Petition for Writ of Certiorari — Richard G. Wern, Petitioner v. South Carolina Commission on Lawyer Conduct

Supreme Court briefFeb 23, 2021

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No. ____

______________

IN THE

SUPREME COURT OF THE UNITED STATES

____________

Richard G. Wern,

Petitioner,

vs.

Supreme Court of South Carolina,

Respondent.

____________________

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF SOUTH CAROLINA

____________________

Desa Ballard

Supreme Court Bar No. 174416

Ballard & Watson

226 State Street

West Columbia, SC 29169

Telephone 803.796.9299

desab@desaballard.com

ATTORNEY FOR PETITIONER

February 23, 2021

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................................. ii

PRIOR PROCEEDINGS ......................................................................................2

JURISDICTIONAL BASIS OF PETITION ...................................................... 3

CONSTITUTIONAL PROVISIONS INVOLVED...............................................3

STATEMENT OF THE CASE ............................................................................3

ARGUMENT IN SUPPORT OF WRIT OF CERTIORARI ................................6

1. Deference to state regulation of the practice of a profession is

not absolute, and federal intervention is appropriate in

Petitioner’s circumstance. .............................................................. 6

2. The standard for consideration of undue delay, recognized as

a due process implication in disciplinary proceedings, was

changed and retroactively applied to Petitioner without

notice. ..............................................................................................7

3. New rules for Petitioner reveal the sanction to have been

punitive in nature, not for legitimate purpose of protecting

the public. ..........................................................................................8

CONCLUSION ..................................................................................................10

APPENDIX

Order Denying Petition for Rehearing filed November 25, 2020 ...... A-01

Petition for Rehearing dated October 22, 2020 ................................. A-02

Opinion of the South Carolina Supreme Court No. 27998

filed October 7, 2020 ........................................................................... A-14

Panel Report dated January 25, 2020 ................................................ A-24

Amended Response to Formal Charges dated

June 25, 2019 (without exhibits) ................................................. A-47

Formal Charges dated May 6, 2019 ................................................... A-53

Commission on Lawyer Conduct letter authorizing the

filing of Formal Charges dated November 18, 2013 ..................... A-63

TABLE OF AUTHORITIES

CASES

City & County of San Francisco v. Sheehan,

135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015) ..................................................................... 9

Darr v. Buford,

339 U.S. 200, 227 (1950) (Frankfurther, J., dissenting) .................................................. 10

Goldfarb v. Virginia State Bar,

421 U.S. 773, 792, 95 S.Ct. 2004, 2016, 44 L.Ed.2d 572 (1975) ....................................... 6

Grooms v. Medical Society of South Carolina,

298 S.C. 399, 380 S.E.2d 855 (Ct.App. 1989) ....................................................................... 7

Inglese v. Beal,

403 S.C. 290, 742 S.E.2d 687, 690 (Ct.App. 2013)............................................................... 8

In re Edna Smith Primus,

436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978). .......................................................... 6

In re Ruffalo,

390 U.S. 544, 551, 88 S.Ct., 1222, 1226, 20 L.Ed2d 117 (1968). ...................................... 8

Leis v. Flynt,

439 U.S. 438, 99 S.Ct. 698, 58 L.Ed. 717 (1979) .................................................................. 6

Lucero v. State,

414 S.C. 238, 777 S.E.2d 409 (Ct.App. 2015). ...................................................................... 7

Mannes v. Meyersannes v. Meyers,

419 U.S. 449, 95 S.Ct. 584, 42 L.Ed. 574 (1975). ................................................................. 6

Matrix Financial Services v. Frazer

394 S.C. 134, 714 S.E.2d 532 (2011) ....................................................................................... 8

Matter of Chastain,

340 S.C. 356, 532 S.E.2d. 264 (2000) ............................................................................................ 8

Matter of Dickey,

395 S.C. 336, 718 S.E.2d 739 (2011) ....................................................................................... 8

Matter of Hall,

333 S.C. 247, 509 S.E.2d 266 (1998) ....................................................................................... 8

Stone v. Thompson,

428 S.C. 142, 833 S.E.2d 274 (Ct.App. 2019). ...................................................................... 7

York v. Longlands Plantation,

840 S.E.2d 544 (2020). ............................................................................................................... 7

Zaman v. S.C. Board of Medical Examiners,

408 S.E.2d 213, 215 (1991). ...................................................................................................... 7

Constitutional provisions and STATUTES

United States Constitution’s V ............................................................................................3

United States Constitution’s XIV .......................................................................................3

28 U.S.C. Code § 2101(c) ............................................................................................... 3

S.C. Const. art. IV ............................................................................................................... 3

OTHER AUTHORITIES

Rule 410, SCACR ................................................................................................................4

Rule 3, Rule 413, SCACR ...................................................................................................4

Rule 5, Rule 413, SCACR .................................................................................................. 4

iii

QUESTIONS PRESENTED FOR REVIEW

Did the South Carolina Supreme Court deny Petitioner Richard G. Wern of

due process of law by disbarring him based on a previously unannounced standard

for imposition of lawyer discipline, in issuing an opinion that was intentionally

punitive in nature, and by not considering the protection of the public in reaching its

decision as to sanction.

