In the practice of law, ethics and professionalism are two closely related, but distinct, standards. Ethical obligations concern the things that we cannot do; professional responsibilities are the things that we should do. This is the first installment of a new South Carolina Lawyers Weekly regular feature, Ethics & Professionalism, to help lawyers stay on top of these issues. Our E&P feature will cover bar discipline, malpractice suits, and other related topics.

Attorney malpractice can cause significant harm to a client. Harm, or damage, is also one of the elements a client has to prove in order to prevail on a malpractice suit against an attorney. Typically, the damage is losing a case that otherwise could have been won, or receiving a smaller settlement than could have been negotiated if the attorney had not committed malpractice. But in a recent unpublished decision, the South Carolina Court of Appeals found that a client can also be damaged by a lack of stability in a settlement.

The client was suing the attorneys who had handled her divorce suit. A Lexington County Circuit Court judge granted the attorneys summary judgment on each of the client’s claims. The Court of Appeals, while affirming most of the summary judgment ruling, did however reverse one part of the ruling related to damages.

The client’s attorney had failed to obtain a temporary hearing for court-ordered separate maintenance and support, which the appeals court said the client most probably would have received if the attorney had pursued such relief soon after the husband left the marital home. Although the husband eventually provided ample funds for many, if not most, of the client’s expenses as advances on property distribution, the client did not have access to those funds at the beginning of her separation.

As a result, the Court of Appeals found that “this primary source of her income did not possess the stability that court-ordered separate maintenance and support would have possessed,” and reversed the grant of summary judgment.

The ruling simply returns the case to the trial court, and as an unpublished opinion, the decision carries no precedential weight, of course. But it’s a useful reminder that for clients going through the chaos of a separation, the certainty of court-ordered maintenance has real value. If a client loses a measure of peace of mind because of an attorney’s inaction, then that causes a tangible damage to the client that the court, in this case, recognized as legally significant.

One other part of the ruling also caught my eye. The client thought she would’ve gotten permanent alimony if her attorneys had counseled her about dating during the divorce proceedings. The Court of Appeals found that she couldn’t show that anything would have changed if her attorneys had properly counseled her, but there’s no doubt that this is crucial advice for divorce clients to have. Dating is something that clients might not think to ask their attorney about before getting back out there, and family law attorneys would do well to make it a point to bring up the topic.

Follow David Donovan on Twitter @SCLWDonovan

In a statement expressing its disappointment, Infilaw officials said Tuesday that the decision by a committee of the Commission on Higher Education to reject its bid to buy the Charleston School of Law came as a surprise. The for-profit consortium said that it is poised to present its case to the full commission when it meets next month.

 “Given the strong and clear recommendation for approval by the Commission on Higher Education staff, this contradiction is puzzling,” the statement read. “We are confident that we provide the brightest future for continuing the proud traditions and commitment to excellence of the Charleston School of Law, its faculty, staff and students.”

On June 5, the full commission will consider the committee’s recommendation and make a final decision whether to grant a license to sell the private school to Infilaw, an independent consortium of for-profit law schools. If it gets approval from the full commission, then the American Bar Association must approve the sale as well.

A panel of the commission made the recommendation Monday to the full commission that the license be denied. The Committee of Academic Affairs and Licensing voted 3-1 in favor of recommending that a license for the sale not be issued much to the surprise and delight of many law professors, students, and alumni.

Concerns about this sale were relayed to the committee in two public hearings prior to the vote on May 16 and May 19.  At the May 16 public hearing, approximately 150 people attended, The Post and Courier reported.

Natasha Hanna, a Myrtle Beach attorney on the commission, told the The Post and Courier that she believes existing lawsuits against Infilaw may pose problems for the school if the sale is allowed. Infilaw has been sued for breach of contract, fraud, and misrepresenting claims about student success and job placement, although all lawsuits so far have been thrown out of court or have not yet been decided on their merits.

William Want, a professor at Charleston School of Law, has other concerns. He said, “the licensing of Infilaw to operate the Charleston School of Law does not meet the criteria that were previously established for the licensing of this school and is not in the best interest of South Carolina” He continued stating “a comparison of key performance standards shows that Charleston School of Law outperforms Infilaw schools in key areas such as admissions, selectivity, attrition rates, employment rates and amount of debt accumulated by students.”

According to the Law School Transparency 2013 report Charleston School Law’s 2013 post-graduate employment score of 51.6 percent is much higher than that of schools owned by Infilaw. Charlotte School of Law’s 2013 post-graduate employment rate is 30.3 percent; Florida Coastal School of Law’s is 29.5, and Arizona Summit’s is 40.5.

Charleston’s median LSAT for the class of 2013 was 150. Every other Infilaw school reported its median LSAT for the class of 2013 to be 144.  

Charleston law students also face less debt. LST reported that Charleston students should expect around $213,710 in debt at repayment. Charlotte’s debt at repayment for law students is $239,308, Florida Coastal’s is $246,459 and Arizona Summit’s is $243,864.

Charleston’s admissions board is more selective. In 2012, it received 2,038 applications, extended 1,037 offers and saw 174 students matriculate. Charlotte got 4,040 applications, made 3,063 offers and saw 626 students matriculate. InfiLaw’s other schools had similar acceptance rates: Florida Coastal received 4,590 applications, made 3,417 offers and enrolled a class of 580. Arizona Summit received 2,455 applications, made 2,086 offers and enrolled a class 447.

According to Want, most student alumni, and faculty oppose this sale. He said, “Also arguing against the licensing is the well-founded opposition to it of Charleston School of Law students, alumni, faculty, Charleston Mayor Joe Riley and Judge Patrick Duffy, a federal judge and former head of the school’s advisory committee.”

Follow Laurie Landsittel on Twitter @SCLWLandsittel

York County fought the state and the state won.

The outcome of the county’s battle against the S.C. Department of Health & Environmental Control over an unwanted landfill might make local governments across the state a little uneasy.

York took DHEC to court after the agency ignored an emergency ordinance that county councilors passed to keep a waste management company from building a landfill in Rock Hill.

The county argued that DHEC had supplanted a local government’s right to develop its own waste management plan. DHEC contended that it, and not the county, had the sole authority to issue landfill permits.

After the S.C. Court of Appeals panel sided with the state in a 2-1 ruling in 2012, the Supreme Court granted the county’s petition to review the ruling. But the high court determined on May 14 that the petition was improvidently granted, bringing an abrupt but anticlimactic end to the dispute.

The court’s order is two-sentences long and lacks an explanation.

“I think they probably just looked at the Court of Appeals decision and found that it stood on its own. That’s what I would assume, but since they didn’t say why they dismissed it I can’t speculate,” said Susan Lake, an attorney for DHEC.

She added, “I think it just upheld what we’ve always known was our authority, that DHEC decides whether to issue a permit based on consistency determinations. The Court of Appeals said DHEC was doing its job.”

The landfill company’s attorney, Thomas Lavender Jr. of Nexsen Pruet in Columbia, and an attorney for the county, Amy Armstrong of the S.C. Environmental Law Project in Pawleys Island, did not respond to interview requests.

In an earlier interview, Armstrong said that if the court allowed DHEC to sidestep York County’s landfill ordinance, it would send a message to other state agencies that they too could ignore local legislation.

Court of Appeals Judge James Lockemy wrote in his dissent that local governments should be able to determine their own waste management plans, even though the state has the authority to permit landfills. He worried that the majority opinion could give too much power to state agencies.

Lockemy wrote: “The effect of the majority decision permits an agency of this state to ignore legislation adopted and duly passed by representatives of the people of a local government.”

Since the case appears to have reached its end, Lake expected that construction on the landfill would begin soon. It will be able to handle 58,300 tons of trash each year.

According to Armstrong’s prior comments, the county’s two existing landfills can process more than 139,000 tons of garbage annually, though its residents generate less than 124,000 tons.

Follow Phillip Bantz on Twitter @SCLWBantz

The South Carolina Supreme Court has upheld a Greenville County man’s drunk driving conviction, no matter that his arrest was not recorded on video as required by law, because the Greenville Police Department did its best to fulfill the demands of the law despite limited resources.

When Christopher Lee Johnson was pulled over in the wee hours of March 18, 2010 — sitting in the middle of an intersection with his headlights off — he admitted to having had “too much” to drink, telling Greenville police officer Jesse Lowe that he’d drank “six or seven beers, at least.”

But after being found guilty in his October 2011 trial, Johnson appealed, arguing that the charge should be dismissed since the arrest was not recorded because Lowe’s cruiser was not equipped with a camera system.

During the traffic stop, a second officer arrived but his vehicle was also without a camera. That officer used a personal camera to record the field sobriety tests, but the state did not argue that that recording met the statutory requirements.

The South Carolina Code requires that a person suspected of driving under the influence “must have his conduct at the incident site and the breath test site video recorded,” and the recording must begin when the officer’s blue lights are activated. Failure to comply warrants a per se dismissal.

Four exceptions in subsection 56-5-2953(B) excuse compliance, including inoperable equipment, exigent circumstances, traffic accidents, and “…any other valid reason for the failure to produce the video recording based upon the totality of the circumstances.”

Tiger Wells, an attorney who serves as the government affairs liaison for the South Carolina Municipal Association, lobbies on behalf of the 270 cities and towns across the state. He said the basis of the exceptions is simple.

“The South Carolina General Assembly likes to try to avoid unfunded mandates, putting laws in place that are going to require local governments to spend money the state is not providing,” he said.

