2017 Case Notes
March 13, 2017
The South Carolina Court of Appeals recently clarified the circumstances under which a lawyer can represent himself and when a member of his law firm can represent him. In Brooks v. S.C. Commission on Indigent Defense,[i] a lawyer appealed the trial court’s disqualification of his wife and law partner from representing him and the court’s refusal to allow himself to proceed pro se.
Brooks handled criminal court-appointed cases for the South Carolina Commission on Indigent Defense. The Commission suspected Brooks of overbilling, and filed a complaint with the South Carolina Bar’s Office of Disciplinary Counsel.[ii] During the investigation, it was discovered that Brooks regularly allowed his wife and law partner to handle cases exclusively assigned to Brooks.[iii] Wife stated to investigators that she regularly handled and billed under Brooks’ name. This investigation resulted in a public reprimand by the South Carolina Supreme Court and a finding that Brooks had been overpaid $61,826.40 due to “overbilling on indigent defense cases.”[iv]
Undeterred by the finding, Brooks requested that the overpayment be credited against monies allegedly owed but unpaid by the Commission on other indigent matters. When he was not paid the difference, Brooks filed a complaint against the Commission, seeking damages.[v] Brooks was originally represented by outside counsel, but the court granted their motion to be relieved. Brooks initially proceeded pro se, until Wife entered an appearance on Brooks’ behalf.[vi] At that point, the Commission moved to disqualify both Brooks and his wife as counsel of record pursuant to Rule 3.7 of the S.C. Rules of Professional Conduct. The trial court disqualified Wife and barred Brooks from representing himself pro se.[vii]
Because Rule 3.7 prohibits a lawyer who is a “necessary witness” from serving as an advocate at trial, the Court of Appeals upheld the disqualification of Wife. Wife was a “necessary witness” because the her “testimony is relevant to disputed, material questions of fact and there is no other evidence available to prove those facts.”[viii] The Court of Appeals detailed Wife’s expected testimony was directly related to overbilling allegations of the Commission. The Court of Appeals also found that no one could provide the “full extent of [Wife’s] involvement in [Brooks’] overbilling.”[ix]
The Court of Appeals then turned to the issue of whether Brooks, a licensed lawyer, could represent himself and testify at trial. As an issue of first impression in South Carolina, the Court of Appeals turned to other jurisdictions. The Court of Appeals recognized that the comments to Rule 3.7 of the ABA Model Rules—which version South Carolina adopted verbatim in 1990—stated “the rationales of the advocate-witness rule do not apply to the pro se lawyer-litigant.”[x] Recognizing a constitutional right to represent oneself, the Court of Appeals saw “no reason why the … right … should be curtailed for a pro se attorney.”[xi] Quoting a Massachusetts decision,[xii] the Court stated “[a]s a party litigant, … a lawyer could represent himself if he so chose …. A party litigant does not lose this right merely because he is a lawyer….”[xiii]
Interestingly, although it allowed Brooks to proceed pro se, the Court did not comment on the wisdom of a lawyer representing himself. Perhaps mindful of the adage about lawyers representing themselves, the Court chose to curtail its decision strictly to the issues raised on appeal.
Bruce Wallace practices with Nexsen Pruet’s business and consumer litigation group in Charleston. He represents a variety of banking and financial institutions in real estate litigation, commercial litigation, and mortgage foreclosures. He also represents insurers and corporate clients in bad faith and coverage issues, professional liability, business litigation (including disputes involving partnerships, limited liability companies, and closely held companies), and probate litigation matters (including trusts and estates).