On Tuesday, August 2, 2022, the Supreme Court of South Carolina sentenced attorney David Mark Foster to confinement for a period of thirty days for engaging in the unauthorized practice of law while on interim suspension.
On September 7, 2021, Foster was placed on interim suspension by the Supreme Court pursuant to Rule 17(b) of the Rules for Lawyer Disciplinary Enforcement (RLDE). The Office of Disciplinary Counsel (ODC) submitted a petition on October 5, 2021, alleging that Foster violated the Supreme Court’s order of interim suspension by making misleading statements to former clients about the status of his practice and his inability to practice law.
The ODC filed a second verified petition on March 7, 2022, alleging that Foster had once more violated the Supreme Court’s September 7, 2021 order of interim suspension by willfully engaging in the unauthorized practice of law.
According to the petition, a month after Foster was suspended, he was asked by a former client whether it was true that he had been suspended temporarily and was no longer working for his former law firm. Foster sidestepped the first question and did not acknowledge his suspension, replying instead “I’m no longer with that firm. I still have my practice going. I took a month off for some personal time.” Another former client contacted Foster about an upcoming court appearance, Foster responded by saying that, “I’ll be in touch this week when I get back to the office.” No evidence suggests that Foster ever informed any of these former clients of his temporary suspension.
During the June 6, 2022 hearing, Foster admitted that despite being placed on interim suspension, he contacted various parties to assist a former client in addressing a legal problem. Despite admitting this conduct, Foster argued that he did not willfully violate the court’s order placing him on interim suspension because he was simply “communicating” on behalf of his former client, which he did not believe to constitute the practice of law. The court rejected this argument.
The order states:
“The moment this Court entered an order placing Respondent on interim suspension, he was no longer authorized to take any action on behalf of a client. A suspended attorney has an affirmative duty
to provide notice of his suspension to current clients, opposing counsel, and the courts, as well as to remove all indicia of the practice of law.”
The order continues:
“These deceptive statements, coupled with Respondent’s misleading comments set forth in the prior contempt petition, constitute a clear pattern of deception and demonstrate the willful and deliberate nature of Respondent’s attempts to mislead others about his interim suspension. We, therefore, find Respondent has willfully engaged in the unauthorized practice of law while on interim suspension.
The order concluded:
“Accordingly, we find Respondent guilty of criminal contempt of the Supreme Court of South Carolina beyond a reasonable doubt. We sentence Respondent to confinement for a period of thirty days. This sentence is suspended upon the condition that Respondent pay $554 in restitution to Client and a $446 fine to this Court within thirty days of the date of this Order. Respondent is warned that a
violation of the conditions of suspension may result in his incarceration for the entire thirty days of the sentence.
Mr. Foster attended the University of South Carolina School of Law, graduating in 2011. Foster practices in Greenville, South Carolina. He is licensed in South Carolina.
A copy of the original filing can be found here.