In a pretrial hearing, Greenville Police Department Lt. Joe Browning testified as to efforts his department had made over the course of about 10 years to obtain and maintain video recording systems for its vehicles. He said that prior to 2001, the department received four camera systems from the Department of Public Safety. It then spent more than $35,000 of its own funds on 18 camera systems, which soon began to fail and were sold for a nominal amount.

Browning detailed the lengthy, time-consuming and expensive process of requesting and purchasing camera systems, including a 2002 request to DPS that netted it 21 cameras and a 2009 request, the next time it was eligible, that is still pending. Elaine Johnson, former director of the DPS Department of Resource Management, testified that it could take up to 15 years to fulfill those 2009 requests.

At the time of the trial, Browning said his agency had purchased 89 digital-based systems with a total price tag of more than $463,000.

Johnson’s attorney cited a 2011 case, Town of Mount Pleasant v. Roberts, which warranted a dismissal after an officer failed to record a traffic stop because his cruiser was not outfitted with a camera.

In that case, the town argued correctly that the statute only takes effect once the law enforcement vehicle is equipped with a camera. However, as the court noted, “this argument would be valid but for the Town’s obvious intentional efforts to avoid complying with section 56-5-2953.”

The courts further found that the town circumvented the statute and evaded its duty to equip its vehicles with cameras by placing the burden solely on DPS, saying it did not have a duty to request or purchase additional cameras in order to comply with the statute.

Wells said he believes the court saw the acts – and lack of action – as the department “thumbing its nose at the court.”

“The court really didn’t like that and it was sending a message that as law enforcement you enforce the law, but you still have to abide by it as well,” he said. “Most of our police departments and sheriff’s offices – at least the top brass and leadership – understand that.”

But unlike the Mount Pleasant department, the court found that the GPD’s extensive efforts — including establishing a committee to research camera systems, using its own funds and attempting to secure extra state and local funds to obtain cameras — constituted a “valid reason” under a totality of the circumstances which would satisfy an exception under the statute.

Wells added that House bill 4476, currently making its way through Senate, would add further clarification to the process, making it “expressly clear” that traffic violations involving suspected alcohol or drug intoxication require audio as well as video recording.

Follow Heath Hamacher on Twitter @SCLWHamacher

Columbia’s McNair Law Firm announced on Wednesday that one of its clients was among the plaintiff class that recently settled claims for $297 million related to a RICO class-action suit against Amsterdam-based Ahold USA.

The client, Thomas & King, the nation’s 19th-largest restaurant franchise company, was involved in a multidistrict suit stemming from Ahold USA’s former ownership of U.S. Foodservice — now known as U.S. Foods. According to the suit, U.S. Foodservice defrauded the plaintiffs by using shell companies and false invoices to inflate prices from 1998-2005. Ahold USA sold to private investors in 2007 but had indemnified against damages as part of the terms of the sale.

The settlement, still pending approval by the United States District Court for the District of Connecticut, came after the U.S. Supreme Court on April 28 refused to hear U.S. Foods’ appeal of the case, which according to a Reuters report covered about 75,000 customers, mainly hospitals and restaurants.

U.S. Foodservice previously settled a similar claim made by the United States for $30 million.

McNair was one of seven firms representing the class, including lead counsel Hunton and Williams, and was the only firm with a Carolina-based plaintiff.

“This is a significant legal victory for our client Thomas & King and other similarly situated restaurateurs in the class,” said McNair attorney Celeste T. Jones.

Follow Heath Hamacher on Twitter @SCLWHamacher

A grievance has been filed against the chief solicitor and top public defender for the 9^th Circuit.

Desa Ballard, a former law clerk and staff attorney for the S.C. Supreme Court, is urging that same court’s Office of Disciplinary Counsel to open an investigation against Scarlett Wilson and Ashley Pennington.

Wilson, the chief solicitor for Charleston and Berkeley counties, has “established an [office] environment with the attitude ‘we do what we can get away with,’” Ballard writes in the May 21 complaint obtained by Lawyers Weekly.

Pennington, the circuit’s head public defender, “has established himself as a gatekeeper who requires the lawyers in his office to consult with him prior to acting under the obligations to report misconduct” on the part of solicitors, the complaint states.

Ballard, a partner at Ballard & Watson in Columbia who typically defends lawyers accused of misbehavior, spent about a month poring over case files and talking with public defenders and private criminal defense lawyers in the circuit before deciding to file the complaint.

“I regret that the Ninth Circuit criminal prosecution and defense are being affected by what appears to be a pattern of misconduct and I urge your office to look into these matters expeditiously,” she writes in the complaint. It includes nearly 70 pages of exhibits, including trial transcripts and two internal emails from the public defender’s office.

In one of the emails, Pennington tells his staff: “I retain the responsibility and authority to investigate and to address the public about the office’s position on matters that relate to ethic lapses and similar general policy issues.”

The email is dated Feb. 27, the day before the S.C. Association of Criminal Defense Lawyers asked the attorney general’s office to investigate Wilson’s office. The AG declined the request. SCACDL’s members have hinted that they also filed a complaint against Wilson with the disciplinary office. Such complaints are confidential.

Pennington, who opposed SCACDL’s move, discusses in the email a balancing test for determining whether to file a complaint against the solicitor’s office.

“And that cost benefit analysis of the likelihood that the impact of any complaint will adversely affect other clients that we are handling in ways that are real, unintended and unfixable as we attempt to fix a wrong that was done,” he writes.

Under the state’s Rules of Professional Conduct, attorneys have a responsibility to report professional misconduct if that conduct “raises a substantial question as to that [offending] lawyer’s honesty, trustworthiness or fitness as a lawyer.”

In the second email, which was sent Dec. 19, 2013, Pennington reminds an unnamed public defender that his annual performance review is coming up and mentions an “extensive post” that the defender wrote on the SCACDL Listserv.

“You are not to speak or convey in any manner to others comments that are critical of SAW [Wilson’s initials] or her office, especially regarding their ethics or honesty without gaining my permission first,” Pennington writes.

He tells the public defender that he is free to file an ethics complaint. Though he adds, “You should simply advise me of your action and limit your complaints to me and to ODC [the disciplinary office] unless I give permission for further publication to third parties.”

But Ballard spoke with the public defender in question and he told her that “Mr. Pennington had directly ordered him not to file [a] disciplinary complaint against Ms. Wilson in 2007 and again in 2009. Those directions were verbal,” states her grievance.

“He [Pennington] repeatedly writes that you can file grievances,” Ballard said in an interview, “but then he backs up and says you have to go through me.”

She added, “I think he wants to maintain a good working relationship with the solicitor’s office. And I certainly credit him for that. I’m just not sure that he’s doing it the right way. … My concern is that he’s forcing his judgment on his subordinates.”

Pennington has denied acting as his office’s gatekeeper for ethics complaints. He said that anyone who believes he is preventing public defenders from filing grievances against Wilson’s office is misconstruing his intentions.

“The policy in this office is that any lawyer who would like to file an ethics complaint can do so if they would like to do so,” Pennington said. But he added that he doesn’t want lawyers in his office making public comments about perceived prosecutorial misconduct without his permission.

“It’s fairly obvious that what’s going on is folks have decided that they want to challenge the manner in which I inhibit people’s freedom to speak to the press,” he said. “I will take full ownership of the fact that I am the press spokesman for this office. No one else has authority in my office to go public to the press about these kinds of matters.”

‘She can get away with it’

As for Wilson, Ballard cites four cases that she says raise serious questions about what appears to be a pattern of prosecutorial misconduct under the solicitor’s direction.

In the earliest case, State v. Tapp,Wilson was acting as the lead prosecutor in a rape and murder trial in 2005, about two years before she was appointed solicitor, when she failed to tell the defense that the boyfriend of the victim’s roommate had a key to the apartment where the attack occurred.

Before trial, Wilson filed a motion to prevent the defense from introducing evidence that a third party could have been responsible for the crime. The defendant did not oppose the motion, but would have if he’d known about the key, Ballard stated in her complaint.

On appeal, the issue of exculpatory evidence being withheld was raised but never addressed by the Court of Appeals or Supreme Court.

“Ms. Wilson suffered no consequence from her withholding of exculpatory evidence in Tapp; when reviewed in retrospect and in conjunction with the pattern of misconduct emanating from her office, it seems to support a perpetuation of withholding evidence simply because she can get away with it,” Ballard writes in the complaint.

In the latest case, a 2013 disciplinary matter, a judge discovered that an assistant solicitor under Wilson’s watch, Michael Nelson, had repeatedly texted with a juror, who also happened to be Nelson’s cousin, during breaks in a murder trial.

Nelson, who was not trying the case, later testified that he had told colleagues in his office, including Wilson, about his connection with the juror but “made no effort to ensure that the court was aware of the relationship,” states a disciplinary opinion suspending Nelson.

Nelson also admitted, according to the opinion, that he and the trial judge on the case were friends and frequently exchanged text messages.

“While I was generally aware of the discontent among the defense bar regarding multiple discovery violations by Ms. Wilson’s office, I didn’t draw a clear picture in my mind regarding her management of the office until I read the Supreme Court’s decision in the Nelson case,” Ballard writes.

Wilson has adamantly denied any wrongdoing and has invited an investigation into her office. She was unaware of the grievance when contacted this afternoon.

“This is all news to me,” she wrote in an email.

