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Finding Your Next GC: Succession Planning for Corporate Law Departments

The general counsel of a business is integral to executing the company's strategy, handling litigation, overseeing compliance and, ultimately, the bottom line. So why do corporate law departments tend to pay so little attention to succession planning for the role?

Many GCs simply feel they don’t have enough time to look ahead, given day-to-day work and immediate needs to advance their strategic priorities. Moreover, not everyone thinks that succession planning is in his or her best interest. And, all too often, a burgeoning plan is sabotaged by a lack of progress in identifying and training successors.

How can a law department break through inertia and make a solid GC succession plan?

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‘Tis the Season for Reason: Business Owner and Social Host Liability for Holiday Drinking

With the holiday season rapidly approaching – and with it, a succession of alcohol-fueled celebrations – business owners with liquor permits and those planning to host parties should consider what could happen if they are not appropriately vigilant when deciding whom to serve cups of cheer.

Liquor liability for businesses

South Carolina courts have become more severe in punishing those who serve alcohol to people who are intoxicated, so businesses with liquor permits should review their liquor liability policies – not only their insurance policies, but also their internal protocols.

Liquor permit holders already know they can’t sell alcohol to people under 21 years of age or who are intoxicated. But they also should be aware that state law defines “intoxicated” very broadly. Even if a customer doesn’t appear to be drunk when served, business owners can be held liable for the customer’s later actions, such as an accident or a fight, if they know the customer had something to drink before coming to the establishment and the business continued to serve them alcohol. Moreover, business owners can be held personally liable for the behavior of those who overindulge. This means that plaintiffs can go after a business owner’s personal as well as business assets. The costs can be overwhelming: In one case, a bar and its owners were held liable for $10 million dollars.

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Noncompete Agreements in South Carolina: A Primer for Businesses

U.S. businesses covered nearly one in five employees with some form of noncompete agreement intended to prevent them from taking a job with a rival, according to research.

Recent press, including a feature in The New York Times, has placed a sharper focus on the impact that such agreements can have on the nation’s workforce and overall economy. Several states have cracked down on the use of these contracts, and in late 2016, the Obama administration recommended reform.

South Carolina law favors free enterprise and competition and generally disapproves of noncompete agreements. But such agreements can be valid if they are properly limited to strike an appropriate balance between protecting an employer’s interest in protecting trade secrets and investment in training employees with a worker’s right to make a living. 

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South Carolina Supreme Court Sides with Innovation in Real Estate Lending Law

A strongly worded decision from the South Carolina Supreme Court has surprised many real estate lawyers and lenders by firmly validating a new competitor that has become a gamechanger in the marketplace.

The case Boone v. Quicken Loans centered on whether internet-based residential refinance closings by Quicken Loans and Title Source constituted the unauthorized practice of law.

South Carolina requires a lawyer to close residential real estate transactions, but laws vary in other states where lawyers may have limited involvement and professional title abstractors or a title insurance company are permitted to handle closings.

The five steps that South Carolina lawyers must supervise in a residential closing were established in the 1987 state Supreme Court case, State v. Buyer Services Company. Those steps where a lawyer must be involved meaningfully are document preparation, title search, closing, recording and disbursement.

But in its ruling, the state Supreme Court cited an earlier opinion that said its duty is to protect the public, not lawyers:

"[T]he policy of prohibiting laymen from practicing law is not for the purpose of creating a monopoly in the legal profession, nor for its protection, but to assure the public adequate protection in the pursuit of justice, by preventing the intrusion of incompetent and unlearned persons in the practice of law."

In the Quicken case, the high court found that lawyers were involved in the internet-based transactions and used their professional judgment in each step. The declaratory judgment reversed the special referee’s decision earlier that said no lawyer was involved in a way that protected the interests of the borrower.

The court noted the existence of significant federal regulations, such as the Dodd-Frank Wall Street Reform and Consumer Protection Act, Truth in Lending Act and Real Estate Settlement Procedures Act, which provide consumer protection. It said requiring more attorney involvement would not benefit the public or justify the increase in costs, which in turn could result in a reduction of consumer choice and access to affordable services.

