In re Durban

818 S.E.2d 1, 424 S.C. 230
CourtSupreme Court of South Carolina
DecidedAugust 8, 2018
DocketAppellate Case No. 2018-000591; Opinion No. 27828
StatusPublished
Cited by4 cases

This text of 818 S.E.2d 1 (In re Durban) 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 Durban, 818 S.E.2d 1, 424 S.C. 230 (S.C. 2018).

Opinion

PER CURIAM:

**230In this attorney disciplinary matter, Respondent and the Office of Disciplinary Counsel (ODC) have entered into an **231Agreement 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 definite suspension of nine months to three years or disbarment. Respondent requests that his sanction be made retroactive to June 24, 2016, the date of his interim suspension. ODC does not oppose this request. We accept the Agreement and suspend Respondent from the practice of law in this state for three years, retroactive to June 24, 2016. The facts, as set forth in the Agreement, are as follows.

Facts

Matter A

Husband A and Wife A (together, Clients A) retained Respondent in October 2015 for representation in a matter with the Department of Social Services. Clients A paid a retainer of $5,000. At that time, Respondent's office was located in space he rented from a law firm (Landlord Firm), whose address he shared.

On February 5, 2016, after attempting to contact Respondent by email and telephone without success, Clients A asked a paralegal at the Landlord Firm if she knew how to locate Respondent because Respondent was no longer renting space from the Landlord Firm. The paralegal provided a cell phone number and an email address for Respondent. On February 14, 2016, Husband A emailed Respondent that he and Wife A were filing a motion for substitution of counsel, requesting a statement of their account with Respondent and a check for the balance of their retainer. Respondent did not provide an accounting and did not return the unused portion of Clients A's retainer. Respondent did not contact Clients A. Clients A filed a complaint with ODC on March 24, 2016. Respondent admits he failed to adequately communicate with Clients A when he moved his law practice.

ODC sent a Notice of Investigation (NOI) to Respondent dated March 29, 2016. During this time, Respondent's primary mailing address in the Attorney Information System (AIS) was 3660 West Montague Avenue in North Charleston (Primary **232Mailing Address). Respondent's Primary Mailing Address in AIS has been 3660 West Montague Avenue in North Charleston during all times relevant to the disciplinary matters discussed in this opinion. Respondent's alternate mailing address in AIS has been 1474 Hamlin Park Circle in Mount Pleasant at all times relevant to these disciplinary matters, which is designated in AIS as the address of Respondent's residence (Residential Address).

When no response to the NOI was received by ODC and the NOI was not returned by the United States Postal Service, ODC sent a reminder letter dated April 21, 2016, to Respondent. This reminder letter was sent by certified mail to both Respondent's Primary Mailing Address and Residential Address. Respondent signed the certified mail receipt for the letter sent to his Residential Address.

On May 2, 2016, Respondent faxed a letter to ODC dated April 29, 2016 (Faxed Letter), indicating he had not received the NOI until he received the reminder letter dated April 21, 2016. He also stated he was prepared to respond to the complaints and that he intended to cooperate with ODC. Respondent believed he had changed his address on AIS, *2but "apparently, [the change] did not go through." He told ODC in the Faxed Letter that his Residential Address was the address where he could be reached. The Faxed Letter included a telephone number and an email address.

On May 4, 2016, ODC sent copies of four pending NOIs and their respective complaints to which Respondent had not replied, including the complaint filed by Clients A. On May 27, 2016, Respondent responded to two of the NOIs and complaints, including the NOI and complaint associated with Matter A.

Regarding Matter A, Respondent stated Husband A had been accused of physically abusing his children during visitation periods. He stated he represented Husband A in the DSS matter, while two other attorneys represented Husband A in the custody action. According to Respondent, he filed an answer and counterclaim in family court, appeared at two family court hearings, and participated in a lengthy telephone conference call with the judge to secure Husband A's visitation rights over the holidays. He stated he spent over 25 hours on **233the case and the fee deficit was over $2,500. Respondent stated his attorney-client relationship with Clients A began to deteriorate after the hearing, and he subsequently signed a substitution of counsel. Respondent admits he failed to adequately communicate with Clients A when he moved his law practice.

On June 1, 2016, ODC served Respondent with a Notice to Appear pursuant to Rule 19, RLDE (NTA), to answer questions under oath regarding Matter A and four other pending disciplinary matters. ODC also issued a subpoena for documents in the five matters. Respondent failed to appear as instructed and failed to respond to the subpoena. ODC left Respondent a voicemail message on June 22, 2016, and also sent email messages to Respondent at both email addresses listed in AIS. Respondent admits he did not respond to any of ODC's attempts to reach him.

On May 9, 2016, Clients A filed an Application for Resolution of Disputed Fee with the Resolution of Fee Disputes Board, alleging they paid $5,000 to Respondent and he did very little work. They also complained Respondent never provided them with the accounting they requested. By letter dated September 20, 2016, the Resolution of Fee Disputes Board found Clients A were entitled to a refund of $4,400. Respondent admits he has not paid the refund.

Matter B

Respondent represented Client B in his divorce case. The final hearing was held on January 20, 2016. After the hearing, Client B, who was anxiously awaiting the final order, attempted to contact Respondent several times through telephone calls and emails, with no success. Client B contacted Landlord Firm, and Landlord Firm told Client B that Respondent was no longer at that address and it did not have a current address for him. Client B contacted the Berkeley County Family Court several times and ultimately learned Respondent had not submitted a final order.

Client B filed a complaint with ODC on March 3, 2016. As of February 26, 2016, he had paid $5,450 to Respondent for representation. He included a copy of a billing statement from Respondent indicating Client B was due a refund of $1,400.

**234Client B never received his refund. He also complained Respondent failed to communicate with him.

ODC sent a NOI on March 4, 2016, to Respondent's Primary Mailing Address. When Respondent did not reply and the notice was not returned by the Post Office, ODC sent a reminder letter dated March 31, 2016, to Respondent via certified mail at his Primary Mailing Address. The reminder letter was returned to ODC on May 20, 2016, with a notice that there was no mail receptacle for Respondent at that address.

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Bluebook (online)
818 S.E.2d 1, 424 S.C. 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-durban-sc-2018.