Brooks v. S.C. Comm'n on Indigent Def.

Decision Date15 February 2017
Docket NumberAppellate Case No. 2014-002477,Opinion No. Op. 5468
Citation797 S.E.2d 402,419 S.C. 319
Parties Charles Thomas BROOKS, III, Appellant, v. SOUTH CAROLINA COMMISSION ON INDIGENT DEFENSE and Office of Indigent Defense, Respondents.
CourtSouth Carolina Court of Appeals

Irma Pringle Brooks, of Law Offices of Charles T. Brooks, III, of Sumter, for Appellant.

G. Murrell Smith, Jr., of Lee, Erter, Wilson, Holler & Smith, LLC, of Sumter, for Respondents.

GEATHERS, J.:

Appellant Charles Brooks challenges the circuit court's order disqualifying Irma Brooks—Appellant's wife and law partner—from representing him and disqualifying Appellant from representing himself pursuant to Rule 3.7 of the South Carolina Rules of Professional Conduct. We affirm in part, reverse in part, vacate in part, and remand.

FACTS/PROCEDURAL HISTORY

Appellant and his wife are attorneys and practice out of Appellant's law office. A substantial portion of Appellant's practice has been devoted to representing indigent clients in criminal cases, post-conviction relief actions, probation revocations, and Department of Social Services (DSS) cases. Once work was completed on an indigent defense case, Appellant and his employees would compute the amount of billable time and submit a voucher to the South Carolina Commission on Indigent Defense (the Commission)1 for payment of fees and reimbursement of expenses.

In September 2009, the Executive Director of the Commission filed a complaint with the Office of Disciplinary Counsel (ODC) alleging suspected overbilling by Appellant via submissions of vouchers during the period of October 2006 through September 2009. In December 2009, pursuant to Appellant's request, the Commission stopped paying vouchers that continued to be submitted until a determination regarding overbilling was made. During the ODC investigation, the Commission referred the matter to the South Carolina Attorney General's office for investigation.

The Attorney General's office conducted a preliminary investigation and the special investigator interviewed Appellant, Irma Brooks, and Appellant's employees. During his interview, Appellant stated his office would submit timesheets under his name for work that Irma Brooks actually performed. Additionally, according to the special investigator's report, Appellant "would appear for a hearing on a case that Irma Brooks was working and vice versa." Office staff would send Irma Brooks vouchers for cases on which she worked for her review.

Irma Brooks stated in her interview with the special investigator that she worked on indigent defense cases even though they were assigned to Appellant by the Commission. The time spent and work she completed on indigent defense cases were noted in the case file and served as the basis for the vouchers later submitted to the Commission. The vouchers were submitted under Appellant's name because Appellant was the assigned attorney. In cases in which Appellant and Irma Brooks worked jointly, both would review vouchers for correctness prior to submitting them to the Commission. Scheherazade Charles—Appellant's employee from April 2005 to July 2007—prepared timesheets and vouchers on behalf of Irma Brooks that were submitted to the Commission under Appellant's name. The special investigator determined the vouchers were submitted under Appellant's name because Irma Brooks did not have a password or identifying number with the Commission.

Upon completion of its investigation, the Attorney General's office decided it could not prove any criminal activity beyond a reasonable doubt and declined to pursue the case. Subsequently, Appellant and ODC entered into an agreement for discipline by consent, agreeing Appellant had received $61,826.40 in excess compensation due to overbilling on indigent defense cases. As part of the agreement, Appellant requested the amount owed to him by the Commission in unpaid vouchers be reduced by $61,826.40. Our supreme court accepted the agreement and publicly reprimanded Appellant by opinion dated August 1, 2012. Appellant later determined the Commission owed him $110,522.85 in vouchers that had been submitted but not paid since the investigation began.

Appellant subsequently filed a summons and complaint against the Commission, seeking payment of vouchers for work completed on indigent defense cases. Appellant asserted he was owed $48,696.45—the amount owed by the Commission on unpaid vouchers reduced by the amount Appellant had overbilled. Attorneys Desa Ballard and Harvey M. Watson, III represented Appellant during the investigation and when the complaint was filed. The Commission answered the complaint asserting, in part, defenses based on fraud, misrepresentation, and negligence and counterclaims based on breach of contract.

