Contingency Fees in South Carolina Criminal Law Cases

I practice quite a bit of South Carolina criminal law on the defense side.  In other words, if someone is charged with a criminal offense in South Carolina, I am often retained (or hired) to represent and defend these individuals.  Over the years, I have noticed that there are many misconceptions about how attorneys charge for their services.  I hope that this article, along with others I plan to write on the issue of South Carolina attorney fees, provides some insight for those seeking legal services in South Carolina.

Many clients have seen attorneys on television advertising that they “do not get paid unless you get paid” or some similar language.  In my experience, the great majority of these attorneys are personal injury attorneys representing those injured in car accidents, or otherwise due to allegations of negligence against some third party.  These attorneys are seeking to represent potential “Plaintiffs” – those who would seek compensation for losses caused due to someone else’s negligence.  In the South Carolina personal injury world, it is quite common, if not the “norm” in my experience, for these attorneys to 1) provide some form of a free consultation to potential or prospective clients, and 2) to take or accept injury cases when representing Plaintiffs on a contingency fee basis.

What is a contingency fee?  In its simplest terms, a contingency fee means that the lawyer or law firm representing you in a personal injury case will charge a percentage of the recovery (or money paid to you as the result of a settlement or legal verdict) as his or her fee.  This percentage is how that lawyer gets paid and pays his or her overhead (such as staff, office rent, telephone, etc.).  There is often a shared risk element here – if the attorney is not successful in obtaining a favorable outcome for the client, the attorney may not be able to collect his or her fee and the client also does not get compensated for the alleged injury or loss.  This article is not meant to get into the intricacies of contingency fee contracts, but it is this point that leads into the purpose of this article.

In South Carolina, a criminal defense attorney representing an individual charged with a criminal law offense cannot charge a contingency fee for representation.  This is not a business decision on the part of the lawyer, but is instead an absolute prohibition by Court Rule.

The exact South Carolina Rule is as follows:

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof, provided that a lawyer may charge a contingency fee in collection of past due alimony or child support; or

(2) a contingent fee for representing a defendant in a criminal case.

An example would be as follows: a South Carolina criminal defense attorney could not tell a client, in my opinion based on my interpretation of the Rules governing attorney-client relationships in South Carolina, “I will represent you in your Hilton Head Island DUI case, and if I get the charge dismissed, you pay me $10,000.00, but if not, then you pay me nothing”.  In a contingency fee case, the attorney is essentially hoping to get paid by taking a portion of a recovery received from some third-party in the future, and not necessarily from the client’s direct funds.  In the criminal defense world in South Carolina, money damages are not being sought from some third-party, but instead the State of South Carolina is seeking to potentially penalize and/or jail/imprison an individual.  This is a very different scenario.  What does this mean as a practical matter?

1) A South Carolina criminal defense attorney is much more likely to charge an initial consultation fee for a potential criminal client than an attorney meeting with a prospective or potential personal injury client.  Why?  The attorney cannot seek payment from a future potential monetary recovery, and the attorney has overhead to pay, such as staff, utilities, bar dues, etc.  I have actually had prospective clients call and demand a “free consult” in criminal law matters, claiming the person had a “right” to this.  This could not be further from the truth – a free initial consultation in this realm is a business decision on the attorney’s part, and there is certainly no constitutional right, for instance, to a free initial consultation with a South Carolina criminal defense attorney.  Point two below will further illustrate why attorneys outside of the personal injury Plaintiff’s realm often charge consultation fees.

2) Though there are many ways of charging South Carolina criminal clients for representation, the most common in my experience are charging by the hour or charging via a flat fee representation agreement.  For example, an attorney may charge X dollars per hour for representation, or the attorney may charge some flat fee or amount, such as Y dollars, for the entire representation.  If a criminal defense attorney charges by the hour in particular, the attorney is still paying overhead and not working on other paying matters while meeting with a prospective client.  Initial consultations in criminal law matters can often take up to two hours in my experience in order to fully and competently explain the situation and provide an overview of potential legal options – if the attorney is not charging a fee for this service, the attorney is likely not bringing in any revenue for this time.

