Definite One-Year Suspension for Repeated Criminal and Professional Misconduct: In the Matter of Foster

Introduction

In In the Matter of David Mark Foster, Appellate Case No. 2024-001660, the Supreme Court of South Carolina addressed the appropriate sanction for an attorney whose multiple instances of criminal wrongdoing and serious lapses in client service demonstrated unfitness to practice law. David Mark Foster, admitted in 2011 and without prior discipline, entered into an Agreement for Discipline by Consent admitting misconduct and consenting to either a public reprimand or a definite suspension not to exceed one year. The Court accepted the agreement and imposed a one-year suspension.

Key issues:

Criminal misconduct: multiple DUI arrests, domestic-violence and child-endangerment charges, violation of bond conditions, driving under suspension.
Client-related misconduct: failure to appear for clients, mishandling of trust funds, unauthorized practice during interim suspension.
Appropriate sanction: consent discipline, severity of sanction, refusal to make suspension retroactive.

Summary of the Judgment

The Court accepted Foster’s admission of professional misconduct in four separate matters, involving both criminal and client-related violations. It held that:

Foster’s criminal acts reflected adversely on his fitness and brought disrepute to the profession.
His failures to act diligently, deposit client fees properly, and to refrain from practicing while suspended violated multiple Rules of Professional Conduct: 1.1, 1.3, 3.2, 5.5(a), 8.4(b), (d), (e).
Under Rule 21 of the Rules for Lawyer Disciplinary Enforcement, the admitted misconduct warranted a definite suspension.
The Court suspended Foster for one year, declined to make it retroactive, and imposed conditions: payment of costs, completion of ethics school, and an alcohol/drug assessment with monitoring by Lawyers Helping Lawyers.

Analysis

Precedents Cited

In re Foster, 434 S.C. 222, 863 S.E.2d 464 (2021) – interim suspension for misconduct unrelated to client matters.
In re Foster, 437 S.C. 89, 876 S.E.2d 701 (2022) – criminal contempt for practicing law while suspended.
Ishmell v. S.C. Highway Dep’t, 264 S.C. 340, 215 S.E.2d 201 (1975) – procedure for reopening traffic cases (triggered by Foster’s post-suspension representations).

These decisions established (1) the Court’s authority to impose interim suspensions, (2) the sanction for unauthorized practice while suspended, and (3) the procedural context for one of the client matters.

Legal Reasoning

The Court’s decision hinged on three pillars:

Admission and Consent: Foster agreed to discipline by consent under Rule 21, admitting all violations and waiving factual disputes.
Severity and Pattern of Misconduct: Multiple DUIs, a domestic-violence violation of bond conditions, child-endangerment arrest, and continued driving under suspension underscored a pattern of flagrant criminality. Client-related misconduct spanned failure to appear, trust-account mismanagement, non-disclosure of suspension, and deceit about case status.
Professional Responsibility Rules: Foster’s conduct breached the core duties of competence (Rule 1.1), diligence (Rule 1.3), candor (Rule 8.4(d)), and prohibition on unauthorized practice (Rule 5.5(a)), among others. Under Rule 413, SCACR, such violations are grounds for discipline.

Balancing mitigating factors—no prior discipline and consent to sanction—against the gravity of misconduct, the Court concluded that a definite one-year suspension was necessary to protect the public and maintain confidence in the profession. It declined retroactivity, emphasizing that serious misconduct deserves contemporaneous sanction.

Impact

This decision reinforces several important precedents:

Attorneys who commit repeated criminal infractions and dishonesty face significant suspension, even by consent.
Consent discipline, while expediting resolution, does not guarantee leniency when misconduct is severe.
Retroactive suspension will be refused where the conduct under review is sufficiently egregious.
Mandatory conditions—ethics education, substance-abuse assessment, and compliance monitoring—underscore the Court’s commitment to rehabilitation alongside punishment.

Future disciplinary matters will reference Foster’s case when weighing consent sanctions, non-retroactivity, and the interplay between criminal convictions and professional fitness.

Complex Concepts Simplified

Discipline by Consent (Rule 21): A streamlined process where an attorney admits misconduct and agrees to a proposed sanction without full evidentiary hearing.
Interim Suspension: Temporary prohibition on practice imposed when an attorney’s conduct poses immediate risk to clients or the public, later made final or modified.
Trust Account Rules: Lawyers must deposit client funds into a separate trust account and may withdraw only when earned. Misplacing or commingling funds violates professional duties of honesty and safekeeping.
Unauthorized Practice: Any legal advice or representation by someone not authorized to practice—including a suspended lawyer—is prohibited and prejudicial to justice.
Ishmell Order: A procedural mechanism in South Carolina traffic courts allowing re-opening of cases under certain circumstances.

Conclusion

In the Matter of David Mark Foster establishes that an attorney’s voluntary admission of serious repeated misconduct—both criminal and professional—will lead to substantial suspension without retroactive credit. The decision underscores the South Carolina Supreme Court’s resolve to uphold the integrity of the legal profession, protect the public, and ensure that rehabilitative measures accompany punitive sanctions. It serves as a cautionary precedent for attorneys that sustained criminal wrongdoing and derelictions of duty have grave consequences, even in the context of consent discipline.