A federal court has declined to hear constitutional claims brought by a South Carolina attorney and his law firm against the state’s Commission on Lawyer Conduct and Office of Disciplinary Conduct, citing the abstention doctrine established by the U.S. Supreme Court’s 1971 ruling in Younger v. Harris.
John Hawkins, founder of HawkLaw in Greenville, sought declaratory and injunctive relief from the U.S. District Court for the District of South Carolina, claiming violations of his First and Fourteenth Amendment rights. But U.S. District Judge J. Michelle Childs ruled that the court should abstain from the matter in the absence of bad faith, harassment, or another extraordinary circumstance that would make abstention inappropriate under Younger.
In Younger, the nation’s highest court held that federal courts were required to abstain from hearing civil rights tort claims brought by those being prosecuted for a matter arising from the claim. Childs wrote that though Hawkins’ firm isn’t a party in any pending state court proceedings, its claims that the South Carolina Rules of Professional Conduct—applicable only to attorneys licensed in the state—are unconstitutional are entirely derivative of Hawkins’ claims, “unavoidably intertwined and inseparable,” and subject to Younger abstention.
“The court finds that the state attorney disciplinary proceedings at issue fall with the province of the Younger abstention doctrine and the proceedings are judicial in nature, implicate important state interests, and provide adequate opportunity for Plaintiffs to raise their constitutional challenges,” Childs wrote. “As such, principles of comity and federalism counsel the court’s abstention from this matter.”
Watching like a hawk
The ODC began investigating Hawkins in 2014 after receiving a formal complaint stating that some of his advertisements violated the state’s rules of professional conduct. The investigation culminated in 2015, with Hawkins receiving a “letter of caution” about using a certain phrase in his ads. The ODC opened subsequent investigations in 2017, 2018, and 2019 after complaints of, among other things, use of the name “the Hawk” and the sounds of a screeching hawk in commercials.
The agency filed formal charges in April 2021, alleging violations of the provisions prohibiting false, misleading, or deceptive communications about a lawyer’s services and nicknames and monikers that imply an ability to obtain results in a matter. Two weeks later, Hawkins filed his lawsuit.
On Oct. 11, 2021, the same day it re-filed formal charges against Hawkins (it had dismissed charges relating to the 2017 investigation with prejudice and the 2018 and 2019 investigations without prejudice), the ODC filed a motion to dismiss. Pursuant to the Federal Rules of Civil Procedure, the ODC argued, the court should enter judgment on the pleadings and dismiss the case with prejudice based on the Younger abstention doctrine.
According to Younger, state lawyer disciplinary proceedings can be subject to abstention when they are akin to a criminal proceeding, as Childs found that they were in Hawkins’ case. In South Carolina, lawyer disciplinary proceedings begin with a screening, followed by preliminary and full investigations, the filing of formal charges, and a review by the state’s Supreme Court.
“Accordingly, South Carolina lawyer disciplinary proceedings are judicial in nature and subject to Younger abstention,” Childs wrote.
Childs found further evidence in favor of abstention, noting that regulating the conduct of attorneys implicates a vital state interest and that the plaintiffs can raise their constitutional claims in the disciplinary hearing and on appeal to the states’ Supreme Court.
“The court has no reason to believe that the members of the Commission, many of whom are lawyers, or the justices of the South Carolina Supreme Court would refuse to consider a claim that the rules they are enforcing violate federal constitutional guarantees,” Childs wrote.
Fight, not flight
Angus Macaulay, Brittany Clark, Susan McWilliams, and Sara Svedberg of Nexsen Pruet in Columbia and Assistant Deputy Attorney General Harley Kirkland represented the defendants. Svedberg referred Lawyers Weekly to the judicial branch’s public information office, where director Ginny Jones declined to comment. The Office of the Attorney General also declined to comment.
Though Hawkins’ claims were dismissed, his attorney, Robert Dodson of Columbia, said that he believes district court is the best place to litigate “the most fundamental right” guaranteed by the Constitution, and that the ODC’s dismissal of its “most significant claim” is a significant victory.
“ODC had previously alleged that HawkLaw could not use ‘the Hawk’ in its advertisements, despite the fact that it is part of Mr. Hawkins’ name and despite the fact that their office had previously agreed that the use of the Hawk in the name was indeed appropriate,” Dodson said. “They have abandoned that claim.”
Dodson said that he and his clients welcome the opportunity to defend against the two remaining claims to be litigated in the state system, and that they are considering all legal options.
“Including an appeal to the Fourth Circuit Court of Appeals and beyond, if necessary,” Dodson said.
The 11-page decision is Hawkins v. South Carolina Commission on Lawyer Conduct (Lawyers Weekly No. 002-005-22). The full text of the opinion is available online at sclawyersweekly.com.
The post Hawk lawyer’s suit against ODC won’t fly in federal court 
first appeared on South Carolina Lawyers Weekly.