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Amicus by keralaguest

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									                         INTEREST OF AMICI CURIAE

       The undersigned County Bar Associations (“the Associations”) respectfully

submit this brief as amici curiae in support of the South Carolina Bar’s petition to

replace the existing version of Rule 608, SCACR. The Associations have filed a

motion for leave to file this brief pursuant to Rule 213, SCACR.

       As the Court is aware, the Associations promote the interests of the legal

profession for the benefit of both their professional members and the public at

large. Due to their status as local organizations, the Associations are particularly

cognizant of (and responsive to) the concerns and interests of their member

attorneys.   At present, those interests are largely focused on the issues

addressed in the South Carolina Bar’s petition to replace Rule 608, SCACR.

Indeed, the recent suspension of all Rule 608 payments by the South Carolina

Commission on Indigent Defense has only heightened those concerns and added

urgency to the pending petition.

       In urging the replacement of Rule 608, SCACR, the South Carolina Bar’s

petition seeks to protect the rights of its member attorneys, as well as the general

public. The Bar’s proposal would protect the rights of attorneys to receive fair

compensation for their professional services, but it would also protect the public

by preserving the rights of indigent citizens to receive effective legal

representation.   The Associations also support those goals, and this shared

purpose has motivated the Associations to submit this amici curiae brief.

       The Associations certainly concur with and support the arguments and

authorities set forth in the South Carolina Bar’s brief.     Yet, the Associations

                                      1
believe there are additional justifications for replacing Rule 608, SCACR, which

are not addressed in that brief. This brief, therefore, is not merely a repetition of

the arguments previously made by the South Carolina Bar. Rather, this brief

serves the purpose of an amici curiae brief by offering supplemental grounds in

support of the petition.




                                      2
                                ARGUMENT

                                      I.

      THE STATE OF SOUTH CAROLINA HAS AN IMPLIED-BY-
      LAW CONTRACT WITH APPOINTED ATTORNEYS, AND
      RULE 608 MUST BE REPLACED TO AVOID UNJUST
      ENRICHMENT.

       As the following discussion demonstrates, the State has an implied-

by-law contract (also known as a quasi-contract) with the attorneys it

appoints to represent indigent citizens.    This fact supports the South

Carolina Bar’s petition because quasi-contract serves as an equitable

basis for a person to recover the value of his goods or services from those

who have been unjustly enriched by them. See Myrtle Beach Hosp., Inc.

v. City of Myrtle Beach, 341 S.C. 1, 8, 532 S.E.2d 868, 872 (2000). Thus,

the existence of a quasi-contract makes it inequitable for the State to

retain the benefit of appointed attorneys’ services without paying for them.

Due to the State’s refusal to make those payments, this Court must

intervene and restore equity.

       A party claiming the existence of a quasi-contract must establish

the following elements: (1) a benefit conferred upon the defendant, (2) the

realization of that benefit by the defendant, and (3) the retention of the

benefit by the defendant under circumstances that make it inequitable for

him to retain it without paying its value. Myrtle Beach Hosp., 341 S.C. at

8-9, 532 S.E.2d at 872.     An application of this test to the relationship

between the State and attorneys appointed to represent indigents

pursuant to Rule 608, SCACR, demonstrates that a quasi-contract exists.



                                  3
       (1)     Benefits Conferred and Realized

       Under the current version of Rule 608, SCACR, the State receives

and realizes several benefits from the appointed attorneys.             First, the

system of appointing attorneys promotes the State’s interest in judicial

efficiency. The courts of this State operate more smoothly when all of the

parties in a given case have attorneys representing them.                  Those

attorneys understand the rules and procedures of the various courts, as

well as the temperament and expectations of the presiding judges. Pro se

litigants, on the other hand, do not possess that knowledge. No matter

how noble their intentions might be, pro se litigants lack the requisite legal

training and experience to navigate their ways through the judicial system.

