Attorneys – Misconduct During Mediation – South Carolina Alternative Dispute Resolution Rules

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Nothing in subsections (a) or (g) of Rule 8, SCADR, prohibits Petitioner from responding to the Office of Disciplinary Counsel’s (ODC) investigative inquiry. Accordingly, this matter presents no conflict between the relevant provisions of the South Carolina Alternative Dispute Resolution Rules and the Rules of Professional Conduct.

Declaratory judgment issued.

Petitioner filed a petition for original jurisdiction and a complaint asking this Court to declare whether a mediator is required to respond to a request for information from the Office of Disciplinary Counsel (ODC) in connection with its investigation into whether misconduct occurring during a mediation or whether Petitioner is required or permitted to decline ODC’s request on the basis of confidentiality as set forth in Rule 8 of the South Carolina Alternative Dispute Resolution Rules. ODC filed a return joining Petitioner’s request that this Court exercise its original jurisdiction in this matter and requesting that this Court declare that Petitioner is required to respond to its investigative inquiry. The petition for original jurisdiction is granted, and we declare that nothing in the South Carolina Alternative Dispute Resolution Rules precludes Petitioner from responding to ODC’s investigative inquiry in this matter.

Petitioner is an attorney who also serves as a certified mediator. The ODC received a complaint about certain conduct of an attorney (Lawyer) who represented a client in a mediation conducted by Petitioner. The complaint alleged Lawyer engaged in behaviors during the mediation that raise serious questions as to his then-present ability to provide his client competent representation1 In the course of investigating this complaint, ODC requested Petitioner provide a written statement about Petitioner’s observations of Lawyer’s demeanor during the mediation. Petitioner declined to provide a statement and, instead, filed the instant action in this Court seeking a declaration of his duties and obligations under Rule 8 of the Alternative Dispute Resolution Rules and the Rules of Professional Conduct, Rule 407, SCACR.

Although Petitioner acknowledges the confidentiality exception of subsection (c)(5), Petitioner nevertheless argued he cannot divulge any details of anything that occurred during the mediation. Essentially, Petitioner argued that a mediator in particular, as distinguished from a party or counsel, “shall not be compelled . . . to divulge any records or to testify in regard to the mediation” pursuant to subsection (g) of Rule 8, SCADR. In other words, Petitioner takes the position that this subsection establishes what would essentially be a blanket prohibition preventing a mediator from disclosing anything that may have occurred during the mediation. In response, ODC argued that its investigative inquiry in this matter focuses on Lawyer’s conduct and demeanor during the mediation, not on any communication relating to the substance of the mediation. Thus, according to ODC, subsection (g) does not prohibit Petitioner’s cooperation with the investigation, as subsection (g) applies only insofar as confidentiality has already attached to a communication. Accordingly, because Lawyer’s demeanor during the mediation is not considered a “mediation communication,” no confidentiality has attached to it, and Petitioner is not prohibited from disclosing to ODC the details of Lawyer’s demeanor during the mediation.

Because the information ODC seeks relates to Petitioner’s observations of Lawyer’s demeanor during the mediation—namely, whether Lawyer’s behavior indicated he was intoxicated—the investigative inquiry does not relate to any communication regarding the substance of the mediation.

Declaratory judgment issued.

Anonymous Mediator/Attorney v. South Carolina Office of Disciplinary Counsel (Lawyers’ Weekly No. 010-042-25, 4 pp.) (Per Curiam) William C. Wood, Jr., of Nelson Mullins Riley and Scarborough LLP, of Columbia, for Petitioner. Disciplinary Counsel William M. Blitch, Jr., Senior Assistant Disciplinary Counsel Kelly Boozer Arnold, Deputy Disciplinary Counsel Ericka McCants Williams, and Assistant Disciplinary Counsel Phylicia Yvette Christine Coleman, all of Columbia, for the Office of Disciplinary Counsel. South Carolina Supreme Court