In the Commission's responses to Appellant's interrogatories, it listed Irma Brooks as a witness.

In February 2013, the circuit court granted the request of Attorneys Ballard and Watson to be relieved as Appellant's counsel. Appellant thereafter continued pro se. In August 2014, Irma Brooks filed a Notice of Appearance on Appellant's behalf. In response, the Commission moved to disqualify Irma Brooks and Appellant as attorneys of record for Appellant.

The circuit court subsequently issued its ruling disqualifying Irma Brooks from representing Appellant and also Appellant from representing himself. The circuit court found Irma Brooks was a necessary witness under Rule 3.7(a) of the South Carolina Rules of Professional Conduct —which precludes a lawyer from advocating at a trial in which that lawyer is likely to be a necessary witness. Moreover, the circuit court found Irma Brooks' disqualification was not a substantial hardship to Appellant because, at that point, she had been involved in the case for only two months and the expense of hiring new counsel did not outweigh the prejudice the Commission would experience if it could not call Irma Brooks as a witness.

The circuit court also disqualified Appellant from representing himself because "[t]o allow [Appellant] to represent himself as well as be a witness would lead to a conflict with Rule 3.7." The circuit court found "there may be confusion as to whether statements made by [Appellant] as an advocate witness would be taken as proof as a fact witness or as an analysis of proof as an attorney." This appeal followed.

STANDARD OF REVIEW

A circuit court's ruling on a motion to disqualify a party's attorney is reviewed for an abuse of discretion. See Orangeburg Sausage Co. v. Cincinnati Ins. Co. , 316 S.C. 331, 347–48, 450 S.E.2d 66, 75 (Ct. App. 1994) (finding no abuse of discretion in the circuit court's ruling disqualifying an attorney from acting as an advocate but allowing the attorney to act as a witness). "An abuse of discretion occurs when the [circuit] court's ruling is based on an error of law or is not supported by the evidence." Lawing v. Univar, USA, Inc. , 415 S.C. 209, 225, 781 S.E.2d 548, 556–57 (2015).

LAW/ANALYSIS
I. Irma Brooks as Attorney and Witness

Appellant argues the circuit court erred in disqualifying Irma Brooks because (1) she is not a necessary witness, (2) her disqualification would work a substantial hardship upon Appellant, and (3) Rule 3.7(b) of the South Carolina Rules of Professional Conduct allows an attorney to advocate in a trial in which another attorney from the same law firm will be a witness. Appellant further argues the circuit court erred because the right to have counsel of one's choosing is a substantial right.

Rule 3.7 of the Rules of Professional Conduct, Rule 407, SCACR, provides:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

The comments to Rule 3.7 describe the rationale behind the advocate witness rule. Comment 1 explains, "Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client." Rule 3.7, RPC, Rule 407, SCACR. Comment 2 provides, in pertinent part:

The opposing party has proper objection whe[n] the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate witness should be taken as proof or as an analysis of the proof.

Id. Our court has espoused this rationale, stating, "The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively." Collins Entm't, Inc. v. White , 363 S.C. 546, 564, 611 S.E.2d 262, 271 (Ct. App. 2005) (quoting State v. Capps , 276 S.C. 59, 65, 275 S.E.2d 872, 875 (1981) (Lewis, C.J., dissenting)). However, we also recognize the countervailing rationale that a party could call opposing counsel as a necessary witness, requiring his or her disqualification, purely for tactical or strategic reasons. Beller v. Crow , 274 Neb. 603, 742 N.W.2d 230, 234 (2007) ; Smithson v. U.S. Fid. & Guar. Co. , 186 W.Va. 195, 411 S.E.2d 850, 855 (1991).

South Carolina courts have not specifically addressed what a "necessary witness" is under Rule 3.7. Other jurisdictions with nearly identical language to Rule 3.7 find that an attorney is "likely to be a necessary witness" when the "attorney's testimony is relevant to disputed, material questions of fact" and "there is no other evidence available to prove...

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