South Carolina Lawyer — March 2014
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Louis H. Lang

Lawyer-Legislator Protection

More than 30 years ago, the S.C. Supreme Court, declaring unconstitutional a statute granting lawyer-legislators limited protection from court appearances said, “[t]he authority of the court to grant continuances and to determine the order in which cases shall be heard is derived from its ... inherent power to control the order of its business to safeguard the rights of litigants.” Williams v. Bordon’s, Inc., 274 S.C. 275, 279, 262 S. E.2d 881, 883 (1980).

Since 2001 our Supreme Court has resurrected and expanded the unconstitutional statutory protection it struck down in Williams. While first limited in scope and duration, this judicially created lawyer-legislator protection is now absolute and extends for at least six, and in 2013 seven, months of the year. This protection fails “to safeguard the rights” of those litigants not represented by lawyer-legislators. It is unfair and unnecessary and should not continue.

In an administrative order dated May 17, 2001, lawyer-legislators were granted limited protection from being called to trial or hearing during the legislative session on condition the lawyer-legislator provide a list of cases where protection was sought. Excepted from protection were matters involving “extraordinary circumstances” where the substantial rights of the parties could be defeated or severely abridged by delay or involved “emergency relief and irreparable harm.” This order was modified on April 5, 2004, to declare protection “absolute” on all Tuesdays, Wednesdays and Thursdays of the legislative session, but hearings on Monday and Friday could be held if the lawyer-legislator did not ask for protection for those days.

An April 21, 2010, administrative order extended lawyer-legislator protection for 14 days following the end of the legislative session and deleted the exceptions for Monday and Friday hearings and for cases involving extraordinary circumstances— making the protection truly “absolute.” Only if the lawyer-legislator consented could trials and depositions be held during this extended period of absolute protection. Finally, a June 21, 2013, administrative order extended the period of absolute protection for 30 days from the last day the General Assembly votes on the general appropriations bill.

By invoking these administrative orders, lawyer-legislators can control at their whim the scheduling of all court and other tribunal appearances and some civil case discovery for the first six, and more likely seven, months of every year.

Lawyer-legislator protection is not a problem for the lawyer-legislator client, as the April 21, 2010, administrative order points out by saying lawyer-legislator protection “will benefit their clients.” Those clients have an option. They may be perfectly happy to let the case sit for six or seven months out of the year. Inactivity may be to their advantage.

A lawyer-legislator client can, however, instruct his lawyer-legislator to move the case along, try the case, file motions, go to hearings, take depositions, etc., and the lawyer-legislator would have to follow those instructions, or get out of the case.

Lawyer-legislator protection is a very real problem, however, for the client on the other side of the case, the side the administrative orders do not address or consider—the other “litigants” the Williams Court cites in discussing the inherent power of courts to control the order of their business to safeguard the rights, presumably, of all litigants.

Lawyer-legislator protection can deny the non-lawyer-legislator clients access to our courts for at least half of every year the case is pending. There can be no trial, no motion hearings, emergency hearings and little discovery. Unless the lawyer-legislator side consents, virtually nothing can be done to move the case along to resolution for six months of the year.

Lawyer-legislators fill an important role in our state’s governance. They are uniquely qualified by their education and training for government service. The job of a lawyer-legislator involves considerable sacrifice— the pay is low, the hours long and unless the lawyer-legislator lives in the Columbia area, he or she must spend much time away from home, family and, regardless of residence, away from his or her law practice.

However, William Gladstone said, “Justice delayed is justice denied.” U. S. Supreme Court Chief Justice Warren Burger observed court inefficiency and delay can drain “even a just judgment of its value …”

For the parties to a lawsuit, litigation is expensive, frustrating and time consuming. To create a class of lawyers who can control the schedule of a case for at least six and possibly seven months of the year, without regard to the court’s schedule or the opposing side’s desires or imperatives, tilts the level playing field of litigation. While this “tilting” may not be widespread, one injustice or “… just judgment drained of its value” from delay caused by lawyerlegislator protection is one too many.

Our legislature has 170 members— 46 senators and 124 House members. Forty-three are lawyers—15 senators and 28 House members. This leaves 127 members who are not lawyers who must make the same sacrifices and bear the same burdens as their lawyer colleagues. No other profession provides its members with anything like the “protection” provided lawyer-legislators.

Should lawyer-legislators be given this absolute protection? No. Has the practice of law changed in the 12 years since the first administrative order to justify the “protection creep” to where we find ourselves now? No again. What to do with the inevitable scheduling problems that will arise during the legislative session? In the time it may take to read this letter, certainly in the time it took to write it, at least one set, and probably dozens of sets of lawyers, sometimes with judges, often without, have discussed and resolved the numerous scheduling problems lawyers and judges encounter every day. Scheduling issues involving lawyer-legislators should be handled no differently.
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