Consequently, a case with a pro se litigant proceeds more slowly, as the

judges and other attorneys are forced to deal with the steep and inevitable

learning curve those litigants face. What might have been a relatively

simple matter suddenly becomes a tremendous time burden on the courts.

       Appointing attorneys to represent litigants who would otherwise be

representing themselves prevents (or at the very least limits) that

undesirable outcome. As a result, the cases involving appointed attorneys

proceed with fewer delays and a greater possibility of pre-trial resolutions.1


1
   When both sides are represented by counsel, the risks associated with a trial
apply with more force to all parties. For example, the involvement of a skilled
defense attorney creates a greater risk of an acquittal than there would be if the
defendant were pro se. Thus, the appointment of a defense attorney increases
the likelihood that the solicitor will be willing to propose or accept a plea deal.
The same logic also applies to contested DSS cases.


                                     4
This, in turn, promotes judicial efficiency by bringing cases to a close more

quickly. The increase in judicial efficiency is especially important in the

family courts and courts of general sessions, where backlogged dockets

continue to be a pressing concern and, in some cases, a constitutional

problem.

       Furthermore, this promotion of judicial economy is not an arbitrary

or incidental result of the Rule 608 system. The State actively appoints

attorneys to represent indigents, and it does so (at least in part) with the

express goal of making the judicial system run more smoothly.               The

attorneys do not volunteer to represent the indigent clients. Rather, the

State leaves them no choice in the matter. Thus, it is direct State action

that causes the appointed attorneys to assist in the promotion of judicial

efficiency. In other words, the State creates and imposes the system in

which the attorneys are forced to participate, and the State reaps the

resulting benefits.   As a result, the State cannot argue that increased

judicial efficiency is anything other than a direct, intended benefit.

       Basic judicial efficiency, however, is not the only positive result the

State receives from the current version of Rule 608.           The State also

receives and retains the quantum meruit value of the appointed attorneys’

unpaid legal services for representing indigents. Granted, the indigents

themselves benefit from those services as well. But this fact does not

make the benefit to the State any less real.         The State is required to

provide legal representation for indigents in certain situations, and it fulfills




                                    5
that obligation, in large part, through Rule 608. Thus, the current system

further aids the State by allowing it to satisfy its statutory duty to provide

representation in some cases without actually paying for the legal

services.   To say that this system directly “benefits” the State is an

understatement.

       The law does not require the State to provide legal representation

for indigents in all civil matters.   Yet, the South Carolina Code does

provide some instances where trial courts must appoint an attorney. For

example, an indigent is entitled to an attorney in post conviction relief

cases, sexually violent predator cases, termination of parental rights

hearings and child abuse and neglect hearings. See S.C. CODE ANN. §§

17-27-60, 17-27-160, 20-7-1570, 20-7-110 (2007). These statutes require

the State to provide attorneys to those who cannot afford them, and the

State uses Rule 608 appointments to meet its statutory duty in most (if not

all) of those cases.    As a result, the State directly benefits from the

attorneys’ compelled services. Simply put, the State satisfies its legal duty

at the attorneys’ expense.

       The State might argue against this assertion based on the Court’s

decision in Myrtle Beach Hosp., Inc. v. City of Myrtle Beach, 341 S.C. 1,

532 S.E.2d at 869 (2000).        Any such reliance would be misplaced,

however, because Myrtle Beach is distinguishable. Although that case

addresses the same general legal issue as the present situation, it lacks a

key element that establishes the existence of a quasi-contract between the




                                  6
State and the appointed attorneys.

       In Myrtle Beach, the plaintiff hospital sought reimbursement under a

quasi-contract theory for medical services its staff provided to the City’s

pretrial detainees. The hospital relied in large part on the argument that

the   City   benefited    from   those    services    because      the   City   was

constitutionally required to see that its pretrial detainees received

necessary medical care. The hospital claimed its actions benefited the

City by allowing it to fulfill those constitutional obligations.