While I plan to write further on attorney fee matters, this article is meant to provide some general background on this topic.  A South Carolina criminal defense attorney should be willing to discuss fees and costs of representation with you.  This conversation normally happens during the initial consultation.  Please just remember that the attorney is forbidden from taking your South Carolina criminal law case on a contingency fee basis.  As a practical matter, this means that either you or someone on your behalf will need to be able to provide some or all of the funds for representation in order to retain the attorney.

If you would like to speak with an attorney from our firm concerning your criminal law matter or other legal matter, please call us at (843) 474-0614 or toll free at (800) 996-0683. We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).  Our primary office is located on the South End of Hilton Head Island in Orleans Plaza, at 37 New Orleans Road, Suite V, Hilton Head Island, SC 29928.

Our practice areas are primarily limited to Criminal Law (including, but not limited to, South Carolina felony charges, South Carolina misdemeanor offenses, and state level ICE Holds), and Family Law (including, but not limited to custody, contested divorce, uncontested divorce, alimony, equitable distribution, child support, visitation, separation agreements, and Guardian ad Litem appointments).  The firm handles other matters (non-Family and/or Criminal Law) only on a case-by-case basis.

This article was written by Dustin Lee, a South Carolina licensed attorney.  The information contained in this article is not and is not to be construed as legal advice.  This article was written in June of 2015 – changes to South Carolina law may occur or may have occurred since publication.

 

Shoplifting Statute/Law in South Carolina – S.C. Code Ann. Section 16-13-110

South Carolina has a vast number of criminal offenses one can be charged with violating, some statutory (where one can actually “look them up in the code of laws”), and some at common law (essentially judge made law that has accumulated over time). As I browse through client “rap sheets” and current arrest jail logs, I frequently see “shoplifting” listed. The South Carolina statute (written law created by our state legislature) on point was last amended, as of this writing, in June of 2010, and is located at S.C. Code Ann. Section 16-13-110 (Cite as S.C. Code § 16-13-110). The law is written as follows (as of this writing – December, 2012):

“(A) A person is guilty of shoplifting if he:

(1) takes possession of, carries away, transfers from one person to another or from one area of a store or other retail mercantile establishment to another area, or causes to be carried away or transferred any merchandise displayed, held, stored, or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use, or benefit of the merchandise without paying the full retail value;

(2) alters, transfers, or removes any label, price tag marking, indicia of value, or any other markings which aid in determining value affixed to any merchandise displayed, held, stored, or offered for sale in a store or other retail mercantile establishment and attempts to purchase the merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of the full retail value of the merchandise;

(3) transfers any merchandise displayed, held, stored, or offered for sale by any store or other retail mercantile establishment from the container in which it is displayed to any other container with intent to deprive the merchant of the full retail value.

(B) A person who violates the provisions of this section is guilty of a:

(1) misdemeanor triable in magistrates court or municipal court, notwithstanding the provisions of Sections 22-3-540, 22-3-545, 22-3-550, and 14-25-65, and, upon conviction, must be fined not more than one thousand dollars or imprisoned not more than thirty days if the value of the shoplifted merchandise is two thousand dollars or less;

(2) felony and, upon conviction, must be fined not more than one thousand dollars or imprisoned not more than five years, or both, if the value of the shoplifted merchandise is more than two thousand dollars but less than ten thousand dollars;

(3) felony and, upon conviction, must be imprisoned not more than ten years if the value of the shoplifted merchandise is ten thousand dollars or more.”

