In re Cruz

572 S.E.2d 448, 352 S.C. 48, 2002 S.C. LEXIS 226
CourtSupreme Court of South Carolina
DecidedNovember 12, 2002
DocketNo. 25557
StatusPublished

This text of 572 S.E.2d 448 (In re Cruz) 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 Cruz, 572 S.E.2d 448, 352 S.C. 48, 2002 S.C. LEXIS 226 (S.C. 2002).

Opinion

PER CURIAM:

In this attorney disciplinary matter, respondent and Disciplinary Counsel have entered into an Agreement for Discipline by Consent pursuant to Rule 21, RLDE, Rule 413, SCACR. In the agreement, respondent conditionally admits misconduct and consents to a definite suspension from the practice of law for a period of eighteen months up to twenty-four months. We accept the agreement and suspend respondent for twenty-four months.1 The facts as admitted in the agreement are as follows.

Facts

I. Matter A

On June 19, 1998, respondent was a partner in a law firm with another lawyer (Lawyer). During this time, the firm was retained to represent Client for injuries sustained in an automobile accident. Respondent requested that Lawyer assist him with the case. Lawyer negotiated a settlement for the insurance company to pay the policy limits of $100,000.

On July 21, 1999, respondent and Lawyer dissolved their partnership. Respondent then prepared, and had Client sign, a letter terminating Lawyer’s representation of Client. Shortly thereafter, respondent contacted the insurance company adjuster stating that he and Client would settle her claims for the policy limits of $100,000 and sign mutual releases in exchange for a check written to respondent and Client. The adjuster subsequently sent a proposed settlement agreement and a release of all claims to respondent. Respondent replied by writing on the adjuster’s letter, “I agree and consent to the above-listed terms,” and signed the notation as “attorney for [Client].”

Despite the fact that she could not read, Client signed the release on the advice of respondent. Respondent did not read [50]*50the release to Client or explain the legal significance of its terms. After executing the release, respondent contacted another insurance company regarding underinsured motorist coverage. However, the company refused to settle because the company and its insured had been released from all claims by the release signed by Client on respondent’s advice. The release precluded Client from collecting underinsured coverage of up to $30,000.

Following the settlement of the claim, Lawyer filed suit against respondent, another attorney, and Client alleging that respondent failed to pay him his portion of the attorney’s fee generated by the settlement of Client’s claim. Respondent answered Lawyer’s complaint on behalf of himself and Client. Since Client had a potential claim against respondent for his failure to secure underinsured motorist coverage, respondent’s answering the suit on Client’s behalf was a conflict of interest. Respondent failed to inform Client of the conflict and the potential claim against him. Respondent also failed to advise Client to seék the advice of independent counsel.

On May 19, 2000, and May 20, 2000, attorneys representing Lawyer wrote respondent raising concerns about the conflict of interest respondent had in representing both Client and himself in the lawsuit. Despite the receipt of these two letters, respondent failed to advise Client of the conflict of interest and failed to withdraw as her attorney.

On July 17, 2000, respondent was removed as counsel for Client by order of the circuit court and Client was advised to retain independent counsel. Respondent and his associate refused to cooperate with Client’s new counsel despite his repeated attempts to obtain Client’s file.

Despite the fact that he had been removed from representation of Client by order of the circuit court, on July 27, 2000, respondent prepared and advised Client to sign a document entitled “Revocation of all Power of Attorneys.” Client had previously executed a power of attorney in favor of her son. Respondent informed Client that he would file the document, but failed to do so.

Also on July 27, 2000, respondent prepared an affidavit for Client to sign, that respondent intended to submit in support of his motion for summary judgment in the lawsuit brought by [51]*51Lawyer. The affidavit stated in part, “I am satisfied with the services of [respondent]. He negotiated my hospital lien of $80,000 to $40,000. Therefore, my portion of the settlement is $85,000 after paying the lien. I received more from the $100,000 than I would have received from an additional $30,000 underinsured motorist, since if I had recovered there, the hospital lien would not have been negotiated and I would have to pay the hospital $80,000.” The affidavit further stated, “I have ratified the General Release.”

The affidavit was an attempt by respondent to relieve himself of liability, both professional and financial, to Client. Further, respondent failed to explain the legal significance of the affidavit to Client and failed to advise her to seek independent counsel prior to signing it.

II. Matter B

Respondent was retained to represent Client in a wrongful termination case. Client paid respondent an initial retainer fee of $300, plus $148 for the cost of a deposition. Respondent filed the action in federal court. However, respondent did not notify Client that he would be leaving his practice in South Carolina and relocating to North Carolina, and then California. Respondent failed to return telephone calls to Client and failed to communicate with her. Respondent closed his practice and subsequently moved without informing Client.

Respondent failed to return Client’s file to her; however, Client eventually obtained her file from respondent’s assistant, who, while licensed to practice law in California, was not licensed in South Carolina. Respondent had left his Client files with his assistant.

Respondent also failed to move before the United States District Court for leave to withdraw, or take any other action to protect Client’s interests before leaving South Carolina.

After receiving Client’s complaint, the Commission on Lawyer Conduct wrote respondent on September 20, 2000, requesting a reply within 15 days. On October 12, 2000, respondent replied that he wanted to file an amended reply after reviewing Client’s file. On December 14, 2000, a Commission staff attorney wrote respondent requesting additional informa[52]*52tion; however, respondent did not submit the amended reply nor did he respond to the staff attorney’s letter.

III. Matter C

Client and her husband retained respondent to file a bankruptcy action in the United States Bankruptcy Court for the District of South Carolina. On April 21, 2000, respondent filed a Chapter 7 action and a trustee was appointed. Respondent abandoned his law practice in South Carolina and moved out of state without notifying Client and without taking steps to protect Client’s interests in the bankruptcy proceeding. Respondent also failed to take the necessary steps to protect Client’s furniture. Respondent failed to reply to Client’s inquiries about the case and did not return Client’s file. On August 23, 2000, the Bankruptcy Court issued an order discharging the debtors and the trustee and closing the case. Respondent also left Client’s file with his associate who was not licensed to practice law in South Carolina.

After receiving Client’s complaint, the Commission wrote to respondent on November 27, 2000, seeking a reply. Respondent did not respond.

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Related

In re Cruz
543 S.E.2d 536 (Supreme Court of South Carolina, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
572 S.E.2d 448, 352 S.C. 48, 2002 S.C. LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cruz-sc-2002.