       This Court ultimately considered the issue and disagreed with the

hospital’s position.     Although it acknowledged the City’s constitutional

obligations, the Court focused on the absence of any state law requiring

the City to pay for the medical services it was supposed to obtain for

pretrial detainees. The Court concluded the lack of such a requirement

meant the City did not benefit directly from the hospital’s services.

Instead, the Court found the pretrial detainees received the direct benefit,

and the City received only an incidental benefit. 341 S.C. at 9-10, 532

S.E.2d at 873.      Thus, no direct benefit to the City existed, and the

hospital’s quasi-contract claim failed. Id.

       The present situation differs from Myrtle Beach in at least one

significant respect. As discussed above, the Court found no state laws

requiring the City to pay for medical services obtained for pretrial

detainees, and this factored heavily into the Court’s decision. But in the

present situation, South Carolina law does impose a duty on courts to




                                     7
reimburse appointed attorneys. In addition to the State’s constitutional

prohibition    against     taking   property   for   public   use   without   just

compensation,2 there are several state laws that impose a duty on the

court to pay legal fees for attorneys appointed in indigent defense cases.

         Under the Uniform Post Conviction Relief Act, for example, courts

are required not only to appoint counsel for indigents, but also to pay court

fees, including the “costs and expenses of representation.” S.C. CODE

ANN. § 17-27-60.         Similarly, the Family Court Rules entitle appointed

attorneys in child abuse and neglect proceedings to receive a fee not to

exceed $100, unless the court determines extraordinary circumstances

warrant a larger fee. Rule 41, SCRFC. In addition, S.C. Code § 44-48-90

requires reimbursement for the services of attorneys in sexually violent

predator cases. See State v Cooper, 342 S.C. 389, 402, 536 S.E.2d 870,

877 (2000).       All of these authorities require the State to pay for the

attorneys it appoints. Again, this important factor was absent in Myrtle

Beach.

         An examination of other relevant legislation demonstrates that the

State is aware of this financial obligation. In State v Cooper, supra, the

Court acknowledged that Part IB of the 1999 state appropriations act

included funds to pay for the services of attorneys appointed to sexually

violent predator cases. 342 S.C. at 402, 536 S.E.2d at 877. 3 Subsequent


2
    See S.C. Const. art. I, § 13.
3
  In fact, the Court concluded the Act’s language was broad enough to cover not
only attorney’s fees, but also the fees of experts hired by those attorneys.


                                      8
yearly appropriation bills have included the same language designating

money to pay attorneys appointed to represent indigent clients in civil

matters. See 2008-9 Ann. Appr. Act, H. 4800, 117th Gen. Assem. Part IB,

§ 47 (S.C. 2008); 2007-8 Ann. Appr. Act, H. 3620, 116th Gen. Assem. Part

IB, § 35 (S.C. 2007); 2006-7 Ann. Appr. Act, H. 4810, 115th Gen. Assem.

Part IB, § 35 (S.C. 2006); 2005-6 Ann. Appr. Act, H. 3716, 114th Gen.

Assem. Part IB, § 35 (S.C. 2005). Section 47.5 of Part IB of the 2008-9

appropriation act specifically states:

              The funds appropriated under "Civil Court
              Appointments" shall be used for Civil Court
              Appointments including Termination of Parental
              Rights, Abuse and Neglect, Probate Court
              Commitments, Sexually Violent Predator Act,
              and Post Conviction Relief (PCR) to reimburse
              court appointed private attorneys and for
              other expenditures as specified in this
              provision. Civil Court Appointments funds
              may not be transferred or used for any other
              purpose. (emphasis added).

Thus, the legislature continues to acknowledge the State’s obligation to

pay for the services of appointed attorneys, even though (as discussed in

the South Carolina Bar’s brief) it has failed to actually make those

payments.

