifying mark to be placed on the petition is the identification number previously assigned to the applicant. Any reference to the applicant's other scores, economic status, social standing, employment, personal hardship, or other extraneous information is prohibited. If the petition is granted, the section shall be re-graded by the member or associate member assigned to grade that section, and the Clerk shall notify the applicant of the results of the re-grading.
(7) Request for Verification of Multistate Bar Examination.
While no review or inspection of the Multistate Bar Examination (MBE) will be permitted, an applicant may request a hand grading of the MBE. Any such request must be filed with the Clerk of the Supreme Court along with the applicable fee within fifteen days of the date of the letter of notification in (4) above.
This fee is currently seven dollars ($7) and should be paid by check payable to "ACT."
(8) Prohibited Contacts.
An applicant shall not, either directly or through an agent, contact any member or associate member of the Board of Law Examiners or any member of the Supreme Court regarding the questions on any section of the Bar Examination, grading procedures, an applicant's answers, or review or re-grading of any Examination. This provision does not prohibit an applicant from seeking a review, re-grading or verification in the manner provided by (5), (6) or (7) above.
(9) Cheating on the Bar Examination.
An applicant who cheats, aids or assists another applicant in cheating on the Bar Examination, or attempts to cheat or aid or assist another in cheating, shall be guilty of contempt of the Supreme Court of South Carolina and may be punished accordingly. In addition, if it is determined that an applicant has cheated or aided or assisted another in cheating, the applicant shall fail the examination and the Court may prohibit the applicant from reapplying for up to five years. Further, if the applicant has already been admitted, the Court may vacate the admission or discipline the lawyer under Rule 413, SCACR.
(j) Re-Examination.
(1) Application and Filing Fees.
Any applicant who has failed to pass the Bar Examination may apply to be re-examined. The application shall be made on a form approved by the Committee on Character and Fitness. The filing periods and filing fee(s) applicable to initial applications shall be applicable to applications for re-examination. Any request for special accommodations on the Examination must be submitted in the manner provided by section (d)(3) above.
(2) Special Requirements for Applicants Who Have Failed the Bar Examination Three or More Times.
An applicant who has failed the Examination three or four times shall not be eligible to sit for a Bar Examination until at least one year following the administration of the last failed Examination. An applicant who has failed the Examination five or more times shall not be eligible to sit for the Bar Examination until at least two years following the administration of the last failed Bar Examination. Further, any applicant who has failed the Bar Examination three or more times must complete a course of study before being eligible to retake the Bar Examination. A new course of study must be completed after each subsequent failure. The course of study shall consist of one of the following:
(i) at least twelve (12) semester hours, or its equivalent, of classes at a law school approved or provisionally approved by the Council of Legal Education of the American Bar Association. The courses must be related to the subjects that are tested on the Bar Examination, and the applicant must complete all course requirements that would be required of a law student including a passing grade for the course. The supplemental application shall include certification from the law school that the applicant has completed the required number of hours, or if the course of study has not been completed at the time the supplemental application is filed, certification from the law school that the applicant is currently enrolled in courses which will give the applicant sufficient hours to complete the course of study before the Examination. The law school must provide certification that the required number of hours have been completed before the applicant will be re-examined.
(ii) study under the direct supervision of an attorney for at least twenty (20) hours per week for at least six months immediately preceding the Examination. The supervising attorney must be an active member of the South Carolina Bar who has been admitted to practice for at least five (5) years and is engaged in the active practice of law in South Carolina. The proposed course of study must specify the topics to be covered, the books and materials to be used, and the dates and locations of study, and must be submitted by the supervising attorney to the Board of Law Examiners for its approval. For the July Examination, the proposed course of study must be submitted not later than December 15. For the February Examination, the proposed course of study must be submitted not later than July 15. The Board of Law Examiners may approve, disapprove or modify the proposed course of study to include increasing the number of hours required. The supplemental application shall include certification from the supervising attorney that the applicant is current on the approved course of study. The supervising lawyer must provide certification that the applicant has completed the course of study before the applicant will be re-examined.
(k) Admission.