PRIOR PROCEEDINGS

1. Investigation by the Office of Disciplinary Counsel, Case No. 12-DE-L-0552,

initiated June 12, 2012.

2. Petition to the South Carolina Supreme Court for Interim Suspension by the

Office of Disciplinary Counsel dated October 29, 2013.

3. Order of the South Carolina Supreme Court dated November 6, 2013 granting

Petition for Interim Suspension.

4. Order of the South Carolina Supreme Court Lifting Interim Suspension dated

December 12, 2013, published at Matter of Wern, 406 S.C. 375, 752 S.E.2d 268

(2013).

5. Formal Charges against Petitioner issued by the Commission on Lawyer Conduct

May 6, 2019, Case No. 19-CLC-004 (without exhibits).

6. Panel Report of the Panel of the Commission on Lawyer Conduct to the South

Carolina Supreme Court dated January 27, 2020.

7. Decision of the South Carolina Supreme Court disbarring Petitioner dated

October 7, 2020. The Court’s decision is identified at Opinion No. 27998, but is

not yet published in the Southeastern Reporter (2d) or the South Carolina

Reports.

8. Petition for Rehearing by Petitioner to South Carolina Supreme Court dated

October 22, 2020.

9. Order of the South Carolina Supreme Court denying rehearing dated November

25, 2020.

JURISDICTIONAL BASIS OF PETITION

Pursuant to 28 U.S.C. Code § 2101(c), Petitioner Richard G. Wern seeks review

of the final judgment of the South Carolina Supreme Court issued November 25,

2020, which denied rehearing of its Opinion No. 27998, issued October 7, 2020 and

seeks review of the October 7, 2020 order.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V: “No person shall be … deprived of

life, liberty, or property, without due process of law.”

United States Constitution, Amendment XIV:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the state

wherein they reside. No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

Respondent is the Supreme Court of South Carolina, which has exclusive

jurisdiction over admission to the practice of law and the discipline of persons

admitted to practice law in South Carolina. S.C. Const., Art. IV. The South Carolina

Supreme Court administers the practice of law and discipline of persons admitted to

practice through entities created by appellate rules created by the South Carolina

Supreme Court. Rule 3, Rule 413, S.C.App.Ct.R. (“SCACR”) (creating Commission

on Lawyer Conduct); Rule 5, Rule 413, SCACR (creating Office of Disciplinary

Counsel). 1

Following a six-year investigation by the Office of Disciplinary Counsel

(“ODC”), and five years after the Commission on Lawyer Conduct authorized formal

charges ODC filed formal charges against Petitioner, alleging professional

misconduct. Petitioner admitted misconduct, and the matter proceeded solely on the

issue of what sanction would be recommended and ultimately imposed.

A hearing panel of the Commission on Lawyer Conduct issued a report with

factual findings as to Petitioner’s misconduct, as well as a recommendation as to the

imposition of a sanction against Petitioner.

After considering aggravating and

mitigation circumstances in accordance with the American Bar Association

“Standards on Imposing Lawyer Sanctions,” the hearing panel stated it was “likely”

to have recommended disbarment as an appropriate sanction under the findings and

conclusions otherwise made, but did not do so largely, if not exclusively, on the “length

of time this matter has been pending. Approximately seven years have passed since

the misconduct occurred and… [Petitioner] has continued to practice law without any

additional disciplinary issue.”

(App. P. 44).

Accordingly, the panel instead

The South Carolina Bar is not involved in the regulation and discipline of lawyers in South Carolina.

See Rule 410, SCACR.

recommended that “[Petitioner] receive a six-week suspension for the misconduct, but

that [Petitioner] be given credit for the six-week suspension already served.” 2

Petitioner filed no exceptions to that panel report. Disciplinary Counsel filed

exceptions and raised eight issues, addressing certain recommendations of the

hearing panel and asking that the South Carolina Supreme Court issue an order

imposing “a lengthy suspension or disbarment.” (ODC Brief p. 47).