       Clearly, then, South Carolina courts have a legal duty not only to

appoint attorneys to represent indigents in certain situations, but also to

pay for those services. The city in Myrtle Beach, on the other hand, had

only a duty to make sure medical care was provided; it had no statutory

obligation to pay others for providing that care.    This is a significant




                                   9
distinguishing factor.

       Another distinguishing factor involves the types of people for whom

the appointed services are intended. There was no indication that all (or

necessarily any) of the pretrial detainees in Myrtle Beach were unable to

pay for the medical services.        As this Court pointed out, some of the

detainees might have had sufficient funds to cover the costs of medical

care, and those that did not might have had health insurance. Still others

might have qualified for Medicaid. There was simply no way to conclude

that the hospital would fail to receive any compensation for the medical

care if the City did not pay for it. Other possibilities for payment existed,

and the hospital was free to explore them.

       No such alternatives exist for attorneys appointed under Rule 608.

By the time an appointment occurs, the court has already determined that

the individual cannot afford legal representation. Thus, there is no realistic

expectation (or possibility) that the client will be capable of paying the

appointed attorney.      The attorney’s compensation must come from the

State. Indeed, the law acknowledges this reality by requiring the State to

pay for the attorneys it appoints.

       In short, Myrtle Beach is distinguishable and does not affect the

quasi-contract analysis in the present situation.     Unlike the city in that

case, the State has a statutory obligation to pay for the services of

appointed attorneys. In addition, the hospital in Myrtle Beach had other

potential sources of payment, which are not available for appointed




                                     10
attorneys. Thus, Myrtle Beach has no bearing on this issue.

       The State clearly benefits from the legal representation provided by

appointed attorneys in the Rule 608 system. The work of those attorneys

allows the State to fulfill its statutory obligation to provide representation to

indigents in certain settings, and it also promotes the fairness and

efficiency of the State’s court system. These are direct and significant

benefits realized by the State, and there is simply no basis for any other

conclusion. Therefore, the first two elements of a quasi-contract exist in

this situation.

       (2)        Inequitable Retention of the Benefit

       The third element of a quasi-contract claim is also present. As

discussed above, the State receives substantial benefits from the work of

the appointed attorneys. And yet, under the current scheme, the State

manages to avoid paying for those benefits. The State simply takes the

time and effort of the appointed attorneys and then leaves them with

nothing to show for their labors. This is the unfair arrangement the Bar’s

petition seeks to end.

       As a threshold matter, it is important to note once again that

attorneys do not volunteer for Rule 608 appointments. The attorneys of

South Carolina devote considerable time and effort to various pro bono

cases and projects every year, and those things are voluntary. But Rule

608 appointments are different. To borrow a famous movie phrase, those

appointments are “offers they can’t refuse.” The State simply forces the




                                      11
appointments upon the attorneys as a condition of a license to practice law

in South Carolina.

       This situation might not be inequitable (or, at least, that point might

be debatable) if the State fulfilled its obligation to pay the attorneys a fair

amount for their work. Under the current system, however, the State does

not compensate the attorneys at all. Nevertheless, the State continues to

make the appointments and to accept the benefits of the attorneys’ efforts.

Simply put, the State takes the time, effort, and skills of the appointed

attorneys, but gives nothing to them in return.

       If the attorneys’ participation in the Rule 608 system were

voluntary, the State’s failure to pay for their services would not be

inequitable.   In that scenario, the State would be the recipient of a

gratuitous benefit, and there would be no expectation of any payment.

Again, though, this is not the system that exists. Rule 608 appointments

are involuntary, and the benefits they give to the State come at a price –

one that the State is required to pay.