- Follow Phillip Bantz on Twitter @SCLWBantz

Gone are the days of scrutinizing, or even second-guessing, whether an employee actually has a disability under the Americans with Disabilities Act. Instead, today’s ADA claims are all about accommodating employees, so they can do their jobs.

A new case from the 6th U.S. Circuit Court of Appeals will test the limits of accommodation.

In the case, an employee with irritable bowel syndrome wanted to telecommute and argued that working at home was a reasonable accommodation. A federal judge in Detroit tossed her lawsuit, but the 6th Circuit brought it back to life, ruling that a jury should determine reasonableness and raising the question of whether being physically present on a worksite is an essential function of the job.

Cases like this one leave employers worried and concerned about how to negotiate the legal thicket.

“I frequently tell employers to just assume the person is disabled,” said Detroit employment and labor law attorney Terry W. Bonnette, of Nemeth Law.

Cameron J. Evans agreed.

“Employers should err on the side of caution and just do the reasonable accommodation,” said Evans, an employment and labor law attorney at Honigman Miller Schwartz and Cohn in Detroit.

Evans explained that employers used to focus on whether the employee was disabled and, if so, whether the disability substantially limited a major life activity.

But now, Bonnette said, the analysis has moved past that point, and focuses on whether the individual can perform the essential job functions.

“And if the person can perform the job with a reasonable accommodation, the employer has to determine what that accommodation is and provide it,” Bonnette said.

Why the change? Because ADA amendments, new Equal Employment Opportunity Commission guidelines and recent case law have put an emphasis on “individual assessment.”

“The question is whether the employer provided an individualized assessment to see if the work-related rules and regulations treat the employee fairly,” Bonnette said.

Another reason, Bonnette said, is that federal lawmakers have indicated they do not want the courts deciding medical issues, including whether a person has a disability.

“So the definition of disability has been expanded, and the EEOC continues to issue guidelines,” Bonnette said.

ADA brought ‘back to life’

When the ADA was enacted in the early 1990s, there was a decade or so of litigation that helped clarify what disabilities were covered, Evans explained.

“We ended up with two big decisions from the U.S. Supreme Court, and it seemed the issues were settled,” he said. “We saw a drop in claims because it was pretty clear what the requirements were, and employers got used to it.”

Then in 2008-09, the ADA was significantly amended, Evans noted.

“But there wasn’t a major uptick in lawsuits because of the economic troubles at the time,” he said. “Employers were just trying to keep the lights on.”

But now, ADA litigation has “come back to life,” Evans said.

“There are more requests for accommodation now because there’s a far broader group of people who can be covered,” he said.

Bonnette acknowledged there has been an increase lately in the number of EEOC complaints.

“And there’s a slight increase in the number of lawsuits being filed,” Bonnette said. “But the major overall effect has been how these cases are now litigated and what the issues really are.”

Broader category

Just in the past year, the EEOC has expanded the definition of disability to include epilepsy, diabetes, cancer and intellectual conditions, like attention deficit disorder.

“It’s a much broader group of people now who come under the ADA,” Evans said.

Bonnette emphasized the EEOC guidelines do not mean that epilepsy, diabetes, cancer and intellectual disorders are “new” disabilities.

Rather, the difference is that “we now automatically assume these conditions are always going to be disabilities,” Bonnette said.

“The question is then whether the accommodation being requested is required by that condition,” he said. “And the next question is whether the accommodation is reasonable.”

Meanwhile, like with any accommodation, the effect on the employer’s ability to operate must be considered, Bonnette said, noting it must not be an undue hardship.

Evans agreed, saying employers must find a way to work through the issues in a way that is consistent within the environment and culture of the company.

But no matter what, one overriding principle remains — employers must conduct individual assessments, Bonnette said.

“So if an employee presents with a condition, don’t get into a discussion about how bad it is and how badly it affects the employee,” he said. “Instead, immediately start asking, ‘What accommodation is required and is that accommodation reasonable?’”

The telecommuting accommodation

One of the most requested accommodations these days is working at home, Evans and Bonnette pointed out.

Because technology makes it easier to telecommute and the ADA lynchpin is now individual assessment, employers must perform a “more thoughtful” analysis of workers and their job responsibilities, Bonnette said.

“You can no longer just assume that attendance on site is an essential function of an individual’s job,” he said.

Evans agreed.

“You have a fair number of people who want to telecommute,” he said. “If telecommuting was rarely considered before, now it is something that employers have to consider.”

Evans said employers need to understand how their telecommuting policies might be a factor in an ADA claim.

“Telecommuting will require a specific focus and a deliberate process about whether it will be a reasonable accommodation,” he said. “It adds another item to the menu that must be looked at.”

Employers also need to assess whether they need a written telecommuting policy for a particular job and what the impact of the policy will be, Evans said.

“The initial analysis for employers is, what does that person do and how do they do it?” he said.

“Given that we are a technology-based society, you now have much broader group of jobs where it may not be necessary to be physically present at work.”

In addition, Bonnette said employers must thoroughly analyze job descriptions before litigation and not afterward — i.e., these are the essential functions, this is where the job must be performed and these are the physical requirements.

“And, again, it needs to be a thoughtful, individualized analysis,” he noted.

Does ruling create a ‘slippery slope’?

The April 2014 work-at-home case from the 6th Circuit will have many people watching.

In Equal Employment Opportunity Comm’n v. Ford Motor Co., the employee worked for Ford as a resale steel buyer. She had irritable bowel syndrome and claimed that working at home was a reasonable accommodation. Ford denied her request and she filed a complaint with the EEOC.

Although a Detroit federal judge dismissed the case, the 6th Circuit reversed, saying a jury should decide whether telecommuting is a reasonable accommodation for the employee.

Given technological advancements, “we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements,” the court said.

The 6th Circuit made two important points, Evans said.

“First, it called into question whether being physically present is even an essential job function anymore,” he said.

Second, the court said a jury should decide whether telecommuting is a reasonable accommodation, Evans noted.

According to Evans, the ruling emphasizes that employers must determine ahead of time whether physical presence is an essential job function.

“If it is not an essential function for the employee to be at work, then that job requirement is eliminated,” he said.

“We always had a good understanding of what ‘reasonable accommodation’ was, but this Ford case is going to spark a lot of requests for accommodation and is going to get a lot of attention in the next few years,” Evans said.

But Bonnette sees the ruling a bit differently.

“I don’t think it’s really about whether the employee is going to be at work or not, but about where that employee is going to actually perform the work,” he said.

“If the employee is to the point where she cannot leave her home because she has irritable bowel syndrome and she needs to immediately get to the bathroom, then I think the 6th Circuit got it wrong because the question then becomes whether that employee can work from the bathroom,” he said, noting the case will likely be appealed again.

The 6th Circuit is creating a “slippery slope,” Bonnette said.

“There is a long history and precedent of courts not wanting to second-guess employer’s legitimate business decisions,” he said. “But with this ruling, it seems that may be changing.”

If you would like to comment on this story, email Traci R. Gentilozzi at traci.gentilozzi@mi.lawyersweekly.com.

The maritime law industry is a ship that is taking on water, its aged hull pierced by advances in technology and legal developments.

“The pie of work is not growing, it’s shrinking,” said Scott Bluestein, one of about 10 lawyers in South Carolina who practice admiralty law exclusively. He and most of his colleagues are based in or near Charleston and the city’s port.

That port is expected to host more traffic and larger cargo ships after its shipping channel is deepened as part of a pending project. But Bluestein does not anticipate a significant uptick in work to follow.

He says that maritime law is a “dying field” – a disconcerting sentiment from a man who also teaches maritime law as an adjunct professor at the Charleston School of Law.

“I’m straight up with everybody,” he said. “I tell the students that it’s very hard to get employment in the maritime world.”

Bluestein’s mentor told him the same thing when he was starting out more than two decades ago. His mentor had gone from handling 50 to 75 cargo cases a year. That number had dropped to 25 when Bluestein entered the practice.

Now, Bluestein has five to 10 cargo cases annually.

“My mentor said what I’m saying to you now and he was absolutely right. Maritime law might be dying but it will never be dead,” he said. “You can have a slow painful demise, but it will always be there.”

‘A non-growing field’

Modern practices that have lessened the likelihood of calamity at sea or port – from containerization and the use of sophisticated GPS chart plotters to drug screening – have caused work to dry up for lawyers whose practices are tied to accidents and injuries at sea.

“It used to be that all those guys out there were drunk and high and everything else,” John Hughes Cooper, a maritime attorney in Mount Pleasant, said of seamen and dockworkers. “Now there is a big emphasis in the U.S. on safety. It’s not a bad thing, but it has cut the number of claims dramatically.”

Before neatly stacked shipping containers became ubiquitous on the decks of cargo ships, goods were shrink wrapped or carried in bags or crates, which longshoreman had to muscle around. For dockworkers, being crushed to death was a common occupational hazard.

Shipping containers also do a good job of protecting goods during transport, a fact that has reduced the missing or damaged cargo claims coming into maritime law practices from a steady stream to barely a trickle.

“We used to do a lot of cargo work and I think right now we don’t have any cases,” Cooper said.

It’s the same story for claims stemming from ships colliding or running aground, incidents that now rarely happen because of GPS and automated navigation systems.

“A big, big part of the stagnation of maritime practice is technological advances,” said Harold Watson, a maritime lawyer in Houston and first vice president of the Maritime Law Association of the U.S. The group’s membership has held steady at slightly less than 3,000 over the last several years.