Following

oral arguments via video conference due to procedures implemented in response to

COVID-19, the South Carolina Supreme Court issued its order disbarring Petitioner.

In doing so, the state Supreme Court correctly noted that the delay in prosecution of

Petitioner was “inexcusable,” and specifically found Disciplinary Counsel “has offered

no explanation, much less a reasonable one” for the delay. (App. p. 18). However, the

South Carolina Supreme Court established a new burden upon Petitioner, despite

the absence of precedent that notified Petitioner he had such a burden, by holding

“We find that unjustified delay on the part of ODC may properly be considered as a

mitigating factor where a Respondent demonstrates ‘unfair prejudice’ as a result

thereof.” Op. No. 27889, p. 13 (App. p. 19).

2 More than a year after its investigation of Petitioner had commenced, ODC petitioned the South

Carolina Supreme Court to place Petitioner on interim suspension, alleging Petitioner posed a danger

to the public should he continue to practice law during ODC’s ongoing investigation. The petition was

granted on November 6, 2013, but the South Carolina Supreme Court subsequently lifted the

suspension on December 23, 2013, allowing Petition to continue to practice law under certain imposed

conditions. The period of time Petitioner’s license had been suspended was approximately six weeks.

After reinstatement initially, Petitioner continued to practice law uninterrupted for another six years

before being disbarred.

ARGUMENT IN SUPPORT OF WRIT OF CERTIORARI

1. Deference to state regulation of the practice of a profession is not

absolute, and federal intervention is appropriate in Petitioner’s

circumstance.

The United States Supreme Court has examined the constitutional rights of

licensed lawyers who are subjected to unlawful action in state licensing proceedings.

In re: Edna Smith Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978).

The States enjoy broad power to regulate ‘the practice of professions

within their boundaries; and ‘the interest of the States in regulating

lawyers in especially great since lawyers are essential to the primary

governmental function of administering justice and have historically

been officers of the courts.

Primus, 436 U.S. at 422, citing Goldfarb v. Virginia State bar, 421 U.S. 773, 792, 95

S.Ct. 2004, 2016, 44 L.Ed.2d 572 (1975).

Additionally, this Court “extends…

procedural safeguards to certain interest ‘that stem from an independent source such

as state law.’” Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed. 717 (1979).

While this Court reluctantly opines on a state court’s authority to regulate the

conduct of lawyers who practice before it, it will do in extraordinary circumstances.

Mannes v. Meyersannes v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed. 574 (1975).

Petitioner contends that the circumstances below are extraordinary, under both state

and federal law, as a deprivation of due process by a state Supreme Court in

announcing a new burden of proof and applying it to disbar a licensed lawyer with no

notice rises to the level that warrants this Court’s review.

2. The standard for consideration of undue delay, recognized as a due

process implication in disciplinary proceedings, was changed and

retroactively applied to Petitioner without notice.

The South Carolina Supreme Court has long recognized that procedural due

process rights must be met before the State can revoke (or restrict) a professional

license. Zaman v. S.C. Board of Medical Examiners, 408 S.E.2d 213, 215 (1991). And

for more than a decade, the South Carolina Supreme Court has recognized the

responsibility for delay in disciplinary proceedings as a failing of Disciplinary

Counsel. It had also recognized delay as a factor in mitigation without requiring a

responding lawyer to show “unfair prejudice” as a prerequisite to allowing

Disciplinary Counsel’s delay to be considered in mitigation. Matter of Dickey, 395

S.C. 336, 718 S.E.2d 739 (2011) (“The length of time between Respondent’s interim

suspension and the filing of the formal charges gives this Court cause for concern.”).

Yet Petitioner had no notice that the South Carolina Supreme Court would

impose a burden upon him to establish “unfair prejudice” as a result of the

“inexcusable” and “unexplained” delay in prosecuting the disciplinary proceedings.

Doing so is contrary to established law in South Carolina, that new pronouncements

of substantive law apply prospectively only.

York v. Longlands Plantation, 840

S.E.2d 544 (2020); Stone v. Thompson, 428 S.C. 142, 833 S.E.2d 274 (Ct.App. 2019);

Lucero v. State, 414 S.C. 238, 777 S.E.2d 409 (Ct.App. 2015); Grooms v. Medical

Society of South Carolina, 298 S.C. 399, 380 S.E.2d 855 (Ct.App. 1989),

3. New rules for Petitioner reveal the sanction to have been punitive in

nature, not for legitimate purpose of protecting the public.