       Equity and basic public policy dictate that an attorney should

receive compensation for his or her work.         See Eleazer v. Hardaway

Concrete Co., 281 S.C. 344, 315 S.E.2d 174 (Ct. App. 1984) (“[a]s a

matter of common justice and as a matter of public policy, Courts must

protect attorneys when their conduct has been . . . fair . . .”) (quoting Adair

v. First Nat’l Bank, 139 S.C. 1, 7, 137 S.E. 192 (1924)). The professional

services of appointed attorneys should be no different. The appointed




                                   12
cases require the same time and skills for which attorneys charge other

clients, and there is no expectation that the attorneys should represent

those clients without compensation. Indeed, if those clients refused to pay

for the attorneys’ services, the attorneys would have valid legal claims for

payment. Should it be any different simply because the “person” who

refuses to pay is the State?      The answer is obvious.       Yet, the State

perpetuates this double-standard through its (as of yet) unchecked refusal

to pay for the services it obtains from appointed attorneys.

       The work of the appointed attorneys allows the State to fulfill its

statutory and constitutional obligation to provide representation for indigent

litigants in certain settings. It also eases the burden on the State’s courts

and promotes judicial efficiency. The State receives and retains those

significant benefits, but it does not currently pay for them. This is the very

definition of an inequitable retention of a benefit, and it certainly satisfies

the final element of a quasi-contract claim.

       (3)    Conclusion

       The State benefits directly from the efforts of the attorneys

appointed to handle cases under Rule 608, and the State should be

required to pay for those benefits. In fact, the State is required to pay for

the work of the appointed attorneys; it simply is not doing so under the

current system. This is why a change in Rule 608 is necessary.

       If the appointed attorneys were to assert a quasi-contract claim

against the State, they would be successful and entitled to relief. Although




                                   13
this Court is not in a position to award the attorneys of South Carolina

reimbursement for past unpaid efforts, the Court can certainly prevent

future unjust enrichment to the State by granting the South Carolina Bar’s

petition to replace Rule 608. Based on the arguments and authorities

discussed above, the Associations urge the Court to do just that.


                                       II.

      THE STATE OF SOUTH CAROLINA HAS AN IMPLIED-IN-
      FACT CONTRACT WITH THE ATTORNEYS IT APPOINTS
      FOR INDIGENTS, AND THE COURT MUST REPLACE
      RULE 608 TO ENSURE APPOINTED ATTORNEYS
      RECEIVE COMPENSATION.

       The State requires attorneys to provide legal services to its indigent

citizens in certain types of cases. As discussed above, the State receives

direct benefits from those legal services. The attorneys undertake the

representation with the knowledge that failing to do so could result in the

loss or suspension of their law licenses. But the attorneys also represent

the indigent clients with an understanding (based on, inter alia, the laws

and court rules of South Carolina) that the State will compensate them for

their legal work. This arrangement gives rise to an implied-in-fact contract

between the State and the appointed attorneys, which serves as another

basis for granting the South Carolina Bar’s petition.

       An implied-in-fact contract arises when one party requests the other

perform services for his benefit. In Stanley Smith & Sons v. Limestone

College, the Court of Appeals clarified the elements required to prove an

implied-in-fact contract. 283 S.C. 430, 322 S.E.2d 474 (1984).



                                  14
Specifically, the conduct of the parties must demonstrate: (1) consideration

between the parties, (2) an agreement that one party provide services to

the other, and (3) an understanding that the party providing services will

be compensated. 283 S.C. at 434, 322 S.E.2d at 477. As an examination

of the current situation reveals, the relationship between the State and the

appointed attorneys satisfies this test.

       Consideration exists in this arrangement because both sides enter

into it with expectations of some benefit.        The State actually receives

benefits in having attorneys represent its indigent citizens. As previously

discussed, this system makes the State’s courts fairer and more efficient,

and it also satisfies the State’s statutory obligations to appoint attorneys

for certain indigent litigants. The attorneys’ consideration for providing the

services is a reasonable expectation of compensation for their professional

services.   Even though the attorneys are not currently receiving the

promised payments, they reasonably expect the State to make them.

Thus, there is consideration between the parties to support the presence

of an implied-in-fact contract.