This post is not meant to give nor should it be relied upon as legal advice and it will not delve into all of the numerous intricacies, elements, defenses, and the like of the shoplifting statute; however, if you or a loved one have been arrested or contacted for questioning regarding possible shoplifting (for example: the Bluffton Police Department, Beaufort County Sheriff’s Department (BCSO), Jasper County Sheriff’s Department (JCSO), Beaufort City Police Department, etc. has made an arrest), it is often beneficial to contact a licensed South Carolina attorney that practices in the area of criminal law. While “shoplifting” a $60.00 polo style shirt from a local clothing store may be classified upon first blush as a misdemeanor above, S.C. Code Section 16-1-57 may come into play, which could change the potential sentence (depending on one’s past criminal history). S.C. Code Ann. Section 16-1-57 will be discussed at length in a future blog entry on this site, but, in short, if you or your loved one have any criminal record involving property type offenses where the penalty was in part determined by the value of the item(s) at issue, the above listed penalties (even for the “least serious misdemeanor level” shoplifting offense) may be superseded by Section 16-1-57 with a Class E Felony sentence of up to ten (10) years (a licensed South Carolina attorney should be consulted to assist in this determination). It is extremely important to be honest with your attorney regarding your complete past criminal record, no matter how small the prior conviction or guilty plea.

If you or loved one (the person under investigation or being charged with shoplifting) are anything other than a natural born or naturalized United States citizen, an immigration attorney should be consulted prior to accepting any plea deal and/or pleading guilty, or proceeding to trial, as a conviction for shoplifting could have adverse immigration consequences. State determinations of crimes of “moral turpitude” (example: if South Carolina considers an offense a crime of moral turpitude via case law) are not necessarily determinative of federal determinations of crimes of moral turpitude, and certain offenses by their very nature can have negative immigration consequences. At Lee Law Firm, LLC, one of the first things we determine during initial client interviews is whether or not our clients are anything other than a natural born or naturalized United States citizen.

If you would like to speak with an attorney from our firm concerning your South Carolina criminal charge, whether it is shoplifting (misdemeanor or felony level) or another state level criminal offense, please call us at (843) 474-0614 or (800) 996-0683. We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

Our practice areas are limited to Criminal Law (including, but not limited to, South Carolina felony charges, South Carolina misdemeanor offenses, and state level ICE Holds), and Family Law (including, but not limited to custody, contested divorce, uncontested divorce, alimony, equitable distribution, child support, visitation, separation agreements, and Guardian ad Litem appointments).  The firm handles other matters (non-Family and/or Criminal Law) only on a case-by-case basis.

Violent Crimes Versus Non-Violent Crimes in South Carolina – South Carolina Code Annotated Sections 16-1-60 and 16-1-70

South Carolina has a vast number of criminal offenses one can be charged with violating, some statutory (where you can actually “look them up in the code of laws”), and some at common law (essentially judge made law that has accumulated over time).  The news is full of stories of violent sounding crimes, both in South Carolina and in the rest of the United States; however, according to South Carolina law, only certain crimes are considered violent.  The South Carolina statute (written law created by our state legislature) on point was last amended, as of this writing, in June of 2010, and is located at S.C. Code Ann. Section 16-1-60.  The law is written as follows (as of this writing – February, 2012):

