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Help with South Carolina Rule of Procedure 5 (b)(c) and proposed orders filed by Plaintiff Discover Bank's attorney


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If a judge asks a prevailing attorney to submit a written order of judgement, is this considered to be a proposed order upon submission for an entry of judgement and the judge's approval? 

 

Recently, Discover Bank filed a motion to compel discovery.  The judge granted some requests and denied others that were included in his motion.

 

Discover Bank (showed under the court rosters actions in this case) filed three different orders for this motion. 

 

 

I received the first order after it was entered as a judgment.  I never received the second order at all from the court.  The third order is an amended order that includes additional discovery requests than the ones specified in the first order).  Both the first and amended were sent from the Clerk of Court after being signed into judgment and entered into record.  Is this a violation of SCRCP 5 (letter 'b') (3)?  I was never sent these proposed orders beforehand by opposing counsel. 

 

 

 

Rule 5(letter 'b') (3)  of South Carolina Rules of Civil Procedure requires counsel to serve proposed orders on all counsel of record. Prior to adoption of this rule in 1994, the court has stated that the better practice was to serve copies of proposed orders on all counsel of record.

 

See First Fin. Ins. v. Sea Island Sport Fishing Soc., Inc., 327 S.C. 12, 490 S.E.2d 257 (1997).

 

See also the comment to Canon 3 of the Code of Judicial Conduct, which requires the court to give each party an opportunity to respond to proposed findings submitted by another party; In re White, 328 S.C. 88, 492 S.E.2d 82 (1997)

 

 

I definitely would have objected to the verbiage of the orders (conclusory statements were included which were never ruled upon) and to the amendment to the original order that the judge signed.  If this is a violation, can someone advise recourse?

 

  I cannot find any information regarding sanctions. 

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Note to 1994 Amendment:

Rule 5((
b)(3) clarifies the intent of Rule 5(a) and requires that proposed orders, findings of fact and conclusions of law and other materials provided to the court are to be served on all counsel of record. The material is to be provided to all other counsel at the same time and by the same means as they are provided to the court. Thus opposing counsel will have the opportunity to review and comment on the proposed order before it is signed. The rule does not require the court to delay entering any proposed order.

 

There's really no helpful case law.  The only thing I could find is a disciplinary action before the SC Supreme Court for violations committed by an attorney.

 

In re Cheatham, 702 SE 2d 558 - SC: Supreme Court 2010

 

Respondent admits his submission of the proposed order to the family court without serving it at the same time and by the same manner on opposing counsel violated Rule 5(b)(3), SCRCP.

http://scholar.google.com/scholar_case?case=11407875482963292308&q=%22Rule+5%28b%29%283%29%22+&hl=en&scisbd=2&as_sdt=4,41

 

I'd advise you to contact a consumer attorney to get some answers.

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