In re Bosnak

799 S.E.2d 306, 419 S.C. 520, 2017 S.C. LEXIS 72
CourtSupreme Court of South Carolina
DecidedApril 19, 2017
DocketAppellate Case No. 2017-000606; Opinion No. 27713
StatusPublished

This text of 799 S.E.2d 306 (In re Bosnak) 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 Bosnak, 799 S.E.2d 306, 419 S.C. 520, 2017 S.C. LEXIS 72 (S.C. 2017).

Opinion

PER CURIAM:

In this attorney disciplinary matter, respondent and the Office of Disciplinary Counsel (ODC) have entered into an Agreement for Discipline by Consent (Agreement) pursuant to Rule 21 of the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court Rules (SCACR). In the Agreement, respondent admits misconduct and consents to the imposition of a public reprimand or definite suspension not to exceed one (1) year. Respondent requests that any period of suspension be imposed retroactively to February 2, 2016, the date of his interim suspension from the practice of law. In the Matter of Bosnak, 415 S.C. 332, 782 S.E.2d 123 (2016). Respondent further agrees to pay the costs incurred in the investigation and prosecution of this matter within thirty (30) days of the imposition of discipline and to complete the Legal Ethics and Practice Program Ethics School and Trust Account School within one (1) year of the imposition of discipline. We accept the Agreement and suspend respondent from the practice of law in this state for one (1) year, retroactive to the date of his interim suspension. In addition, we order respondent to pay the costs incurred in the investigation and prosecution of this matter and to complete the Legal Ethics and Practice Program Ethics School and Trust Account School as specified in [522]*522the conclusion of this opinion. The facts, as set forth in the Agreement, are as follows.

Facts

Matter I

Respondent represented a client in a probate matter following the death of the client’s son. The client was appointed as Personal Representative of the estate.

On November 26, 2008, respondent brought a wrongful death suit on behalf of the estate against a police department and other named parties in federal court. On April 23, 2010, the defendants in the lawsuit moved to dismiss the case for failure to prosecute. In July of 2010, the federal court dismissed the lawsuit for failure to prosecute stating that respondent did not respond to the motion to dismiss on behalf of the estate.

Respondent filed a motion to reconsider. In the order denying the motion, the federal court stated: “The case has been marked by numerous delays on the part of plaintiffs counsel, who failed to file documents in a timely fashion, failed to respond to any discovery requests except for providing the defendants with one document, failed to respond to the defendants’ motion to compel discovery responses, failed to respond to the Court’s order regarding that discovery, and failed to respond to the defendants’ motion to dismiss.”

The client hired an attorney (Complainant) to gather information about the dismissal of the case. The Complainant contacted the probate court and scheduled a status conference in the case for February 4, 2011. Respondent was served with notice of the status conference but failed to attend.

On February 8, 2011, the client, as Personal Representative, issued a subpoena to respondent for documents on February 16, 2011, and for his testimony on February 23, 2011. Respondent failed to comply with the subpoenaed requests for documents. On the morning of the scheduled deposition, respondent left a message at Complainant’s office stating that he would not be attending the deposition because he was in trial in General Sessions Court.

[523]*523Respondent was sent another subpoena for March 18, 2011. One minute prior to the deposition, respondent faxed a motion to quash the deposition as the client had not waived attorney-client privilege.1

In response to the motion to quash, the Personal Representative filed a motion to compel, sanction and hold respondent in contempt. The hearing was scheduled for June 1, 2011. Respondent failed to appear for the hearing.

On June 7, 2011, the court issued an order compelling respondent to attend his deposition. Respondent was given his choice of dates for the deposition. He was also ordered to contact Complainant and advise Complainant of his choice for deposition dates. Respondent failed to comply with the June 7, 2011 order.

On June 30, 2011, respondent faxed the probate court and advised the court that he could not comply with the court’s June 7, 2011, order because he was scheduled for another trial in General Sessions Court. The court responded, giving respondent one last opportunity to comply with its order. The court directed respondent to contact Complainant immediately; respondent did not contact Complainant.

The probate court issued an order holding respondent in civil contempt. Respondent was given the opportunity to purge himself of contempt by paying the Personal Representative $5,651.48 in costs, providing the documents requested by the estate, and by appearing for his deposition.

Respondent hired counsel to represent him before the probate court. Eventually, respondent appeared for the deposition and the probate matter was settled.

On August 30, 2011, respondent was mailed a Notice of Investigation requesting a response to the complaint within fifteen (15) days. When no response was received, respondent was served with a letter pursuant to In the Matter of Treacy, 277 S.C. 514, 290 S.E.2d 240 (1982), on October 4, 2011, again requesting respondent’s response. Respondent failed to respond to the Notice of Investigation. Respondent did appear and give testimony before ODC on December 1, 2011.

[524]*524Matter II

ODC received an April 8, 2015, notice from Wells Fargo Bank indicating an overdrawn check on respondent’s trust account. The check represented payment to a client and resulted in respondent’s trust account being overdrawn by $43.09. Respondent deposited $80 in personal funds to cover the overdrawn check. Respondent represents the non-sufficient funds notice resulted from bank error drafting fees for a check re-order from his IOLTA trust account.

On April 15, 2015, respondent was mailed a Notice of Investigation requesting a response to the complaint within fifteen (15) days. When no response was received, respondent was served with a letter pursuant to In the Matter of Treacy, id., on May 14, 2015, again requesting his response. Respondent failed to respond to the Notice of Investigation in spite of the Treacy letter.

On August 26, 2015, respondent was served with a Notice to Appear before ODC to answer questions on the record. Respondent was also served with a subpoena that required him to bring trust account records maintained pursuant to Rule 417, SCACR, to the August 26, 2015 appearance. Respondent appeared before ODC and gave testimony on the record, but he failed to produce the trust account records. Respondent was provided an additional ten (10) days to submit the trust account records, but he failed to do so.

Matter III

ODC received a December 15, 2015, notice from Wells Fargo Bank indicating an overdrawn item on respondent’s trust account. The bank had processed a transaction for check reorders in the amount of $189.15 when respondent’s trust account had a balance of only $100.00. The transaction resulted in respondent’s account being overdrawn in the amount of $89.15. According to the bank, the charge was a drafted payment that was not initiated by respondent and was promptly refunded the following day.

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Related

In the Matter of Treacy
290 S.E.2d 240 (Supreme Court of South Carolina, 1982)
In re Bosnak
782 S.E.2d 123 (Supreme Court of South Carolina, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
799 S.E.2d 306, 419 S.C. 520, 2017 S.C. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bosnak-sc-2017.