“For purposes of definition under South Carolina law, a violent crime includes the offenses of: murder (Section 16-3-10); attempted murder (Section 16-3-29); assault and battery by mob, first degree, resulting in death (Section 16-3-210(B)), criminal sexual conduct in the first and second degree (Sections 16-3-652 and 16-3-653); criminal sexual conduct with minors, first and second degree (Section 16-3-655); assault with intent to commit criminal sexual conduct, first and second degree (Section 16-3-656); assault and battery with intent to kill (Section 16-3-620); assault and battery of a high and aggravated nature (Section 16-3-600(B)); kidnapping (Section 16-3-910); trafficking in persons (Section 16-3-930); voluntary manslaughter (Section 16-3-50); armed robbery (Section 16-11-330(A)); attempted armed robbery (Section 16-11-330(B)); carjacking (Section 16-3-1075); drug trafficking as defined in Section 44-53-370(e) or trafficking cocaine base as defined in Section 44-53-375(C); manufacturing or trafficking methamphetamine as defined in Section 44-53-375; arson in the first degree (Section 16-11-110(A)); arson in the second degree (Section 16-11-110(B)); burglary in the first degree (Section 16-11-311); burglary in the second degree (Section 16-11-312(B)); engaging a child for a sexual performance (Section 16-3-810); homicide by child abuse (Section 16-3-85(A)(1)); aiding and abetting homicide by child abuse (Section 16-3-85(A)(2)); inflicting great bodily injury upon a child (Section 16-3-95(A)); allowing great bodily injury to be inflicted upon a child (Section 16-3-95(B)); criminal domestic violence of a high and aggravated nature (Section 16-25-65); abuse or neglect of a vulnerable adult resulting in death (Section 43-35-85(F)); abuse or neglect of a vulnerable adult resulting in great bodily injury (Section 43-35-85(E)); taking of a hostage by an inmate (Section 24-13-450); detonating a destructive device upon the capitol grounds resulting in death with malice (Section 10-11-325(B)(1)); spousal sexual battery (Section 16-3-615); producing, directing, or promoting sexual performance by a child (Section 16-3-820); lewd act upon a child under sixteen (Section 16-15-140); sexual exploitation of a minor first degree (Section 16-15-395); sexual exploitation of a minor second degree (Section 16-15-405); promoting prostitution of a minor (Section 16-15-415); participating in prostitution of a minor (Section 16-15-425); aggravated voyeurism (Section 16-17-470(C)); detonating a destructive device resulting in death with malice (Section 16-23-720(A)(1)); detonating a destructive device resulting in death without malice (Section 16-23-720(A)(2)); boating under the influence resulting in death (Section 50-21-113(A)(2)); vessel operator’s failure to render assistance resulting in death (Section 50-21-130(A)(3)); damaging an airport facility or removing equipment resulting in death (Section 55-1-30(3)); failure to stop when signaled by a law enforcement vehicle resulting in death (Section 56-5-750(C)(2)); interference with traffic-control devices, railroad signs, or signals resulting in death (Section 56-5-1030(B)(3)); hit and run resulting in death (Section 56-5-1210(A)(3)); felony driving under the influence or felony driving with an unlawful alcohol concentration resulting in death (Section 56-5-2945(A)(2)); putting destructive or injurious materials on a highway resulting in death (Section 57-7-20(D)); obstruction of a railroad resulting in death (Section 58-17-4090); accessory before the fact to commit any of the above offenses (Section 16-1-40); and attempt to commit any of the above offenses (Section 16-1-80). Only those offenses specifically enumerated in this section are considered violent offenses.”

At first glance, not all of the above offenses may seem “violent” or that they must contain violence to occur, while others clearly fit the stereotypical “profile.”  Nevertheless, it is important to remember that the above offenses will be considered violent offenses by a South Carolina Court for purposes of sentencing, which can also have an impact on one’s placement and other factors if/when incarcerated.  The last line of Section 16-1-60 is also instructive, and clarifying, as it makes it clear that, “Only those offenses specifically enumerated in this section are considered violent offenses.”

South Carolina Code Annotated Section 16-1-70 is essentially a restatement of the last sentence of Section 16-1-60.  It sets forth (as of this writing, February 2012):

“For purposes of definition under South Carolina law a nonviolent crime is all offenses not specifically enumerated in Section 16-1-60.”

I personally like that the legislature has included Section 16-1-70, despite its apparent redundancy.  In short, South Carolina Code Ann. Section 16-1-70 makes it extremely clear to judges, criminal defense attorneys, prosecutors, the Department of Corrections, and defendants, that if the offense one is charged with or may plead guilty to is not listed in Section 16-1-60, it it not considered a violent offense by statute (that one can look up without a fancy subscription based service normally reserved for attorneys).