“I wouldn’t describe it as a dying field,” Watson added, “but as a non-growing field.”

Abandoning ship

In 1995, the U.S. Supreme Court further battered the maritime law industry when it enforced a forum selection clause in a shipping contract that required arbitration in a foreign country. Among maritime lawyers, the ruling is now known as the Sky Reefer problem, which refers to the name of the ship in the case.

Under the ruling, if an American company bought goods from overseas and the cargo was damaged coming through a domestic port, such as the Port of Charleston, the claim could be arbitrated in Japan, London, the Philippines or any other part of the world that the shipper named in its contract.

Appellate courts also have upheld similar forum selection clauses in employment contracts with crewmembers.

“This all takes away from litigation in the United States,” Bluestein said. “And think about what a procedural nightmare it is when you have most of your witnesses in the U.S.”

A few years ago, he had a client that shipped cranes from the U.S. to Haiti and was hit with a claim after one of the cranes arrived damaged. The cargo’s insurer, Lloyd’s of London, required arbitration in London, which proved too expensive for Bluestein’s client.

“It was easier for him to go out of business than litigate in London,” he said.

Maritime lawyers also have been abandoning ship. Of the 14 U.S.-based students who were enrolled in the maritime program with Bluestein at Tulane University Law School in New Orleans, only two are still practicing, he said.

The survivors live in Florida and shifted their focus to cruise line cases. They’ve also taken on land-based personal injury cases.

“I know people [locally] who have branched out to different areas of the law besides maritime,” Bluestein added. “They’ve had to redefine themselves.”

All eyes on U.S.

To maritime lawyers aboard the industry’s leaky ship, the so-called “Rotterdam Rules” are a bilge pump.

The rules refer to an international treaty that would bring maritime law, which is governed by a 1936 statute based on even more antiquated law, into the 21^st century and also obviate the Sky Reefer problem.

The U.S. and 24 other countries signed a final draft of the treaty during a ceremony in 2009, but the rules cannot take effect until one year after they have received ratification from 20 countries. So far, only three (Congo, Spain and Togo) have ratified.

Everyone else is waiting for America to act, said Chester Hooper, a maritime litigator at Holland & Knight in Boston who teaches admiralty law at Boston University School of Law.

“They don’t want to make a move until we do because we have such a miserable track record of not ratifying,” he said. “When we ratify, I think many nations around the world will ratify.”

It took about five years, but the U.S. Department of State has finished the ratification package, which is with the secretary of state’s office and will soon be sent to the White House, according to Hooper.

From there, the package will go to the Senate and, if approved by a two-thirds vote, will find its way to the president’s desk for ratification.

“There’s no logical reason not to approve the rules. There’s nothing political about them,” said Michael Sturley, a professor of maritime law at the University of Texas at Austin School of Law. He pushed for the U.S. to take a lead role in the United Nations Convention that led to the Rotterdam Rules.

“U.S. industries most affected by the rules are strongly in favor of them. It will create jobs for the U.S.,” he added. “But if you’re asking me to predict whether the Senate will do something logical – I just don’t want to go there.”

If the rules become reality, claimants would have the option of suing carriers where the cargo originated, the first port of loading, first port of discharge or at the final destination – regardless of any forum selection clause.

“The rules will certainly bring back more cargo work,” Sturley said. “But cargo work never has been a gold mine for law firms,” especially during the age of containerization.

The rules also would bring uniform limits to carrier liability for packaged cargo that is not in a shipping container and gets damaged or lost. The limit in the U.S. is lower than many other countries, which encourages forum shopping and discourages claimants from filing suit or arbitrating claims here, Hooper said.

He represented a carrier who was sued for damaging a couple of yachts that his ship was transporting for a customer. Damages were in the millions, but the carrier’s liability was limited to $500 per yacht.

Under the rules, liability is capped at a flat rate of more than $1,000 per package of goods or limited based on the weight of the freight, whichever is greater, Hooper said.

“So we’re going to have an even playing field for package limitations,” he added. “No one is going to be able to shop for a forum with a more favorable limitation for the client.”

- Follow Phillip Bantz on Twitter @SCLWBantz

It’s not yet clear what share of a recent $297 million settlement related to a RICO class-action suit will go to a client of Columbia’s McNair Law Firm. Celeste Jones, the McNair attorney who spent years representing T&K on various matters, said she’s not sure exactly what the damages are.

“There are multiple factors in determining payment to each individual customer,” Jones said. “The final information will not be calculated until after the notice proceedings to the class and the final approval by the court.”

McNair represented South Carolina-based Thomas & King, one of the nation’s largest restaurant franchise companies, in its action against Amsterdam-based Ahold USA.

The multidistrict suit, stemming from Ahold’s former ownership of U.S. Foodservice (now known as U.S. Foods), began in Connecticut when Waterbury Hospital filed suit there, soon joined by Connecticut’s Frankie’s Franchise System, Catholic Healthcare West — California’s largest nonprofit hospital system —and T&K.

Noting the “common factual questions concerning the propriety of USF’s performance of cost-plus contracts,” the cases were consolidated in May 2008 (T&K’s original complaint was filed the previous August). Ahold appealed, but the 2nd Circuit affirmed the decision last year.

Jones said that because of the immediate appeal, the case was “much longer, much more expensive and took a level of work to reach a settlement that most cases don’t.”

75,000 plaintiffs

According to T&K’s complaint, U.S. Foodservice defrauded the plaintiffs by creating shell companies and false invoices to inflate prices from around 1998 until 2005.

The settlement, still pending approval by Connecticut’s U. S. District Court, came after the U.S. Supreme Court on April 28 refused to hear U.S. Foods’ appeal of the case, which covered about 75,000 customers, mainly hospitals and restaurants.

U.S. Foodservice previously settled a similar claim made by the United States for $30 million.

Jones said the class action suit was unusual in a couple of ways. One was the fact that it was certified under the racketeering statute in the first place. The other was the atypical plaintiffs.

“Civil RICO is a statute that is such a very high bar to reach from a factual and pleading standpoint, much less one that could be affirmed as a certified class,” Jones said. “And with a case like this one, the plaintiffs in this case were all substantial businesses most class actions involve individuals as plaintiffs.”

Jones said McNair is experienced in dealing with RICO cases – albeit usually on the defense side – and that the experience proved helpful. It also helped that T&K has been a regular client through the years.

“We had a really good understanding of how restaurants and hospital systems purchase their food chain supplies,” she said. “If you understand how someone’s business is set up it helps you figure out what went wrong.”

Not just any ‘vendor’

U.S. Foods is one of the country’s largest food distributors and sells national brand products as well as its own brands. It purchases products from suppliers and sells them to its customers, many of which contract on a “cost-plus” model, meaning the consumer pays what U.S. Foods pays for an item, plus a contracted markup.

According to plaintiffs, USF executives Tim Lee and Mark Kaiser (who was subsequently convicted of securities fraud and sentenced to nearly four years in prison for a separate scheme at USF) created six Value Added Service Providers that would allow them to inflate customers’ prices by creating phony invoices to misrepresent what USF paid for the products.

Once it purchased the food from a supplier, USF had the products delivered to its warehouses while the bill was sent to one of its VASPs. The VASP would then create an inflated invoice, ostensibly selling the products to USF for a higher price. The customer would be billed according to this spurious receipt.

The suit alleges that to keep its accounting square, USF disguised the fraudulent profits as legitimate promotional allowances and tucked them away — along with any appearance of USF’s involvement and control of the companies — in a single account controlled by two USF executives placed in VASP leadership positions.

Outwardly, it appeared as though the two executives — Gordon Redgate and Brady Schofield — owned the VASPs, though they were funded by multimillion dollar, interest-free loans from USF, which retained assignment of the VASP shares, controlled outgoing VASP payments and guaranteed their payments to suppliers.

A number of USF’s customers had the authority to audit the invoices, but the bills generated by the VASPs made no reference to kickbacks or USF’s affiliation with the VASPS. Further, the district court determined, USF made concerted efforts to hide the VASPs from consumers.

The court cited an email from USF’s chief accounting officer, Rob Soule, as evidence of the deception.

“They (auditors) do not understand why USF would advance funds to any vendor,” the mail read. Soule added that the VASP “… is not just any ‘vendor,’ but we do not want to publicize this fact.”

Loosely translated as

When Ahold proposed to purchase USF in 2000, the head of its audit committee, Paul Ekelschot, advised Ahold’s executive board that USF was using brokers to earn rebates on its private label products and “shelter” them from its clients’ auditors. He advised the board that the practice should be researched to determine “tax and legal implications and associated business risks.” One board member’s advice: “AVISO! MOLTO PELIGROSA.” In Italian, that means “Warning! Very dangerous.”

Ahold proceeded to acquire USF and, plaintiffs say, perpetuate the fraud.

Records show that in 2003, Ahold and its auditors received an anonymous letter warning that USF was requiring suppliers to send purchases to Ahold-owned companies, but invoices to companies not owned by Ahold. In response, USF executives assured Ahold that neither it, nor any of its officers, had an affiliation with the VASPs; that goods purchased passed through the VASP; that consumers were aware of services provided by VASPs; and that the VASPs were used for “legitimate business reasons” such as quality control, brand development and customer service.

