Wednesday, October 29, 2008

Required Affidavit Of Compliance

Reciprocal discipline was imposed by the South Carolina Supreme Court based on the lawyer's suspension in a federal bankruptcy court. The lawyer had incompetently represented a client and been ordered to disgorge his fees in 24 matters. The court concluded that a two-year suspension was the appropriate sanction:

We find that the sanction imposed by the Bankruptcy Court is most similar to a two (2) year definite suspension with the requirement of repayment of unearned attorney’s fees or costs under the RLDE.  See Rules 7(b) (sanctions) and 33 RLDE (provisions regarding reinstatement following definite suspension from nine months to two years).  Further, we find that the same sanction is proper as reciprocal discipline in this matter...Accordingly, we hereby suspend respondent from the practice of law in this state for two (2) years, retroactive to August 16, 2006, the date of his interim suspension.  In the Matter of Edwards, supra.  In addition, respondent shall repay the twenty-four bankruptcy clients as ordered by the Bankruptcy Court’s orders.  Within fifteen days of the date of this opinion, respondent shall file an affidavit with the Clerk of Court showing that he has complied with Rule 30, RLDE, Rule 413, SCACR.

The affidavit of compliance, required by most courts in suspension cases, generally requires the attorney to demonstrate that all courts, opposing counsel and clients have been notified of the lawyer's suspended status and consequent inability to proceed as counsel. In my experience, many suspended lawyers fail to file such an affidavit. In D.C., that results in the suspension deemed not to have started for reinstatement purposes. The failure to file the affidavit thus results in a suspension without end. (Mike Frisch)

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