       The second element is also present because an agreement exists

in which the attorneys provide services to the State.4              Granted, the

“agreement” is not a voluntary one in the traditional sense of that term.

Participation in the Rule 608 system is mandatory for most attorneys, and

they face potential sanctions for failing to fulfill their obligations. But the

4
     As discussed above in Section I, it would be erroneous to suggest that the
attorneys provide services solely to the indigents. The State clearly benefits from
the attorneys’ services, which they provide at the State’s behest.


                                    15
system is nevertheless an agreement because both sides enter into it with

duties and expectations. The State expects the attorneys to use their

skills to represent the indigents and has a duty to pay for the legal

representation. The attorneys have a duty to represent their appointed

clients and reasonably expect the State to honor its duty to pay. Thus, the

second element of the implied-in-fact contract test is also satisfied.

        Similarly, the third element exists because the attorneys have a

reasonable expectation of payment for the services they provide for the

State. The analysis and outcome might be different if the attorneys truly

volunteered for appointments to represent indigent litigants. In that case,

the attorneys could not reasonably expect to be paid by anyone. They

would be true volunteers undertaking pro bono work, just as many South

Carolina attorneys do in other contexts. The actual situation is different,

however. The attorneys have no choice but to accept the appointments,

and the involuntary nature of the arrangement justifies an expectation that

the attorneys will be compensated for the time and skills they expend. 5

        Significantly, though, the expectation of payment is not one-sided.

The State also contemplates compensating the attorneys for their work on

appointed cases. In its annual appropriations bills, the General Assembly

has included funds to pay for indigent appointments in both civil and

criminal cases. Constitutional provisions, statutes, and court rules also


5
     The situation is loosely analogous to a military draft. Draftees are “forced” into
military service, and there are penalties for a refusal to serve. Yet, the draftees
still reasonably expect payment for their work, and the government is obliged to
provide it.


                                      16
indicate attorneys should be paid for their services in appointed cases.

See, e.g., S.C. Const. art. I, § 13; S.C. CODE ANN. § 17-27-60 (2007); Rule

41, SCRFC. As these authorities demonstrate, the State acknowledges

the appointed attorneys are entitled to (and should receive) payment for

their services. Thus, both sides of the arrangement operate under that

assumption. As a result, the third element of the implied-in-fact contract

test is satisfied.

        Furthermore, South Carolina’s statute of frauds poses no problem

to this legal theory. The statute of frauds requires contracts for services

that will take longer than a year to perform to be in writing. S.C. CODE ANN.

§ 32-3-10 (2007). In appointed cases, attorneys typically must provide

their services for more than a year. On a surface level, therefore, the

statute of frauds might appear to be a “defense” to the implied-in-fact

contract analysis. Because the statute of frauds was designed to prevent

fraud, however, there are exceptions to this rule for situations where using

it would result in unjust enrichment.

        Here, applying the statute of frauds in the context of legal

representation would lead to unjust enrichment.         Rule 608 requires

attorneys to fully represent their clients, or pay another attorney to do so.

This requirement often means the attorneys will have the appointed cases

for longer than one year, simply because those types of matters rarely

conclude within a shorter time. But due to their Rule 608 and ethical

obligations, the attorneys must continue to represent their appointed




                                  17
clients no matter how it takes to complete the cases. By the time the

cases are over, the attorneys have usually put considerable time and effort

into them and, again, the State has benefited from those labors. Thus,

allowing the State to oppose compensation for the attorneys based on a

statute of frauds argument would lead to an inequitable result – i.e., the

retention of the benefits by the State without paying for them.

       In addition, “full performance” is another exception to the statute of

frauds in this situation. Even when the work cannot be performed entirely

within one year, the fact that it is completed in full (albeit after more than

one year) can make the statute of frauds inapplicable. See Hughes v.

Edwards, 265 S.C. 529, 220 S.E.2d 231 (1975).                   In Rule 608

appointments, the attorneys must complete their work in full before the trial

court can relieve them from the representation.         Thus, this exception

necessarily applies to Rule 608 appointments.