While announcing the new standard and applying it to Petitioner at the same

time the new standard was announced, the South Carolina Supreme court abandoned

its long-standing precedent and the state’s legitimate interest in protecting the public

by regulating lawyers, and instead replaced it with a means to punish lawyers. This

despite the South Carolina Supreme Court appropriately recognizing that its ability

to regulate the practice of law arises from its obligation to protect the public. Matrix

Financial Services v. Frazer, 394 S.C. 134, 714 S.E.2d 532 (2011). See also Inglese v.

Beal, 403 S.C. 290, 742 S.E.2d 687, 690 (Ct.App. 2013)( “protection of the public is of

paramount concern.”).

We have similarly explained that the ‘central purpose of the disciplinary

process is to protect the public from unscrupulous and indifferent

lawyers.’

Matter of Chastain, 340 S.C. 356, 532 S.E.2d 264 (2000) (citing Matter of Hall, 333

S.C. 247, 509 S.E.2d 266 (1998)).

The United States Supreme Court has recognized the “quasi-criminal” nature

of lawyer disciplinary proceedings. In re: Ruffalo, 390 U.S. 544, 551, 88 S.Ct., 1222,

1226, 20 L.Ed2d 117 (1968).

Petitioner respectfully asserts that this Court’s

extraordinary power through certiorari is most appropriately employed where, as

here, a state court of law has resorted in a “quasi-criminal” proceeding to use its

power to discipline professionally using punishment reserved for criminal

proceedings. That is especially true where a concurring opinion from one of the state

court justices below openly indicated the criminal mindset through which the decision

was being treated by characterizing Petitioner’s conduct as “stealing” and referred to

the “crimes he was committing” and “attempt to hide his thefts.” 3

Only this Court may provide a forum for remedial action thereof. “[C]ertiorari

jurisdiction exists to clarify the law.” City & County of San Francisco v. Sheehan,

135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015). Petitioner respectfully asserts that

this Court’s examination of the deprivation of due process rights of a lawyer subjected

to state disciplinary procedures, which result in a punitive sanction, as opposed to

one necessary to protect the public’s interest, and the imposition of a new standard

of proof without notice, is sufficiently serious to invoke this Court’s power or review.

Petitioner would further show allowing a state Supreme Court to unilaterally

change its means of discipline to incorporate punitive sanctions, not sanctions

necessary to protect the public, and to do so without notice to a lawyer is

extraordinary and warrants a review by this Court,

The constitutional issue presented here is unencumbered by procedural

hurdles that would make it difficult for this Court to focus directly on the important

constitutional issue raised. Petitioner recognizes that this Court will deny certiorari

when “even though serious constitutional questions were raised, it seemed . . . that

the issue was either not ripe enough or too moribund for adjudication; that the

The quotes referenced are included to provide insight into the punitive nature of the opinion, while

Petitioner nevertheless asserts and stands by the lack of any evidence in the record that he actively

stole money or committed any crimes. The bookkeeping errors in his accounting records reflected

inaccurate client ledgers and disbursement of funds before deposit of corresponding instruments, but

at no time did a bank issue any insufficient funds notice, nor did any client lose a dime of money. The

state court’s opinion fails to mention either of these very significant facts.

question had better await the perspective of time or that time would soon bury the

question, or . . . it was desirable to wait and see; or the constitutional issue was

entangled

with

non-constitutional

issues

that

raised

doubt

whether

the

constitutional issue could be effectively isolated. . .” Darr v. Buford, 339 U.S. 200, 227

(1950) (Frankfurther, J., dissenting).

The South Carolina Supreme Court’s decision to announce a new burden of

proof in disciplinary proceedings, apply it to the instant case, and pretend nothing

has changed in its application of lawyer discipline posits the due process question

squarely and clearly for examination by this Court unencumbered.

CONCLUSION

Recognizing the discretion of this Honorable Court to review this matter,

Petitioner Wern respectfully asserts that the facts of this case a confluence competing

interests, i.e., the legitimate state interest in protecting the public vs. a desire on the

part of the state’s highest court to impose punishment, doing so by introducing a new

burden of proof and applying it without notice to a licensed lawyer to ensure the

imposition of punishment is loud and clear.

Doing so under these facts, where no

client was harmed or even complained, and when the Court has been warning ODC

for at least a decade that delay was not appropriate highlights the punitive intention

of the South Carolina Supreme Court’s action in this case.

WHEREFORE, Petitioner Wern respectfully requests review by this Court by

writ of certiorari of the decision of the South Carolina Supreme Court.

All of which is respectfully submitted,

s/ Desa Ballard