Later in 2003 Ahold conducted an independent investigation and determined USF did control the VASPs, and that it required consolidation. Ahold publicly disclosed the VASP system but contended they provided “varying degrees of support.” However, it subsequently ordered USF to phase out the VASPS and eventually sold the company for $7.1 billion but indemnified for any liability to cost-plus customers over $40 million arising from the scheme.

Follow Heath Hamacher on Twitter @SCLWHamacher

In a General Assembly election on Wednesday, four candidates earned seats in their respective courts, including one on the South Carolina Court of Appeals.

Stephanie McDonald, a 9th Circuit judge since 2011, was unopposed in her bid for Seat 7 on the Court of Appeals, according to The Post and Courier in Charleston.

McDonald, 45, has been an attorney since 1994.

Two new circuit judges were appointed, with R. Scott Sprouse of Seneca filling Seat 2 in the 10th Circuit (Oconee and Anderson counties) and Daniel Hall, an assistant public defender, filling Seat 2 in the 16th Circuit (York and Union counties).

In his 26 years as an attorney, Hall has served as a prosecutor, private defense attorney, public defender and municipal judge. His boss, 16th Circuit Public Defender Harry Dest, has known Hall since their law school days at Campbell University and described him as a “man of the highest character and integrity.”

“His depth and breadth of experience is what made him an extremely attractive candidate,” Dest said. “He has both prosecuted and defended the most serious cases … I believe he will be a great asset to the judiciary because of not only his intelligence and experience, but the way he lives his life. I couldn’t be happier for him and for our judicial system in South Carolina.”

In the 11th Circuit (McCormick, Edgefield, Saluda and Lexington counties), William Gregory Seigler was chosen to fill Seat 1 in its family court.

All were elected to serve six-year terms.

After a judge threw out her office’s murder case against Tyrone Winslow, 9^th Circuit Solicitor Scarlett Wilson riled members of the criminal defense bar when she accused the public defender’s office of playing “hide the ball” with the evidence just to put on a show at trial.

The evidence showed that Winslow was defending himself from a potentially deadly beating when he killed one of his attackers with a pocketknife, which spurred the judge to declare that the 2012 trial “never should have happened.” Although he was acquitted, Winslow had spent two years in jail awaiting trial.

“Had we known the information presented in court,” Wilson told reporters outside the courtroom, “we would have made the same decision that the judge made, only much sooner.”

Yet Wilson knew that one of her assistant solicitors had opposed Winslow’s motion for a directed verdict after having heard the same evidence that led the judge to dismiss the case. She had attended the trial, sitting in the front row behind the prosecution as her assistant pushed forward with the case against Winslow.

Her dig spurred Patrick McLaughlin, then serving as president of the S.C. Association of Criminal Defense Lawyers, to write a letter sticking up for the public defender’s office. He practices at the Wukela Law Office in Florence.

Ninth Circuit Public Defender Ashley Pennington kept quiet in the wake of the Winslow case. He said in a recent interview with Lawyers Weekly that Wilson’s statements about the Winslow trial were “preposterous,” but added that he decided not to speak out or file a formal complaint against her because he felt McLaughlin addressed the issue in his letter.

McLaughlin, however, said Pennington wasn’t exactly supportive of his decision to write that letter.

“I’ll put it this way: Ashley certainly didn’t like that I did that,” he said. “He expressed some concern about me doing that.”

The Winslow case, say critics of the offices of the 9^th Circuit solicitor and public defender, is one of several in recent years that points to a festering problem in Charleston County.

“You’ve got to wonder what the hell is going on down there,” McLaughlin said. “Why is all this happening in one circuit?”

‘We do what we can get away with’

The situation in the 9^th Circuit concerned the S.C. Association of Criminal Defense Lawyers enough that its board of directors voted in February to ask the attorney general’s office to investigate Wilson.

SCACDL, a group that represents public defenders and private criminal defense lawyers throughout the state, also reportedly filed a complaint against Wilson with the state’s Office of Disciplinary Counsel.

Pennington publicly opposed SCACDL’s call for an investigation, and Attorney General Alan Wilson declined the request.

But SCACDL’s concerns piqued the interest of Desa Ballard, a former law clerk and staff attorney for the S.C. Supreme Court, which oversees the Office of Disciplinary Counsel. After spending about a month looking into the 9^th Circuit, Ballard filed a complaint against both Wilson and Pennington on May 21.

Ballard said she has not had any direct dealings with either Wilson or Pennington. She typically defends lawyers against allegations of misconduct as part of her practice at Ballard & Watson in Columbia. She said she felt a professional obligation to launch her own, independent investigation.

“I have an educated ear, and I’m very proud of the legal profession and the job that we do,” she said. “That’s why I wanted to look into this.”

She also said that a public defender in Pennington’s office contacted her and said Pennington had instructed him not to report Wilson or any of her assistants for prosecutorial misconduct.

In her complaint, Ballard said Pennington “has established himself as a gatekeeper who requires the lawyers in his office to consult with him prior to acting under the obligations to report misconduct.”

Wilson, meanwhile, has created “an [office] environment with the attitude ‘we do what we can get away with,’” according to Ballard’s complaint, which Lawyers Weekly first reported.

Public defender acting as gatekeeper?

Ballard said she interviewed public defenders as well as private criminal defense lawyers in the 9^th Circuit before deciding to file the complaint, which includes nearly 70 pages of exhibits, including trial transcripts, news reports and two emails that Pennington sent to public defenders in his office.

In one of the emails, Pennington tells his assistant public defenders: “I retain the responsibility and authority to investigate and to address the public about the office’s position on matters that relate to ethics lapses and similar general policy issues.”

Pennington mentions in the email a balancing test that he apparently uses to determine whether to file a complaint against the solicitor’s office. He has never filed a complaint.

He writes that he considers a “cost benefit analysis of the likelihood that the impact of any complaint will adversely affect other clients that we are handling in ways that are real, unintended and unfixable as we attempt to fix a wrong that was done.”

Under the state’s Rules of Professional Conduct, attorneys have a responsibility to report professional misconduct if that conduct “raises a substantial question as to that [offending] lawyer’s honesty, trustworthiness or fitness as a lawyer.”

Ballard said Pennington seems to have adopted a “more forgiving standard” for filing a complaint.

John Freeman, who teaches legal ethics at the University of South Carolina School of Law, said Pennington is in a tough spot. On the one hand, he has an obligation to stick up for his assistant defenders when Wilson’s office crosses the line, but he also needs to maintain a congenial relationship with Wilson.

“His job depends on getting clients the best [plea] deals that he can and who’s giving those deals out? The solicitor’s office,” Freeman said. “So you want to get along, to cooperate. It’s like a marriage.”

In the other email, Pennington reminds an unnamed public defender that his annual performance review is coming up and mentions an “extensive post” that the defender wrote on an online discussion forum for SCACDL members.

“You are not to speak or convey in any manner to others comments that are critical of SAW [Wilson’s initials] or her office, especially regarding their ethics or honesty without gaining my permission first,” Pennington writes.

He tells the public defender that he is free to file an ethics complaint, though he also adds: “You should simply advise me of your action and limit your complaints to me and to ODC [the disciplinary office] unless I give permission for further publication to third parties.”

Ballard said she spoke with the public defender in question (she declined to name him) and he told her that “Mr. Pennington had directly ordered him not to file [a] disciplinary complaint against Ms. Wilson in 2007 and again in 2009.”

“Those directions were verbal,” her complaint states.

“He [Pennington] repeatedly writes that you can file grievances,” Ballard said in an interview, “but then he backs up and says you have to go through me.”

“I think he wants to maintain a good working relationship with the solicitor’s office. And I certainly credit him for that. I’m just not sure that he’s doing it the right way,” she added. “My concern is that he’s forcing his judgment on his subordinates.”

Pennington vehemently denies that he acts as a gatekeeper and says that anyone who believes he is preventing public defenders from filing grievances against Wilson or others in her office is misconstruing his intentions.

“The policy in this office is that any lawyer who would like to file an ethics complaint can do so if they would like to do so,” Pennington said. But he added that he doesn’t want lawyers in his office making public comments about perceived prosecutorial misconduct without his permission.

He did not allow public defender Beattie Butler,who defended Winslow and was involved in many of the other cases that have been cited as proof of prosecutorial misconduct in the 9^th Circuit, to be interviewed for this story.

“I will take full ownership of the fact that I am the press spokesman for this office,” Pennington said. “No one else has authority in my office to go public to the press about these kinds of matters.”

‘Unfairly criticized and insulted’

As for Wilson, Ballard cites four cases that she says raise serious questions about what appears to be a pattern of prosecutorial misconduct under the solicitor’s direction.

In the earliest case, State v. Tapp, Wilson was acting as the lead prosecutor in a rape and murder trial in 2005, about two years before she was appointed solicitor. She failed to tell the defense that the boyfriend of the victim’s roommate had a key to the apartment where the attack occurred.

Before trial, Wilson filed a motion to prevent the defense from introducing evidence that someone other than the defendant could have been responsible for the crime. The defendant did not oppose the motion, but would have if he’d known about the key, Ballard stated in her complaint.

On appeal, the issue of exculpatory evidence being withheld was raised but never addressed by the Court of Appeals or Supreme Court. The former court reversed the conviction on a different ground, but the latter reinstated the conviction.

“Ms. Wilson suffered no consequence from her withholding of exculpatory evidence in Tapp; when reviewed in retrospect and in conjunction with the pattern of misconduct emanating from her office, it seems to support a perpetuation of withholding evidence simply because she can get away with it,” Ballard writes in the complaint.

