Smith, Matter of

• Decision Date: 17 March 1977
• Docket Number: No. 20386,20386
• Citation: 268 S.C. 259,233 S.E.2d 301
• Court: South Carolina Supreme Court
• Parties: In the Matter of Edna SMITH, Petitioner.

Page 301

233 S.E.2d 301

268 S.C. 259

In the Matter of Edna SMITH, Petitioner.

No. 20386.

Supreme Court of South Carolina.

March 17, 1977.

Laughlin McDonald, Atlanta, Ray P. McClain, Charleston, and Melvin H. Wulf, New York City, for petitioner.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. A. Camden Lewis and Richard B. Kale, Jr., Columbia, for respondent.

PER CURIAM:

This matter is before the Court pursuant to an order, issued under Section 34 of the Rule on Disciplinary Procedure, granting petitioner's request for review of a private reprimand administered by the Board of Commissioners on Grievances and Discipline (Board). Petitioner is a member of the Bar of this State and the private reprimand was issued upon findings that she had violated Disciplinary Rules 2-103(D)(5)(a) and (c) and 2-104(A)(5) of the Code of Professional Responsibility by soliciting a client on behalf of the American Civil Liberties Union (ACLU).

The grounds urged by petitioner defensively before the Board are basically the same as she now presents to have the findings and private reprimand by the Board set aside. These are:

1. Does the record sustain the findings of the Board that petitioner violated the cited provisions of the Code of Professional Responsibility?

2. Was petitioner's conduct protected by the constitutional guarantees of freedom of speech and association?

3. Is Rule 4(d) of the South Carolina Supreme Court's Rule on Disciplinary Procedure void for vagueness and overbreadth?

4. Did the complaint in this case give petitioner notice of the charge as required by due process of law?

5. Does the record sustain the finding of the Board that there was no retaliatory motive on the part of the office of the Attorney General in this proceeding?

We are convinced that the record amply sustains the finding of the Board that petitioner violated the Code of Professional Responsibility and that disciplinary action was required. While we affirm the findings of the Board that petitioner was guilty of unethical conduct, we conclude that the facts and circumstances are sufficiently aggravated to justify a public, instead of a private, reprimand. Accordingly, this opinion will be published in the Reports of this Court.

This matter was first heard before a Hearing Panel which filed its report and recommendations with the Board. The following portions of the panel report, affirmed by the Board, set forth the material facts and correctly dispose of the issues presented in this appeal:

"The Respondent, Edna Smith, is a practicing attorney in Columbia, South Carolina, having been admitted to the Bar in September 1972. During the period in which the acts complained of in the complaint occurred, respondent was an associate in the Carolina Community Law Firm, in an expense sharing arrangement with each attorney keeping his own fees. One of the associate attorneys was a staff counsel for the ACLU and was a Counsel of Record in the Pierce case (hereafter mentioned). She was also a legal consultant of the South Carolina Council on Human Relations, from whom she received compensation, and was an officer of the Columbia Branch of the ACLU, and was a cooperating attorney with the ACLU.

"In response to information received through the South Carolina Council on Human Relations, she contacted one Gary Allen, in Aiken, South Carolina, to arrange for her to talk to people there who had been sterilized. The meeting was held in Aiken during the month of July, 1973, at the office of Gary Allen. Marietta Williams is a Black woman who had consented to be sterilized by Dr. Clovis Pierce. At the meeting in Gary Allen's office, the respondent advised those present, who included Mrs. Williams and other women who had been sterilized by Dr. Clovis H. Pierce, of their legal rights and specifically that they could bring suit for money damages against Dr. Pierce. There was no further contact between respondent and Mrs. Williams until Mrs. Williams received a letter from respondent dated August 30, 1973. In this letter respondent referred to the meeting in Mr. Allen's office and indicated that the ACLU would like to file a lawsuit for her for money against the doctor who performed the operation. This letter was written on the letterhead of the Carolina Community Law Firm and signed by her as attorney-at-law.

