In re Berger

759 S.E.2d 716, 408 S.C. 313, 2014 WL 1386688, 2014 S.C. LEXIS 100
CourtSupreme Court of South Carolina
DecidedApril 9, 2014
DocketAppellate Case No. 2013-002535; No. 27377
StatusPublished
Cited by4 cases

This text of 759 S.E.2d 716 (In re Berger) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Berger, 759 S.E.2d 716, 408 S.C. 313, 2014 WL 1386688, 2014 S.C. LEXIS 100 (S.C. 2014).

Opinion

DISCIPLINE IMPOSED

PER CURIAM.

Respondent is licensed to practice law in Florida;1 he is not licensed to practice law in South Carolina. In May 2013, the Office of Disciplinary Counsel (ODC) filed Formal Charges against respondent alleging that, by use of the Internet, he solicited clients in South Carolina and represented clients in two separate legal matters before the courts of this state. Respondent did not answer the Formal Charges, was found to be in default, and is therefore deemed to have admitted the factual allegations made in those charges. See Rule 24(a), [315]*315RLDE, Rule 413, SCACR. Following an evidentiary hearing in which respondent did not appear, the Hearing Panel issued a Panel Report recommending, respondent: 1) be prohibited from seeking any form of admission in South Carolina for five years; 2) that he reimburse all fees and costs paid by the South Carolina clients harmed by his misconduct within thirty (30) days of the date of discipline; and 3) that he be required to pay the costs of the proceedings within thirty (30) days of the date of discipline, in addition to other sanctions. Neither ODC nor respondent filed exceptions to the Panel Report and the matter is now before the Court for consideration.

FACTS

Matter I

In 2011, Mr. and Mrs. Doe, residents of South Carolina, were having difficulty paying the mortgage on their home and were facing foreclosure; the lender removed the foreclosure action from the active roster to attempt loss mitigation or loan modification. In the spring of 2012, Mrs. Doe conducted an Internet search to locate a lawyer and completed a form on a mortgage modification website. Several companies responded, including respondent’s law firm, the Law Offices of C. William Berger, Esquire, which sent the Does a letter offering assistance.

Mrs. Doe contacted respondent’s law firm for assistance in avoiding foreclosure. She inquired about the effect of respondent being in Florida and, in reply, was told “Yes ... you will have a local attorney....” Thereafter, the Does signed a fee agreement, paid a retainer of $1,500.00, and agreed to have the law firm withdraw a monthly fee from their bank account. The Does received emails addressing how long the matter would take and stating “[w]e have never lost a home ... that is because we only take on clients that we can help ... and have a valid case.” The Does received a “Welcome Email” stating the firm had contacted the Does’ lender and requested the Does complete a form and send requested documents. The Does completed the form and sent the requested documents. Over a three month period, the Does received the same “Welcome Email” on three occasions.

[316]*316In August 2012, the Does received an email from their lender advising it was unable to proceed with the loss mitigation process because it had not received certain documents and it had filed a Motion to Restore the foreclosure proceeding to the roster. Mrs. Doe contacted respondent’s law firm and forwarded the lender’s letter and motion by email. She was again sent the “Welcome Email.” After repeated attempts to contact the law firm, Mrs. Doe was notified on August 24, 2012, that the law firm had filed a response to the lender’s motion. As of this time, neither of the Does had spoken with respondent or any other lawyer with his firm.

In the meantime, respondent’s law firm repeatedly told Mrs. Doe that a “negotiator” would be assigned to assist with the loan modification process. When the negotiator contacted Mrs. Doe on August 24, 2012, the negotiator did not mention the lender’s Motion to Restore and advised what to do “if you are currently behind or do fall behind on your mortgage payments.”

On August 28, 2012, Mrs. Doe spoke with the lender who requested she submit several of the same documents she had given to respondent’s law firm. Mrs. Doe communicated this request to the negotiator who then requested the same documents that Mrs. Doe had already submitted to the law firm.

On September 20, 2012, Mrs. Doe received notice that a hearing in the foreclosure case was scheduled for October 3, 2012. Mrs. Doe notified the negotiator who responded, “[t]his is a hearing due to not paying on your mortgage, I am going to forward this over to the correct department and have the attorney give you a call.” From September 20 until the morning of the hearing, Mrs. Doe sent at least seventeen email messages to representatives of respondent’s law firm asking to speak with her lawyer, asking for the lawyer’s name, and inquiring about the hearing. She received a few responses, none of which answered her questions. At one point, she received an email stating, “[w]e are waiting to hear back from your attorney, [Lawyer A].”2 According to the Formal Charges, Lawyer A had not been retained by respondent’s firm to represent the Does.

[317]*317On several occasions, an employee of the law firm told Mrs. Doe that the employee had been consulting with a lawyer in the law firm named “Lynn.” Mrs. Doe was not put in touch with “Lynn” or given Lynn’s last name or contact information.

On the day of the October 3, 2012, hearing, Mrs. Doe received an email from the employee stating “Lynn” had “Fed-Ex’d” a motion to the judge yesterday. The email further stated “there is a conflict with the Attorney’s schedule for the hearing. HOWEVER, speaking with Lynn ... it is advised that you go to the hearing and State [sic] that you have an attorney, and your case is being handled, and there was a conflict with her schedule.”

Court records indicate “Defendant’s Motion to Dismiss for Failure to State Cause of Action and Improper Restablishment of the Lost Note” was sent by Federal Express listing the Does’ name at respondent’s return address. The motion was not signed by the Does and did not list a lawyer on behalf of the Does. The motion was improper as this was not a “lost note” case. Further, respondent’s law firm did not serve a copy of the motion on counsel for the lender. In addition, the Does were not provided with a copy of the motion and were neither consulted nor advised regarding its contents. At the time of the hearing, neither of the Does had spoken with respondent or any attorney at his law firm.

Moments before the hearing, a representative of the law firm sent Mrs. Doe an email with the name and telephone number for another attorney, Lawyer B, licensed to practice law in South Carolina. Lawyer B did not appear at the hearing. Respondent’s firm had not retained Lawyer B to handle the Does’ case.

At the hearing, Mrs. Doe informed the judge that respondent was representing she and her husband and had a scheduling conflict. Counsel for the lender stated no one in her law firm had been contacted by an attorney on behalf of the Does. The judge took evidence from the lender; the judge held the matter in abeyance for three weeks to allow Mrs. Doe the opportunity to submit documentation of active loan modification negotiations.

Between October 3 and October 18, 2012, Mrs. Doe sent at least sixteen email messages to employees of respondent’s law [318]*318firm asking to speak to an attorney and requesting the documentation requested by the judge. She was not able to speak with a lawyer and did not receive any documentation verifying she was in active negotiations to modify the loan. Mrs. Doe was repeatedly told that “Lynn” was handling the matter.

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Cite This Page — Counsel Stack

Bluebook (online)
759 S.E.2d 716, 408 S.C. 313, 2014 WL 1386688, 2014 S.C. LEXIS 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-berger-sc-2014.