In the latest case, a 2013 disciplinary matter, a judge discovered that an assistant solicitor under Wilson’s watch, Michael Nelson, had repeatedly texted with a juror, who also happened to be Nelson’s cousin, during breaks in a murder trial.

Nelson, who was not trying the case, later testified that he had told colleagues in his office, including Wilson, about his connection with the juror but “made no effort to ensure that the court was aware of the relationship,” according to a disciplinary opinion suspending Nelson, who ended up resigning.

Nelson had also admitted that he and the trial judge on the case were friends and frequently exchanged text messages.

“While I was generally aware of the discontent among the defense bar regarding multiple discovery violations by Ms. Wilson’s office, I didn’t draw a clear picture in my mind regarding her management of the office until I read the Supreme Court’s decision in the Nelson case,” Ballard writes.

Wilson called the allegations outlined in Ballard’s complaint “extremely misleading and in some instances reckless and outright false.”

“Prosecutors and law enforcement constantly are being unfairly criticized and insulted by those seeking to undermine the criminal justice system — not just here but everywhere,” she wrote in response.

Wilson declined to discuss the complaint in detail until the Office of Disciplinary Counsel has finished its investigation. The office does not discuss pending complaints.

‘Toxic atmosphere’

Freeman, the legal ethics professor, reviewed the Winslow murder prosecution along with several other cases that have been cited as evidence of prosecutorial misconduct in the 9^th Circuit and indicated that he saw enough to warrant a complaint.

“I certainly would not look down my nose at any lawyer who asked the Office of Disciplinary Counsel to please consider these facts and to take such action as they deem appropriate, if any,” he said. “I say that as somebody who has turned in a fair number of lawyers in South Carolina.”

But he added that many of the missteps involving the 9^th Circuit appear to be mere goof-ups involving prosecutors who likely meant no harm. The bigger problem, he said, is how Wilson has reacted to those who have called out her office for making mistakes.

Considering her reaction to Winslow’s acquittal in the fatal stabbing case, Freeman said her sneering comments to the press went “beyond sour grapes.”

“To accuse somebody of costing his client two years in jail for a little victory lap … I don’t know any lawyer that would be proud of that. It’s degrading,” he said. “Our job as lawyers is to elevate and promote respect. So you got beat. Maybe the other side did an excellent job. Pat them on the back.”

Freeman cautioned that the bitter counterattacks and controversy swirling around the 9^th Circuit would eventually drag down confidence in the local criminal justice system, if it already hasn’t.

“These are two leaders of two major components of that system,” he said. “What concerns me more than anything is a toxic atmosphere. The public deserves a well-functioning public defender and solicitor office, not one where personal issues bubble up to the surface.”

Follow Phillip Bantz on Twitter @SCLWBantz

Smith Moore Leatherwood is pleased to announce that Greensboro attorney Julie Earp has been named the new chair of the firm’s management committee. Earp is the first female managing partner for the firm and one of the few nationally to lead a regional law firm.

K&L Gates announced that Matthew Norton has been appointed to the firm’s management committee for a four year term as firm-wide practice area leader for real estate.

Moore & Van Allen announced that Charleston bankruptcy member Robert Kerr was elected the 2014 vice president of the South Carolina Bankruptcy Law Association. He will serve in the role for one year, and will assume the role of association president in 2015.

Nexsen Pruet attorney Tommy Preston Jr. has been elected president-elect of the USC Alumni Association. He will serve as president-elect for two years and begin his presidency July 2016. Preston will be the youngest association president and the first African-American to serve as president.

McKay, Cauthen, Settana & Stubley announced that firm partner Janet Holmes has recently been selected to join the Miss South Carolina Scholarship Organization Board of Directors.

Follow Laurie Landsittel on Twitter @SCLWLandsittel #lawyersonthemove. Send items for Lawyers on the Move to laurie.landsittel@sclawyersweekly.com.

It has happened to everyone — you hit send on an email and immediately wish you were able to delete it. Two Harvard law students have developed a way to claw that email back through a service called Pluto Mail. It allows its users to unsend an email, edit an email after it has been sent, set an expiration date that makes the email disappear after the set date or track when an email is opened. 

“This is a problem I have thought about for at least two years,” said David Gobaud, co-founder of Pluto Mail with Lindsay Lin. “It bothered me I lost control of the email as soon as I hit send. Finally last year, I figured out a way to do this — where people can continue to use their existing email.”

Gobaud explained how Pluto Mail works: When an email is sent with Pluto Mail, it goes to Pluto Mail servers, where it is converted into a HTML image. The Pluto Mail servers send that HTML image to the recipient. Since the email is now an HTML image, Pluto Mail has control over the email like you have control over your own website.

Gobaud said he wasn’t aware of any legal implications associated with unsending email.

“We don’t go into people’s inboxes and retrieve anything,” he said. “The content is kept on Pluto Servers to edit or unsend.”

Legal scholars mostly agree with Gobaud. Kara Millonzi, associate professor of Public Law and Government at the UNC School of Government said that there is no problem with setting an email to expire or with unsending an email as long as the email is not subject to a litigation hold or a lawsuit is not reasonably foreseeable. A litigation hold would trigger the duty to preserve the email, Millonzi said, which would mean you could not unsend it.

Professor William Woodruff, a law professor at Campbell University School of Law, concurred.

“Except in very few circumstances, no one is required to retain documents forever,” so there are no legal implications to unsending an email unless it is subject to a litigation hold. “If you have a litigation hold, this may be a smoking gun,” because if you unsend an email with a litigation hold, it may appear as if you are attempting to destroy evidence, he said.

Woodruff compared unsending an email to drafting a letter and then ripping it to pieces. Ripping up a letter is certainly not against any rule.

Woodruff said one thing to be aware of is how the use of a service such as Pluto Mail conforms to an organization’s document retention policy. If you have a document retention policy in place that dictates when you destroy documents, and you follow that policy and completely destroy a hard drive before a litigation hold is in place, you are not running afoul of the rules, he said.

It is important to note that this website is not infallible. If the recipient saves the email as an image file somewhere else on his or her computer, it will be possible for he or she to view it because Pluto Mail only replaces the stored image with the expiration message, it does not delete the image.

Gobaud said Pluto Mail is compatible with almost any email program, and recipients don’t have to do anything special to read the email. Users do not need to download software or use a new email addres.

Users can send email using their Pluto Mail account or their personal email accounts. No matter which account you use, it will appear as if the emails are originating from your personal account.

To unsend an email, log into your account on the Pluto Mail website and you will see your sent emails. Click unsend next to the email you wish to retract and it will be replaced with a message in the recipient’s inbox noting that the email has expired. The same message will appear when you set an email to expire after a certain time. For emails that are already opened, it will display the date and time the message was opened.

Do not forget to change the settings if you do not want your emails to expire and disappear. Initially, emails are set to expire three days after an email is opened or seven days after an email is sent if it is not opened.

Before attended law school, Gobaud was a computer science major at Stanford and Lin was a math major at the University of Virginia.

Follow Laurie Landsittel on Twitter @SCLWLandsittel

The University of South Carolina School of Law held its commencement on May 9 for its 192 graduates. Charleston School of Law held its commencement on May 11 for 162 graduates.

South Carolina Lawyers Weekly congratulates the Class of 2014.

The South Carolina Department of Corrections violated the rights of convicted dog-fighting kingpin David Ray Tant when it increased his prison sentence by 25 years without telling him.

Calling the department’s actions “troubling” and a denial of due process, the state Supreme Court held that inmates must be given an opportunity to have a hearing before their sentences can be recalculated, even if the corrections department is simply fixing a clerical error.

“There can be no doubt,” Justice Kaye Hearn wrote for the majority in the May 28 opinion, “the length of an inmate’s incarceration implicates a constitutional liberty interest.”

Tant only learned that his sentence had been changed from 15 to 40 years after he was moved from a pre-release facility to a high-security unit, where he was attacked three times and listened to the screams of other inmates being raped by cellmates, according to his appellate attorney, Desa Ballard of Ballard & Watson in West Columbia.

She also represents Tant in a federal lawsuit over the sentencing dispute. He alleges that a former prosecutor conspired with corrections and probation department agents to keep him locked up.

“This is a long, sordid story,” Ballard said.

‘We must … end this practice’

Police raided Tant’s dog fighting operation in Charleston County, which was one of the largest in the country, after one of his booby traps blasted a land surveyor with shotgun pellets. He pleaded guilty in 2004 to assault, possession of a dangerous animal and multiple counts of animal fighting.

As Tant was approaching his first parole hearing in 2007 – he had been behind bars for about two and a half years – his sentencing judge, Wyatt Saunders Jr. of Greenwood, sent the corrections department a letter stating that he had intended for Tant’s sentence to be 40 years.

The department had recorded Tant’s prison term as 15 years based on a sentencing sheet from Saunders’ court, and his parole date hinged on that calculation. But after reading Saunders’ letter, the department went back into its records and quietly changed Tant’s sentence.

In his lawsuit, Tant accuses William Frick, a former prosecutor for the S.C. Attorney General’s Office, of contacting Saunders and setting in motion the events that led to his sentence being altered. Tant’s case was one of the highest profile convictions of Frick’s career.

Frick denies that he had any ex parte communications with Saunders, who died in 2009, but admits that he first told a corrections employee that the department had gotten Tant’s sentence wrong. He had left the attorney general’s office and was a solicitor in the 6^th Circuit when he made the call, which he described as being routine.

