In re Davis

622 S.E.2d 529, 366 S.C. 344, 2005 S.C. LEXIS 337
CourtSupreme Court of South Carolina
DecidedNovember 14, 2005
DocketNo. 26065
StatusPublished
Cited by1 cases

This text of 622 S.E.2d 529 (In re Davis) 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 Davis, 622 S.E.2d 529, 366 S.C. 344, 2005 S.C. LEXIS 337 (S.C. 2005).

Opinion

PER CURIAM:

In this attorney disciplinary matter, respondent and the Office of Disciplinary Counsel (ODC) have entered into an [346]*346Agreement for Discipline by Consent (Agreement) pursuant to Rule 21, RLDE, Rule 413, SCACR. In the Agreement, respondent admits misconduct and consents to the imposition of a definite suspension not to exceed two years or any lesser sanction set forth in Rule 7(b), RLDE, Rule 413, SCACR. We accept the Agreement and impose a two year definite suspension from the practice of law. The facts, as set forth in the Agreement, are as follows:

FACTS

On January 28, 2002, respondent was suspended from the practice of law for twenty (20) months. In the Matter of Davis, 348 S.C. 199, 559 S.E.2d 573 (2002).1 At the time of her suspension, respondent assured ODC that she would close her practice in an orderly manner and that it was not necessary to appoint an attorney to protect her clients’ interests.

In connection with her' suspension and the closing of her practice, respondent executed an affidavit on February 12, 2002, in which she attested to her compliance with Rule 30, RLDE. In relevant part, respondent’s affidavit states:

4. In accordance with Rule 30 of Rule 413, SCAR [sic] I have notified by registered or certified mail, return receipt requested, all clients being represented by me in a pending matter.
5. The notice advises the client of the suspension and of the consequent inability to act as an attorney. The notice also advises the client to seek legal advice of the client’s own choice elsewhere, and, if the matter involves pending litigation or administrative proceedings, of the desirability of the prompt substitution of another lawyer to act as the client’s attorney in the proceeding.
6. I have also notified or caused to be notified, any co-counsel in any pending matter and any opposing counsel, or in the absence of opposing counsel, the adverse parties, of the suspension and the consequent inability of the lawyer to act as an attorney. The notice states my place of residence.
[347]*3477. In the event the client did not obtain substitute counsel within ten days of the notice, I moved in the court or agency in which the proceedings were pending for leave to withdraw.
8. I have promptly refunded any fees paid in advance that have not been earned. I have delivered to all clients being represented in pending matters any papers of [sic] other property to which they are entitled and notified them of and any counsel representing them of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers and other property.
9. I have kept and will maintain records showing compliance with the requirements of Rule 30 of Rule 413, SCAR [sic] and shall make these records available to disciplinary counsel upon request.

Underline added.

Matter I

On or about January 23, 2002, Client A met with and retained respondent for a domestic matter. At that meeting, Client A executed a fee agreement for $2,500 and paid respondent $200 towards that fee. Client A paid the balance of the fee, $2,300, a few days later.

After learning respondent’s telephone had been disconnected, Client A alleges she telephoned the Commission on Lawyer Conduct and discovered respondent had been suspended. Although Client A acknowledges she learned of respondent’s suspension before respondent executed the above-referenced affidavit of compliance with Rule 30, Client A alleges she did not subsequently receive written notice as respondent represented in the affidavit. Respondent does not dispute Client A’s allegation for purposes of the Agreement, but explains she believes Client was sent notice in compliance with Rule 30.

Respondent did not refund the unearned portion of Client A’s fee as represented in her affidavit. Client A petitioned the Lawyers’ Fund for Client Protection (Lawyers’ Fund) which determined Client A was entitled to $2,500.

[348]*348 Matter II

At the time of her suspension on January 2§“2002, respondent was shown on the records of the United States Bankruptcy Court as counsel of record in twelve pending bankruptcy matters, though respondent represents two of the matters had been concluded. As of February 27, 2002, fifteen days after executing the above-referenced affidavit, respondent remained counsel of record in nine bankruptcy matters according to the records of the Bankruptcy Court. Orders of substitution in two of those matters were not submitted to the Bankruptcy Court until May 2002.

Respondent explains that she may have continued to appear as counsel on the bankruptcy court’s records because some of the matters had been dismissed, but orders had. hot yet been issued, and because other matters were inactive and clients were making payments.

Matter III

In February 2001, Client B paid respondent $1,200 in fees for a divorce matter. Client B alleges that she made several long distance telephone calls and trips to Columbia from Orangeburg to attempt to contact respondent, but usually reached respondent’s answering machine or was told that respondent was not “in” but would be “in touch.” Respondent represents that she met with Client B whenever Client B had a scheduled appointment, but has no knowledge of Client B’s trips to Columbia or long distance telephone calls.

In addition, Client B’s complaint to ODC, dated March 25, 2002, alleged that respondent had not notified her that she had been suspended from the practice of law.

Respondent provided ODC with a copy of an unsigned letter dated May 2, 2002, from respondent to Client B, in which respondent notified Client B of the suspension, purported to return Client B’s file, and offered to substitute respondent’s brother or “a couple of my colleagues” as counsel or, alternatively, return $550 in unearned fees.

Respondent’s response to the Notice of Full Investigation dated November 21, 2002, acknowledges that Client B’s file was sent by overnight mail at a date later than May 2, 2002, [349]*349and further states that respondent “still plans to make every effort to refund $550 to [Client B] as soon as she is able to do so.” ' ■

As of the date of the Agreement, respondent had not refunded the $550 to Client B.

Matter IV

Client C retained respondent in a domestic matter and paid her $2,190. The court subsequently ordered Client C’s husband to pay $1,188 of Client C’s attorney’s fees. Respondent received and retained the $1,188 as additional fees for herself.

Respondent represents that the attorney’s fee award by the court was for additional work on behalf of Client C for which Client C had not paid. In her Response to Notice of Full Investigation, respondent stated:

The hearing proceedings went on for an extended period of time. The Court was not able to break for lunch, because what was intended to be a hearing took the length of a trial.

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In the Matter of Joel F. Geer
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Cite This Page — Counsel Stack

Bluebook (online)
622 S.E.2d 529, 366 S.C. 344, 2005 S.C. LEXIS 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-davis-sc-2005.