"Prior to the institution of this proceeding, a class action entitled Jane Doe and Mary Roe, on their behalf and on behalf of all others similarly situated v. Clovis H. Pierce, M.D., et al., was commenced in the United States District Court of South Carolina to declare the acts of the defendant in violation of the First, Fourth, Fifth, Eighth, Ninth, Thirteenth and Fourteenth Amendments of the Constitution, to enjoin such acts, and for money damages and attorneys' fees. Respondent contended at a procedural hearing in that case, Judge Blatt's ruling in allowing certain questions to be propounded to a witness involving the contact of the respondent with the witness was res judicata or acted as a collateral estoppel against this proceeding, which contention Judge Chapman dismissed as is hereinafter reflected.

"After the filing of this disciplinary proceeding against the respondent, an action was brought in the United States District Court of South Carolina, Columbia Division, to enjoin the members of the Board of Commissioners on Grievances and Discipline, individually and as members of the Board, and the Attorney General of South Carolina from prosecuting or otherwise processing the complaint in this proceeding. Complainant also prayed for costs, plus attorneys' fees and a declaration that the complaint before the Board was in violation of her rights under the First and Fourteenth Amendments. In dismissing the complaint, on the grounds that the complainant failed to state facts entitling respondent to Federal intervention, Judge Chapman held:

'(1) That to be entitled to injunctive relief against an action pending in a State Court the plaintiff must not only prove bad faith and harassment, which was alleged in this action, but also show that unless restrained the proceeding would cause grave and irreparable injury without providing any reasonable prospect that the State Court would respect and satisfactorily resolve the constitutional issue raised, which was not alleged or proved in the case.

'(2) That Judge Blatt's ruling in Doe v. Pierce, in regards to allowing questions as to solicitation, was solely because they might go to the issue of the appropriateness of the class action, and was in no way res judicata or acted as a collateral estoppel upon the Board or the Supreme Court of South Carolina.'

"The evidence presented indicated that the ACLU has only entered cases in which substantial civil liberties questions are involved, and that contrary to their former practice, they are now asking for fees, in addition to any damages that might be awarded to the plaintiffs, and that they are never reimbursed out of the damages awarded the plaintiffs.

"The evidence is inconclusive as to whether the respondent solicited Mrs. Williams on her own behalf, but she did solicit Mrs. Williams on behalf of the ACLU, which would benefit financially in the event of successful prosecution of the suit for money damages.

"Respondent's contention that her actions were protected by the First and Fourteenth Amendments of the United States Constitution gives us some concern, but the other defenses are of little merit and will be disposed of first.

"Respondent's contention that Judge Blatt's ruling in a preliminary hearing in the case of Jane Doe and Mary Roe v. Clovis H. Pierce, M.D., et al., is res judicata or operates to estop the Board of Commissioners on Grievances and Discipline is patently erroneous. As stated in Respondent's own Pre-trial Memorandum, 'Under the Doctrine of res judicata a former judgment operates as a bar against a second action upon the same cause of action, but in a later action upon a different cause of action it operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action. Lorber v. Vista Irrigation District, 127 F. (2d) 628 ((10th) 9th Cir. 1942), Exhibitor's Poster Exchange, Inc. v. National Screen Service Corp., 421 F. (2d) 1313 (5th Cir. 1970). The relevant inquiry into the application of this doctrine is identity of parties, subject matter, cause of action and whether or not the persons against whom estoppel is asserted had a full and fair opportunity for judicial resolution of the said issue.' In the case before Judge Blatt neither of the parties to this proceeding were parties, the subject matter and causes of action were totally different, and finally the complaint in this case had no opportunity for judicial resolution of the issue of solicitation.

"Respondent's contention that the proceedings were initiated in retaliation because of her race, sex and in violation of the First and Fourteenth Amendments are not well taken. While respondent did introduce evidence of her race, sex and certain of her associational activities, there is a total lack of proof that the Board of Commissioners on Grievances and Discipline or the Attorney General issued the complaint against her in retaliation. Respondent properly takes the position that evidence is particularly suspect when it is procured by a party who is acting adversely to the respondent in other litigation. However, the evidence here does not bear out her position...