“I have spoken to the department many times when there were inaccuracies in sentencing sheets, both as a prosecutor and even more often as a defense attorney,” said Frick, who now practices criminal defense in Winnsboro. “You have scrivener error. Something gets written down wrong when the judge fills out the sentencing sheet. Natural errors occur. Mistakes happen.”

Saunders had passed away by the time Ballard began representing Tant. But she said she interviewed the judge’s longtime secretary and was told that it was not unusual for prosecutors or the corrections department to call about tweaking an inmate’s sentence.

That Frick had talked with the corrections department, which apparently contacted Saunders, troubled Supreme Court Justice Costa Pleicones. He viewed the contacts as ex parte communications.

“I believe we must clearly and unequivocally end this practice which serves to undermine confidence in the fairness of our system,” Pleicones wrote in a concurring opinion.

Christopher Florian, an attorney for the corrections department, did not respond to interview requests. A department spokeswoman, Stephanie Givens, said the agency was reviewing the opinion.

“Our policy is to follow the judge’s order,” she said. “That’s what we thought we were doing.”

Time to change the policy?

The Supreme Court also told the corrections department that it can no longer look to a judge’s order, letter or any other correspondence when trying to calculate an inmate’s sentence.

If the sentencing sheet is unclear, the department can review a transcript from the sentencing hearing for clarification. But that is the only other source that the department is allowed to consider.

When the sheet and transcript are ambiguous, which is what happened in Tant’s case, the sentence must be construed in the defendant’s favor. So the court concluded that Tant’s sentence should be 15 years, rather than 40.

Daniel Westbrook, a partner at Nelson Mullins in Columbia who is involved in an unrelated case against the corrections department over the mistreatment of mentally ill inmates, said the Tant ruling is a “good decision.”

“I’m not aware of these kinds of practices going on,” he said of the department changing or correcting sentences without notifying inmates, “but the Tant case should make sure they don’t go on in the future.”

Tant was released on parole in 2010, after having served less than six years in prison. Despite the recent decision, which affirms and expands an earlier holding from the state Court of Appeals, the corrections department has not switched his sentence back to 15 years.

If the department does make the change, Tant will be released from parole. Otherwise, he could be on parole until Feb. 4, 2029.

Follow Phillip Bantz on Twitter @SCLWBantz

Infilaw’s quest to purchase Charleston School of Law has hit another snag. According to a statement released by Infilaw Wednesday afternoon, Sen. John E. Courson, chairman of the Senate Education Committee, requested that Infilaw temporarily suspend its bid to buy the law school and Infilaw obliged his request.

The S.C. Commission on Higher Education was scheduled to vote Thursday on whether to approve the sale.

Sen. Courson also requested the commission, which has the purported authority to approve or deny the sale, postpone its vote on the sale so the commission and its staff could have time to more carefully review these matters, according to the statement.

The suspension of the bid follows a recommendation last month from a committee of the commission that the request for a license to sell the school be denied. Infilaw officials said after the committee recommendation that they were surprised by the move because the commission staff had recommended approval of the license for sale.

On May 30, South Carolina Attorney General Alan Wilson issued an opinion that a committee of the Commission of Higher Education incorrectly recommended to the full commission the sale of the school to Infilaw be denied. According to the opinion, “South Carolina law generally states that the granting of a license is a ‘ministerial function,’ in a situation where an applicant has satisfied applicable statutory and properly promulgated regulations, an agency such as the CHE lacks the discretion to deny a properly qualified applicant a license.”

Wilson’s opinion was in response to a request from Rep. John King, a member of the House Education and Public Works Committee. 

Infilaw’s Wednesday statement reflected the consortium’s concern about the the conflict between the staff recommendation to approve the license, the committee’s recommendation to deny the license and the Attorney General’s opinion.

“Given these circumstances, we want to give the Commission additional time to consider and reconcile these issues, including responses to questions we submitted just a few days ago.”   

The Charleston School of Law was established in 2003 by five members of the South Carolina Bar. It was fully-accredited by the American Bar Association in 2011. Infilaw, a for-profit consortium that owns Florida Coastal School of Law, Charlotte School of Law and Arizona Summit School of Law, agreed to buy the law school in 2013.

Follow Laurie Landsittel on Twitter @SCLWLandsittel

South Carolina’s new DUI law has the support of the majority of South Carolina’s DUI defense bar and cleared the General Assembly without a single vote in opposition, but some dissenters do not believe that the law will work to deter drunk driving.

Carroll

The most discussed change in the law pertains to Ignition Interlock Devices (IID): Those who register a .15 or greater on a breath test, even if it is their first DUI offense, must have an IID installed in their vehicle. Under the current law, South Carolinians were required to have an IID installed for the second and subsequent DUI offense.

The law, which takes effect on Oct. 1, passed by a vote of 104-0 in the House and 41-0 in the Senate. Sen. Robert Hayes, a sponsor of the bill, said the unanimous vote, which followed extensive floor debate, was due to the “bipartisan support [for the bill] once the various parties were able to work out the details.”

“The bill was the result of widespread frustration that a child was killed on the way to Sunday morning church by a repeat offender,” he said.

According to Laura Hudson, executive director of the South Carolina Crime Victims Council and vice-president of public policy for MADD South Carolina, several reports from the Center for Disease Control in Atlanta and the National Highway Traffic Safety Administration were presented to the House and the Senate that illustrated other states with a similar law had a substantial reduction in recidivism and DUI fatalities.

But DUI defense attorney Robert Reeves of Fort Mill described the legislation as a “feel good law with no practical effect.”

“Legislatures are increasingly passing new, stricter, and harsher DUI laws, yet incidence of DUI arrests and accidents … has not decreased — the practical effect is minimal,” he said.

Reeves also believes the IID requirement places too-great a financial burden on first-time offenders.

“When you see the billboards that say you will spend $10,000 on a DUI — that’s fairly accurate — the cheapest part of the DUI arrest is attorney fees. If you lose or plea, you have to get SR-22 insurance—and try to get an insurance company to cover you with a DUI — then you have to add fine, court costs, and ADSAP [Alcohol Drug Safety Action Program]. To add the requirement that you must get an IID for a first time DUI is too expensive,” said Reeves.

Reeves

Robert “Bob” Sutton, a DUI defense attorney from Myrtle Beach, does not think the law was well thought out.

Sutton, like Reeves, also thinks that there are too many fines and fees attached to a DUI charge. He said, “It’s a big business — there is money attached to everything.” He thinks that many of his clients will not be able to afford to have both an IID and to hire attorney.

Sutton also believes that due to the lack of IID providers, offenders may have to wait up to three weeks to have the device installed.

“Try to get your job to allow you three weeks to have an IID installed,” he said.

Jim Huff, a DUI defense attorney from North Augusta, generally supports the law, but he has a couple of issues with it.

“One of the issues that will be looked at in these cases is the accuracy of the IID. As passed, a person who blows into the IID and registers a .02 to .04 will be accessed one-half of a point violation. The reason that’s important is at a .05 or below drivers are presumed not intoxicated in S.C. Two things here—one, are we going to punish people with the device that are presumed not intoxicated? Second, how accurate is this machine at a .02?”

Reeves also questions the technology. He is concerned that the technology behind an IID is not “ready for prime time — it’s not good science.”

Cole

He said a friend of his who is a former police officer had an IID installed on his vehicle for two weeks to see how it works. Reeves said it did not work, and his friend was regularly stranded even though he had no alcohol in his system. Specifically, Reeves said his friend blew into the ignition interlock device and it would not take his breath sample and therefore his car would not start.

People ‘still going to drive’

Although it has some outspoken critics, the majority of South Carolina’s DUI defense bar is in favor of the law. Drew Carroll, a Charleston DUI defense attorney, said the official position of the defense bar was in support of the law’s passage. Carroll is co-chair of the legislative steering committee for South Carolina Association of Criminal Defense Lawyers (SCACDL) and played a role in getting the law passed.

Dealing with IIDs is not new to Carroll, who at times has his clients have an IID installed for negotiation and mitigation purposes prior to the resolution of their cases.

Huff said he thinks the law will change how attorneys approach driving under suspension cases.

“People who have been convicted of DUI and had their license suspended are still going to drive,” he said. “This bill recognized that fact and is going to provide people the ability to lawfully drive once they install the IID.”

Another one of the law’s supporters, R. Scott Joye, a DUI defense attorney from Murrell’s Inlet, agrees with Huff.

“I don’t think my practice will change much, but it will change in this respect: I don’t make the decisions for what my clients need to do,” he said. “I will have to further explain the punishment if they blow over .15,” he said.

‘Didn’t get everything’

Another DUI defense attorney who was instrumental in the law’s passage is Ronnie Cole from Anderson. He believes the law will be effective if enforced correctly.

Huff

“Enforcement is 80 percent of it…We thought 80 percent of traffic safety was the legislation—it’s not. If they don’t arrest people, no law is effective.”

Reeves agrees. He believes the only way to deter drunk driving is greater enforcement, “more checkpoints and stops,” he said.

Huff and Carroll offered a counter-argument to Reeves and Sutton’s argument that this new law costs a first-time DUI offender too much money. They said that if an attorney is hired and that attorney successfully defends his or her client, then the client will have no fines and fees associated with the DUI charge.