If you would like to speak with an attorney from our firm concerning your South Carolina criminal charge, whether it is a violent or non-violent offense, please call us at (843) 474-0614 or (800) 996-0683.  We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

S.C. Code Ann. Section 22-3-546 in the Fourteenth Judicial Circuit – First Offense Criminal Domestic Violence

When I began practicing criminal law in the 14th Judicial Circuit, it seemed to be a “given” that any Criminal Domestic Violence First Offense matters that I took on would be prosecuted in Magistrate or Municipal Court, and usually by an arresting officer and/or a hardworking and dedicated Victim’s Advocate officer (as opposed to a law school trained and licensed government attorney).  First offense criminal domestic violence matters were and still are taken seriously by law enforcement and Solicitors (in South Carolina we have Circuit Solicitors and Assistant Solicitors, which are essentially different names for the District Attorney and Assistant District Attorney positions those from other states may be more familiar with); however, a first offense is a misdemeanor, as opposed to a felony offense.  One day I came across a bond form setting forth that an individual was supposed to appear for an Initial Appearance in General Sessions Court (as opposed to a trial date (by default “bench trial”) in Magistrate or Municipal Court) for a Criminal Domestic Violence First Offense misdemeanor offense.  About ten (10) minutes later I had become familiar with S.C. Code Ann. Section 22-3-546, titled “Establishment of program for prosecution of first offense misdemeanor criminal domestic violence offenses.”

S.C. Code Ann. Section 22-3-546 sets forth (as of this posting – December 2011), “A circuit solicitor, in a circuit with five or more counties, may establish a program under his discretion and control to prosecute first offense misdemeanor criminal domestic violence offenses, as defined in Section 16-25-20, in general sessions court.  Whether to establish a program, and which cases may be prosecuted in general sessions court, are within the sole discretion of the solicitor.  A solicitor shall report the results of the program to the Prosecution Coordination Commission.”

When I mention judicial circuits to non-lawyers, I often get blank stares.  South Carolina’s counties are divided into groups called circuits for purposes of many legal proceedings.  The Fourteenth Judicial Circuit is composed of five (5) counties: Beaufort County, Jasper County, Colleton County, Allendale County, and Hampton County.  To my knowledge, the Fourteenth Circuit is the only circuit in South Carolina with five (5) counties, so this law seems to have a mostly local effect.

How does this work in practice?  In my experience thus far with prosecutions conducted pursuant to this statute, an individual charged with a violation of S.C. Code Ann. Section 16-25-20 (the first offense CDV or criminal domestic violence subpart) is given an Initial Appearance date instead of a bench trial date.  A person charged with this offense will have his or her offense brought before a Grand Jury for indictment, just as if this individual were charged with rape, drug distribution, or other such offenses yielding far greater potential incarceration (jail or prison) times.

A person prosecuted pursuant to this program will be physically seated next to individuals potentially charged with extremely serious offenses. Also, should a trial occur, there is definitely going to be a solicitor on the other “side” (at the other “table”).  Though I truly have a lot of respect for the Victim Advocate Officers in our circuit that prosecute these matters, as they have gained a lot of experience in their roles and can be fierce opponents, an Assistant Solicitor is normally equipped with this experience plus a legal background and generally superior knowledge of the rules of evidence and case law.

Though funding for solicitors in the Fourteenth Judicial Circuit to handle the increased caseload due to implementation of Section 22-3-546 is always an issue, it is almost certainly going to be beneficial, if not necessary, for one charged with Criminal Domestic Violence – First Offense in Beaufort County, Jasper County, Colleton County, Hampton County, or Allendale County to have legal counsel.

If you would like to speak with an attorney from our firm concerning your South Carolina Criminal Domestic Violence – First Offense charge, please call us at (843) 474-0614 or (800) 996-0683.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).