       Finally, the order of appointment issued by the trial court

memorializes the contract and takes it outside the scope of the statute of

frauds. Significantly, the clerk of court signs the appointment orders. This

means the appointment order is a writing that sets forth the agreement and

is signed by an agent of the State. As a result, the use of appointment

orders renders moot any statute of fraud concerns.

       The implied-in-fact contract analysis applies to this situation and

supports a conclusion that the appointed attorneys are entitled to payment

for their services. Thus, this theory provides still another basis for granting




                                   18
the South Carolina Bar’s petition and replacing Rule 608.

                                        III.

      UNDER THE EQUITABLE THEORY OF PROMISSORY
      ESTOPPEL, THE STATE OF SOUTH CAROLINA MUST
      COMPENSATE ATTORNEYS FOR THEIR LEGAL
      SERVICES IN APPOINTED CASES.

       The concept of promissory estoppel also supports compensating

attorneys appointed under Rule 608.            A party asserting a promissory

estoppel claim must demonstrate: (1) an unambiguous promise, (2)

reasonable reliance upon that promise, (3) the reliance is expected and

foreseeable by the promising party, and (4) an injury resulting from the

reliance. Rushing v. McKinney, 370 S.C. 280, 295, 633 S.E.2d 917, 925

(Ct. App. 2006). All of those elements are present in this situation.

       As discussed above, the State clearly recognizes its obligation to

pay appointed attorneys for their services. See, e.g., 2008-9 Ann. Appr.

Act, H. 4800, 117th Gen. Assem. Part IB, §47 ( S.C. 2008); S.C. Const.

art. I, §13; S.C. CODE ANN. §17-27-60 (2007); Rule 41, SCRFC.             The

codification of this duty (and/or the appropriation of funds for fulfilling it)

makes the “promise to pay” unambiguous. The laws in which it appears

are required to be certain, clear, and made so that people can understand

them. For the State to argue the promise is ambiguous, therefore, the

State would have to attack its own legislative acts.

        By the same reasoning, the presence of the “promise to pay” in the

laws of South Carolina makes the attorneys’ reliance upon that promise

reasonable and foreseeable by the State. If attorneys cannot reasonably



                                   19
rely upon the State’s assurances expressed in its laws, what can they rely

upon? And if the State does not intend (or cannot foresee) that others will

rely on those assurances, why make them at all? There are no answers to

those questions, and thus, the second and third elements of promissory

estoppel are satisfied.

        The existence of the final element is obvious.         The appointed

attorneys expend their time, skills, and resources to represent their

indigent clients at the behest of the State. But the attorneys receive no

compensation for that work. As a result, the attorneys lose a portion of

their livelihood. This certainly constitutes an injury sustained as a result of

the attorneys’ reliance.

        Promissory estoppel applies to this situation and requires the State

to compensate attorneys for their work on appointed cases. Since the

State is not currently meeting this requirement, the Court should grant the

South Carolina Bar’s petition and replace Rule 608.

                                       IV.

        REPLACING RULE 608 WILL HELP AVOID FUTURE
        DEBATE AND LITIGATION REGARDING THIS ISSUE.

        Obviously, the claims and remedies discussed in this brief are

theoretical in nature right now. The Associations are not asserting any

claims for relief in this Court; they are simply supporting the South Carolina

Bar’s petition. But the analysis is important to consider because it gives a

preview of what the future might hold if Rule 608 is not replaced at this

time.



                                  20
       The South Carolina Bar’s petition represents the “first option” for

seeking the replacement of Rule 608. By granting the petition, the Court

would force the legislature to take action. The General Assembly would

have to either create and fund agencies to handle indigent representation,

or provide and guarantee adequate funding for an appointment system.

Either way, the current problem would be resolved without further court

proceedings.