An applicant who has completed all of the requirements of (c) above may be admitted to practice law by paying $50 and taking and subscribing to the following oath or affirmation:
I do solemnly swear (or affirm) that:
I am duly qualified, according to the Constitution of this State, to exercise the duties of the office to which I have been appointed, and that I will, to the best of my ability, discharge those duties and will preserve, protect and defend the Constitution of this State and of the United States;
I will maintain the respect due to courts of justice and judicial officers;
I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defenses except those I believe to be honestly debatable under the law of the land; but this obligation shall not prevent me from defending a person charged with crime;
I will employ for the purpose of maintaining the causes confided to me only such means as are consistent with trust and honor, and will never seek to mislead the judge or jury by an artifice or false statement of fact or law;
I will respect the confidence and preserve inviolate the secrets of my client, and will accept no compensation in connection with a client's business except from the client or with the client's knowledge and approval;
I will abstain from all offensive personalities, and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;
I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any person's cause for lucre or malice;
[So help me God.]
The oath or affirmation shall be administered in open Court and all persons admitted to the Bar shall sign their names in a book, kept for that purpose, in the office of the Clerk of the Supreme Court. Applicants shall be notified of the date and time when they are to take the oath or affirmation.
(l) Failure to be Admitted.
(1) More than One (1) Year.
An applicant who is not admitted within one (1) year of the date of the letter advising the applicant that the applicant has passed the Bar Examination must file a supplemental application with the Clerk of the Supreme Court. The supplemental application shall be on a form prescribed by the Committee on Character and Fitness, and the applicant may not be admitted to the South Carolina Bar unless the Committee makes a re-determination that the applicant is qualified. The filing shall be accompanied by a fee of $100.
(2) More than Two (2) Years.
An applicant who is not admitted within two (2) years of the date of the letter advising the applicant that the applicant has passed the Bar Examination may not be admitted without retaking the Bar Examination. The applicant must file a new application and pay the application fee(s) specified in section (d) above. On motion based on extraordinary circumstances, the Court may allow the applicant to be admitted without retaking the Bar Examination. The motion shall comply with the requirements of Rule 224, SCACR, to include the filing fee specified by that rule. If the applicant is granted permission to be admitted without retaking the Examination, the applicant shall pay a fee of $100.
(m) Admission of Certain Law Professors.
A person serving as the Dean or as a tenured professor of the University of South Carolina School of Law may be admitted to practice law in this State without taking the Bar Examination (section (c)(5) above), the Multistate Professional Responsibility Examination (section (c)(6) above), or the Bridge the Gap Program (section (c)(8) above) if the Dean or professor:
(1) has been admitted to practice law in the highest court of another state or the District of Columbia for at least five (5) years;
(2) has been a full-time and continuous member of the faculty of the Law School with the rank of assistant professor of law or higher for the previous three (3) or more complete academic years; and
(3) has been recommended for admission by the Dean of the Law School, or in the case of the Dean, by the President of the University of South Carolina.
The application for admission shall be made on a form prescribed by the Committee on Character and Fitness, and shall be filed in triplicate with the Clerk of the Supreme Court. The application shall be accompanied by a nonrefundable application fee of $400. A portion of this fee will be used to obtain a character report from the National Conference of Bar Examiners. The Dean or professor must comply with all other requirements of section (c) above. If found qualified by the Committee on Character and Fitness, the Dean or professor shall be admitted upon taking the oath and paying the fee specified by section (k) above.
(n) Confidentiality.
The files and records maintained by the Board of Law Examiners, the Committee on Character and Fitness, and the Clerk of the Supreme Court relating to Bar applications, Examinations (including review and re-grading), and admissions shall be confidential, and shall not be disclosed except as necessary for the Board, the Committee or the Clerk to carry out their responsibilities. The Board of Law Examiners, the Committee on Character and Fitness, and the Clerk may disclose information to the National Conference of Bar Examiners and to the Bar admission authorities in other jurisdictions, and may disclose the names of those persons who have passed the Bar Examination or those who are or will be admitted. The Supreme Court may authorize the release of confidential information to other persons or agencies.
(o) Immunity.
(1) The Board of Law Examiners, the Committee on Character and Fitness, and the members, associate members, employees, and agents of the Board or Committee, are absolutely immune from all civil liability for conduct and communications occurring in the performance of their official duties relating to the Examination, character and fitness qualification, and licensing of persons seeking to be admitted, readmitted or reinstated to the practice of law.
(2) Records, statements of opinion, testimony and other information regarding an applicant for admission, readmission or reinstatement to the Bar communicated by any entity, including any person, firm, or institution, to the Board of Law Examiners, the Committee on Character and Fitness, or to the members, associate members, employees or agents of the Board or Committee, are absolutely privileged, and civil suits predicated thereon may not be instituted.