In re Graab

515 S.E.2d 93, 334 S.C. 633, 1999 S.C. LEXIS 70
CourtSupreme Court of South Carolina
DecidedMarch 22, 1999
DocketNo. 24926
StatusPublished
Cited by1 cases

This text of 515 S.E.2d 93 (In re Graab) 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 Graab, 515 S.E.2d 93, 334 S.C. 633, 1999 S.C. LEXIS 70 (S.C. 1999).

Opinion

PER CURIAM:

In this attorney disciplinary matter, respondent and Disciplinary Counsel have entered into an agreement under Rule 21 of the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413, SCACR. In the agreement, respondent admits misconduct and consents to either a definite suspension for a period between eighteen (18) and twenty-four (24) months or an indefinite suspension. We accept the agreement for an indefinite suspension.

Amstetben Corporation Matter

' Respondent represented Amstetten Corporation, Inc. in a real estate mortgage refinance matter in 1996. The mortgage was refinanced by First Palmetto Savings Bank (First Palmetto). The closing took place in respondent’s office on June 20, 1996. As a result of the transaction, respondent was instructed to set up a trust account, file the mortgage documents, and pay the Richland County taxes for the year 1995.

Respondent received $150,000.00 from First Palmetto and allegedly, this amount was deposited into respondent’s trust account with Wachovia Bank on June 21,1996.

Respondent produced financial records which did not include bank statements and checks for the year 1996. Respondent stated he misplaced those financial records. Respondent ordered monthly statements for 1996 from his bank, which reflected a deposit of $150,000.00 on June 21, 1996. However, an examination of respondent’s trust account records failed to produce a deposit ticket for the $150,000.00 transaction, or an entry in respondent’s Safeguard system.

Respondent’s client files on this transaction were examined and the materials did not reflect a ledger card, disbursement sheet, or closing statement to support bank receipt of these funds. Respondent claims he is unable to locate or provide any of the disbursement documents.

[635]*635Respondent, pursuant to the closing instructions, also was to pay the Richland County taxes for tax year 1995, in the amount of $3,107.79. Respondent admits failing to pay the 1995 taxes, but states the failure was due to an administrative oversight by his secretary.

Pursuant to county procedures, the Richland County Treasurer’s Office auctioned off the property of Amstetten Corporation in December 1996, for failure of the property owners to pay the 1995 tax bill. The property was subject to redemption by the owners, upon payment of 1995 taxes, interest, penalties, and the current taxes due for 1996. Respondent and Amstetten Corporation were notified of the sale by letter from the Richland County Treasurer on October 22,1997.

The Treasurer’s letter also indicated the First Palmetto mortgage was not indexed under the number which it was supposed to be indexed. Subsequently, the Treasurer gained knowledge that First Palmetto had an existing mortgage on the property. First Palmetto was notified of the sale and the requisite actions necessary to redeem the property, prior to the actual sale.

Respondent, as a result of the June 20, 1996 closing, was supposed to file the First Palmetto mortgage reflecting the $150,000.00 refinancing transaction. Respondent admits he did not file the mortgage in a timely fashion. Further, an examination of respondent’s client file regarding this matter failed to produce any document reflecting that the new mortgage was filed by respondent after the June 20, 1996 closing and prior to July 24, 1997. Respondent’s 1996 financial records were also examined and they failed to yield a receipt or a copy of the check written to the county RMC office to pay for the filing of the mortgage.

Respondent failed to respond to a representative of First Palmetto’s repeated telephone calls about this matter. Respondent also failed to communicate with First Palmetto’s counsel. Respondent stated he felt it more appropriate to go through his title insurance company’s lawyer and let that lawyer deal directly with counsel for the lender.

Respondent eventually filed the mortgage on July 24, 1997; however, the mortgage was rejected by the RMC office for failing to have the requisite signatures. The mortgage was [636]*636refiled on October 31, 1997. The check written from respondent’s trust fund account payable to RMC, while dated June 20, 1996, was not negotiated until July 1997, corresponding to the filing date.

Respondent admits between June 20, 1996 and October 14, 1997, that $2,977.99 of the client’s $3,107.79, being held in trust to pay the 1995 county taxes, was misappropriated and converted to purposes other than for which it was intended. Further, respondent admits he deposited and commingled personal funds into the trust account to make up for the shortage of client funds.

In a letter to Disciplinary Counsel regarding this matter, respondent made several false statements.

Other Trust Account Violations

Respondent misappropriated funds for his own use by repaying personal loans, and paying for personal and family expenses. Respondent also commingled personal funds with client funds.

Jeffcoat/Gore Matter

Respondent represented client Ronald McCombs relative to a personal litigation matter during 1996 and 1997. A deposition of Jacquelyn McCombs was taken on March 8, 1996. Respondent ordered a copy of the deposition from court reporter, Annette Gore. Respondent admits ordering and receiving the deposition, as well as receiving the invoice of $629.20. Respondent admits he did not pay Gore when the invoice arrived. He states the payment of the bill was the responsibility of his client and that the bill was not paid in a timely manner because he could not collect payment from his client.

After retaining a lawyer who corresponded with respondent, respondent made partial payment to Gore. When respondent failed to completely pay, Gore retained another lawyer, Samuel L. Jeffcoat. Jeffcoat filed a non-jury complaint in magistrate’s court on or after March 17, 1997. Respondent filed an answer asserting he did not contract with the court reporter and the contract was between his client and Gore.

[637]*637A hearing was held, although respondent failed to appear due to a conflict in court schedules. Judgment was entered against respondent in the amount of the balance of the debt plus $100.00. Respondent has appealed this judgment, and part of the defense is respondent’s reliance on an Ethics Advisory Opinion, which states the client is responsible for deposition costs in specific circumstances.

Kimberly Engelke Matter

Kimberly Engelke submitted a letter of complaint to the Office of Disciplinary Counsel on August 5, 1997. Engelke is respondent’s client in a divorce action. The letter stated respondent has failed to communicate with her, has misinformed her as to whether certain documents were being filed, and has not followed through on actions respondent stated he would perform in the furtherance of her case.

In a final divorce hearing, dated August 13, 1997, Engelke stated on the record that she was satisfied with the advice and counsel her attorney had given her. Respondent, in a letter to the Office of Disciplinary Counsel, stated he had written to the court reporter of that hearing and requested a copy of the transcript to verify Engelke’s statement. However, respondent received the transcript and failed to submit the transcript to the Office of Disciplinary Counsel for review immediately upon receipt.

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Related

In re Norfleet
595 S.E.2d 243 (Supreme Court of South Carolina, 2004)

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Bluebook (online)
515 S.E.2d 93, 334 S.C. 633, 1999 S.C. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-graab-sc-1999.