       If, on the other hand, the General Assembly is not forced to address

and solve this problem, South Carolina’s attorneys may have no choice but

to pursue legal actions against the State. Essentially, the attorneys would

claim that the State has unjustly retained the benefits of their efforts in

appointed cases and that they should recover the value of those benefits.

Consequently, the legal theories discussed in this brief would no longer be

theoretical exercises.   They would suddenly be viable (and potentially

large) claims against the State. While those claims and actions could be

successful (as this brief has argued), they could also lead to problems for

both sides of the dispute.

       First, the State’s potential exposure would be sizable and

unpredictable. Different attorneys would not all have the same amounts of

appointed cases. In addition, the average billable rates charged would

vary greatly among the attorneys. If successful legal claims were asserted,

the measure of damages would be the losses of each individual attorney

(i.e., that attorney’s average billable rate multiplied by the amount of time




                                  21
spent on the case).      Thus, the State could be incurring legal bills at

unexpectedly high rates as long as the Rule 608 issue remains unresolved.

All of these factors and differences would make it nearly impossible for

anyone to estimate the total amount due to the state’s appointed attorneys

(assuming a favorable outcome on the claims asserted). And even if the

attorneys’ actions were unsuccessful, the State would still incur significant

legal expenses defending against those claims. From a fiscal planning

standpoint, therefore, legal claims by appointed attorneys could be

potentially disastrous for the State.

       Second, legal actions by the state’s attorneys could strain the

relationships between those attorneys and the State, including its courts.

As a result, efforts to solve other problems facing South Carolina’s judicial

system could be hampered. This is certainly not a situation that anyone on

either side of the debate would want to see, but it could happen if litigation

resulted from the Rule 608 issue.

       Finally, litigation over this issue would almost certainly generate

publicity that would be harmful to the legal profession as a whole. The

public is already wary of attorneys and the courts, and a fight over money

(as it would likely be portrayed by the media) would do nothing to improve

that image. This is especially true given the current economic climate,

which would only contribute to the public’s skepticism and frustration with

the dispute. Again, this is not a desirable result, but it is one that could

easily occur if continued legislative inaction necessitates future litigation.




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          As the South Carolina Bar suggests in its brief, and as the

Associations’ members have made clear, the current system of Rule 608

appointments has reached a breaking point. Something must be done to

correct the burdensome and inequitable system that has resulted from the

General Assembly’s failure to respond to Rule 608 in its nearly nine-year

existence. The system as it currently exists simply cannot continue any

longer.

          Like the South Carolina Bar, the Associations would very much

prefer to see the Court address the matter now by granting the petition and

putting the proverbial ball back into the legislature’s court.    That move

would eliminate (or at least reduce) the likelihood of future litigation over

this issue and the problems inherent in such litigation. Granting the petition

would also allow the General Assembly to craft its own solution to this

issue. This would be an equitable result, as it would force the State to fix

the problem it has created by failing to compensate appointed attorneys. It

would also be the result that would best serve the interests of the legal

community as whole.

                               CONCLUSION

          For all of these reasons, as well as those set forth in the South

Carolina Bar’s brief, the Associations urge the Court to grant the petition

and replace Rule 608 with the new version proposed by the Bar.

                          (Signature on next page.)




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Respectfully submitted,


_______________________________
R. Hawthorne Barrett
Turner Padget Graham & Laney P.A.
P.O. Box 1473
Columbia, SC 29202
(803) 227-4219
tbarrett@turnerpadget.com

Attorneys for Amici Curiae:

Abbeville County Bar Association
Aiken County Bar Association
Allendale County Bar Association
Calhoun County Bar Association
Charleston County Bar Association
Chester County Bar Association
Clarendon County Bar Association
Dillon County Bar Association
Fairfield County Bar Association
Florence County Bar Association
Greenville County Bar Association
Horry County Bar Association
Lee County Bar Association
Lexington County Bar Association
Marion County Bar Association
Richland County Bar Association




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