Joye

Overall, even though most of the DUI defense bar is happy with the new law, it did not accomplish everything they had hoped, Cole said.

“The legislative process is complicated and we didn’t get everything done that we wanted done so we are glad there is another year of the legislature coming up,” he said.

Major changes to SC DUI law

•    A person convicted of DUI under the age of 21 must have his driving record reviewed from the last three years to determine if he has a prior conviction that would subject him to a longer suspension.

•    Anyone required to have an IID installed and does not is subject to indefinite suspension of driving privileges.

•    The penalty for a third conviction of Driving Under Suspension (DUS) 3rd will be a $1,000 fine and 90 days of prison or house arrest. The penalty was previously between 90 days and six months.

•    Repeals DMV’s requirement of proof of financial responsibility and assurance of acceptance into an alcohol traffic safety school prior to being issued a provisional driver’s license.

•    Extends the period an IID must be on a vehicle and for persons who are required to have an IID installed on their vehicle, but do not have it equipped with an IID that is properly working.

•    Lays out when a person is required to get an IID and when getting an IID is optional. DUI first offenders that register over a .15 on the breath test are required to get an IID.

Most weeks, including this one, you can find our roundup of attorneys who have been sanctioned by the state Supreme Court for violating ethical rules. We print these as cautionary tales illustrating the kinds of behaviors most likely to get an attorney disbarred.

You may have noticed that, while occasionally we find instances of unusual conduct, most disciplines involve attorneys who mismanaged client trust accounts. Sometimes it’s a simple case of greedy hands pilfering from the cookie jar, but other times attorneys simply fail to take their accounting responsibilities seriously and, as a result, wind up in some serious trouble. In both of the disciplines handed down by the Supreme Court on May 28, a failure to properly maintain a trust account was the main issue.

One attorney delegated trust account reconciliation to his wife, who had no special training. He then failed to review any accounting reports and thus failed to discover that the accounts weren’t getting reconciled. He was suspended for two years after issuing trust account checks payable to himself outside of his normal practice. The other attorney failed to maintain the financial records required by state rules, saying he believed that transactions in his trust account were so few that he would be able to sufficiently recall them by memory if needed. He was publicly reprimanded.

As often tends to be the case in such disciplines, the two attorneys are both solo practitioners. I’ve worked as a solo practitioner, and it’s an incredibly difficult way to make a living. There are so many demands on your time, and you have to be ruthless in cutting costs, and accounting support looks like an easy target. Additionally, most of us got into the law because we wanted to be lawyers, not accountants. We’re great with our words, but we may or may not have good heads for numbers.

But as cases like these illustrate, skimping on accounting support is one of those things that’s penny wise but pound foolish. Accounting is, quite frankly, hard, but it’s incredibly important. There’s no easier way to put your law license in jeopardy than to screw up your trust accounts, and a bar discipline is orders of magnitude more costly than getting some proper help with the books.

Most of our readers are not solo practitioners, but a decent number of big-firm attorneys may find themselves flying solo someday. If you’ve spent your whole career with the benefit of having an officer manager who reconciles the books so you don’t have to, you may not appreciate what a luxury it is.

The value is, I assure you, immense. And if you do ever transition into solo practice, take a couple of easy steps to make sure that I never end up writing about you on these pages. The trust that clients place in us to look after their money is profound. Honor that trust by taking the rules on record-keeping seriously, whether you reconcile the books yourself, or you’re able to rely on a highly qualified assistant and review their work carefully.

South Carolina Lawyers Weekly’s regular Ethics & Professionalism column cover bars discipline, malpractice suits and other related topics. Follow columnist David Donovan on Twitter @SCLWDonovan

After Horry Electric Cooperative agreed to shell out $6 million to end a class action over an ill-fated green home building program, it turned around and sued Santee Cooper for pushing the program.

Horry Electric argued in its suit that Santee Cooper misled it and other cooperatives about the pitfalls of the Good Cents Program, which gave qualifying homeowners a monthly credit on their utility bills.

Good Cents homes had to meet certain energy efficient specifications, one of which required having a plastic vapor barrier sandwiched between the interior and exterior walls. In essence, the homes had to be shrink-wrapped.

The barriers ended up doing far more harm than good on homes situated along the warm, humid coast of South Carolina. Condensation formed on the plastic wrap and created an ideal environment for mold, according to Nate Fata, a surfside beach lawyer who represented more than 1,000 homeowners in the class action against Horry Electric.

During the course of litigation, Fata said, he uncovered smoking gun letters in which a Santee Cooper employee in charge of the Good Cents program expressed concerns about using the vapor barriers on coastal homes and exposing the company to “future liability.”

That was back in the mid-1980s. Three decades would pass before homeowners began discovering mold growing on the vapor barriers hidden behind their walls.

They sued Horry Electric in 2011 and settled in May.

“I think the science has always been the same over the last 30 years, but those letters confirmed our theory of the case,” Fata said. “Long before we said this was a problem someone else was saying the same thing.”

Fixing the problem required cutting away drywall and, in some instances, moving cabinetry, countertops and appliances in order to access and tear out the plastic wrap.

“It’s pretty invasive,” Fata said. “It usually takes three to four weeks to get it all done on an average size house.”

He and his co-counsel Chris Tuck of Richardson, Patrick, Westbrook & Brickman in Mount Pleasant, received a total of $960,000 in fees and $30,000 in costs from the settlement.

While other cooperatives participated in Santee Cooper’s Good Cents Program, Tuck said the possibility of additional suits is unlikely given the amount of time that has passed since the vapor barriers were installed.

Pope Johnson of Columbia defended Horry Electric. He declined to discuss the settlement, which was reached during a confidential mediation session. He also represented the cooperative in its suit against Santee Cooper.

Horry Electric sued Santee Cooper to recover the cost of the $6 million settlement, arguing that Santee Cooper had pushed the Good Cents Program without disclosing the risks associated with the vapor barriers.

To support its case, Horry Electric relied on the same letters that formed the crux of the homeowners’ class action. But Horry County Circuit Court Judge Robert Young Sr. dismissed the action on May 27.

Young dismissed Horry Electric’s claim for equitable indemnification without prejudice, so the cooperative could take a second swing. Johnson also refused to comment on the action against Santee Cooper.

Young’s order does not offer an explanation of his decision to dismiss the case and Santee Cooper’s attorney, Rush Smith of Nelson Mullins in Columbia, declined comment.

A spokeswoman for Santee Cooper, Mollie Gore, said the suit was tossed based on the age of the claims. Santee Cooper had argued that the two-year statute of limitations on the claims had expired.

Follow Phillip Bantz on Twitter @SCLWBantz

NEGLIGENCE – BUILDING DEFECTS

Case name: Ferrell, et al. v. Horry Electric Cooperative

Court: Horry County Court of common Pleas

Date of settlement: May 27

Amount: $6 million

Attorneys for plaintiffs: Natate Fata (Surfside Beach) and Chris Tuck of Richardson, Patrick, Westbrook & Brickman (Mount Pleasant)

Attorney for defendant: Pope Johnson (Columbia)

Attorney: David Allen Swanner

Location: Myrtle Beach

Bar membership: Member since 1994

Disciplinary action: Suspended from the practice of law for two years on May 28

Background: For several years, Swanner delegated monthly reconciliation of his trust account and operating account to his spouse and bookkeeping to other non-lawyer staff in his office, none of whom were specially trained in accounting and whom Swanner provided no specific instructions. His spouse was in fact not conducting the reconciliations, and after they separated, Swanner failed to conduct any monthly reconciliations of his account. On at least 14 occasions in 2011, Swanner issued trust account checks payable to himself outside of his normal practice, totaling approximately $59,485. Swanner asserted that he issued these checks outside his normal practice because of urgent needs for funds and the unavailability of his non-lawyer assistant. Swanner also would occasionally arrange for his father to lend money to his clients, but did not obtain his clients’ informed consent to the conflict of interest as required by South Carolina rules. Swanner also failed to diligently pursue the appeal of a decision denying his client’s workers’ comp claim.

Previous discipline: None

Attorney: Joenathan Shelly Chaplin

Location: Columbia

Bar membership: Member since 1996

Disciplinary action: Suspended until further notice on May 23.

Background: The Supreme Court suspended Chaplin’s license to practice law until further order and appointed a special receiver to assume responsibility for his client files and law office accounts to protect the interests of his clients. The appointment is for a period of no longer than nine months unless an extension is requested.

Previous discipline: In 2013, Chaplin was publicly reprimanded for non-compliance with a decision by the Resolution of Fee Disputes Board that a fee Chaplin had charged was unreasonable.

Attorney: Bruce Robert Hoffman

Location: Saint Helena Island

Bar membership: Member since 1994

Disciplinary action: Publicly reprimanded on May 28

Background: After a dispute with a client triggered a notice of investigation, Hoffman was unable to produce the requested records because he was not maintaining the financial records required under South Carolina rules. Hoffman explained he did not maintain these records because he believed that, based on the minimal volume of transactions in his trust account, he would be able to sufficiently recall particular transactions by memory if necessary. Hoffman admitted that he was unable to identify specific transactions involving his trust account when asked for details during his interview. Since the investigation began, Hoffman has opened a separate operating account and completed a trust accounting course accredited by the South Carolina Bar.

Previous discipline: None

All information contained in the Bar Discipline Roundup is compiled from orders issued by the South Carolina Supreme Court and edited by staff writer David Donovan. He can be reached at david.donovan@sclawyersweekly.com