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SCRIPTS System Must be Reviewed to Prescribe Schedule II Mediation

On May 19, 2017, Governor Henry McMaster signed into law the mandate that all licensed professionals with prescriptive authority, including physicians, physician assistants, dentists, optometrists, advanced practice nurses and podiatrists, implement and review a patient's history in the South Carolina Reporting and Identification Prescription Tracking System  ("SCRIPTS") before prescribing Schedule II pain medication.

The SCRIPTS system review requirement allows a designated staff member to review the SCRIPTS system on behalf of the licensed practitioner. If a designated staff member reviews patient information in the SCRIPTS system on behalf of the licensed professional, the licensed professional must discuss the patient's prescription history in the SCRIPTS system with the delegate before prescribing a Schedule II controlled substance. The communication must be reflected in writing in the patient’s chart.  When prescribing a Schedule II medication, licensed professionals should document the medication and the quality of pills prescribed in the patient's chart to ensure compliance with the relevant LLR practice act.

Failure to use the SCRIPTS system as required can result in consequences, including referral to the appropriate South Carolina Department of Labor, Licensing, and Regulation Board for  investigation and potential disciplinary action.  Our professional licensing attorneys routinely defend LLR investigations including South Carolina Board of Nursing complaints, Medical Board complaints, and Dental Board complaints.  

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What Clients Should Know When Preparing for a Deposition

A deposition is a question-and-answer session with the parties to the lawsuit and the other side’s attorney. Typically, a lawyer will ask the same or similar questions of a witness during the deposition as he or she will ask during the trial of the case. The purpose is to determine what type of witness the person would be if the matter were to proceed to trial. In doing this, lawyers are looking at the credibility of a witness if his or her story differs between the deposition and trial.

Deposition preparation and evaluation of the deponent is critically important in cases. In order to adequately obtain information that is being solicited from the witness, an attorney always must prepare for the deponent. In a deposition, lawyers meet with parties in a case, as well as experts and other witnesses, to ask questions before trial and take statements under oath. This formal questioning is part of the discovery phase, which lawyers use to gather facts to prepare their cases. While depositions are a routine part of litigation, understanding their purpose and how to prepare for them is crucial.

Additionally, lawyers use depositions to determine the strength of their case. Depositions are one of the few times that an attorney gets to evaluate witnesses and use that assessment to determine whether settlement of the case is an option, or if the matter should continue through other motions and trial proceedings. 

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Solar Tax Credits & Other Incentives Heat Up Energy-Efficient Demand in South Carolina Construction

With an abundance of sunshine in South Carolina (August’s total solar eclipse notwithstanding), developers and builders are jumping on ways to take advantage of the sun’s rays to provide energy-efficient construction.

Solar panels provide cheap energy, but a major obstacle to mainstream use is the upfront installation cost. The most common residential solar installation – a 5-kilowatt system – costs about $20,000 to install in South Carolina, but generates only about $500 to $1,000 in annual energy savings.

Federal and state tax credits are the most significant tool to offset initial costs, along with rebates and other incentives from private utilities in South Carolina. A lucrative rebate for Duke Energy customers was exhausted at the end of January after falling victim to its own popularity. The utility offered a $5,000 annual rebate for the average household by paying $1 per watt of energy generated from solar panels. Another program for South Carolina Electric & Gas customers offered performance payments of up to 4 cents for every kilowatt hour of electricity generated from solar panels. It expired at the end of 2016. 

Still, South Carolina users enjoy some of the best tax credits in the country and may be able to take advantage of new legislation pending in the House.  

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Eminent Domain in South Carolina: What Happens When the Government Wants Your Land?

South Carolina property owners and businesses have taken notice of recent actions across the state where the government is using eminent domain authority to clear the way for roads, infrastructure and other public uses.

Although a state constitutional amendment in 2006 prohibited the use of eminent domain for economic development, eminent domain is on the table for other uses and has been viewed as a bargaining tool for municipalities to accelerate the sale of coveted land.

Negotiations to acquire property for a library and museum in Myrtle Beach are continuing after the city council in February allowed the city manager to use eminent domain, if necessary, to force the sale of two downtown parcels.

In April, the Charleston City Council authorized the use of eminent domain to acquire the site of a former supermarket for a new intersection and park. One month later, the city reached an agreement with the developer to purchase the 2-1/2-acre site for $3 million.

And plans for Interstate 73, which aims to connect Myrtle Beach to North Carolina and up to Michigan, could involve more right-of-way acquisitions across South Carolina.

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