In re Hatley

735 S.E.2d 488, 400 S.C. 470, 2012 S.C. LEXIS 300
CourtSupreme Court of South Carolina
DecidedDecember 12, 2012
DocketAppellate Case No. 2012-212668; No. 27200
StatusPublished

This text of 735 S.E.2d 488 (In re Hatley) 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 Hatley, 735 S.E.2d 488, 400 S.C. 470, 2012 S.C. LEXIS 300 (S.C. 2012).

Opinion

PER CURIAM.

In this attorney disciplinary matter, the Office of Disciplinary Counsel (ODC) and respondent 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 any suspension greater than one (1) year or disbarment. He requests that any suspension or disbarment be imposed retroactive to September 28, 2011, the date of his interim suspension. In the Matter of Hatley, 396 S.C. 216, 721 S.E.2d 767 (2011). In addition, he agrees to pay the costs incurred in the investigation and prosecution of this matter by ODC and the Commission on Lawyer Conduct (the Commission) within thirty (30) days of the imposition of a sanction and to reimburse the Lawyers Fund for Client Protection (Lawyers Fund) for any and all funds paid on his behalf prior to seeking reinstatement. Finally, respondent agrees to complete the Legal Ethics and Practice Program Ethics School and Trust Account School prior to seeking reinstatement. We accept the Agreement and suspend respondent from the practice of law in this state for two (2) years, retroactive to the date of his interim suspension. Respondent shall not file a Petition for Reinstatement until he has completed the Legal Ethics and Practice Program Ethics School and Trust Account School and fully reimbursed all clients and entities, including the Lawyers Fund, harmed as a result of his misconduct. Within thirty (30) days of the date of this opinion, respondent shall pay the costs incurred in the investigation and prosecution of this [472]*472matter by ODC and the Commission. The facts, as set forth in the Agreement, are as follows.

Facts

Matter I

Respondent admits he incurred three insufficient fund reports on his trust account due, in part, to his failure to maintain and reconcile his trust accounts. Respondent further admits that he failed to ensure that the deposits were properly credited to his trust account prior to disbursements. This error occurred when respondent’s primary paralegal was on maternity leave and a temporary paralegal did not timely make the deposits even though the deposit slip had been prepared and packaged for delivery to the bank.

Matter II

As a result of his own internal investigation, respondent discovered that a former paralegal had committed fraud and misappropriation through numerous and creative false entries on closing statements. Although the paralegal did not follow a specific pattern, in one scenario the paralegal listed her landlord and a creditor as service providers on closing statements, causing checks to be written to these two parties on the paralegal’s behalf. At other times, the paralegal misappropriated the funds due to the law firm and, instead, allocated those funds to her own creditors. In total, the paralegal misappropriated approximately $21,665.29 from twenty (20) different closings by causing twenty-eight (28) checks in relatively small sums to be issued on her behalf.

Prior to the discovery of her fraud and misappropriation, respondent terminated the paralegal for attempting to proceed with a real estate closing without respondent being present. After discovering the misappropriation by the paralegal, respondent immediately contacted the paralegal’s new employer to alert the employer to his discovery. After a review, the new employer determined the paralegal had also committed fraud at its business. By quickly contacting the new employer, respondent limited the paralegal’s misappropriation at the new employer although she had already misappropriated a [473]*473much larger sum from her new employer than she had at respondent’s practice.1

Respondent acknowledges that it is his responsibility to supervise the activities of his staff and the failure to timely detect the paralegal’s criminal activities was due, in part, to his failure to follow Rule 417, SCACR. Respondent has now conducted a complete audit of his closing files and has repaid the amount misappropriated, $21,665.29, with his personal funds.

Matter III

While conducting an audit of real estate files in conjunction with the prior matter, respondent discovered that another former paralegal had committed fraud and misappropriation in one closing. When the check for taxes was returned because the seller had paid the taxes prior to the sale, the paralegal voided the check and wrote a new reduced check in the amount of $473.02 for taxes. When respondent contacted the county office to question this reduced amount, it was discovered that the check was for property taxes on property personally owned by the paralegal.

Prior to the discovery of this misappropriation, respondent had terminated the paralegal due to poor work habits. After discovery of the misappropriation, respondent contacted the paralegal and she promised to repay the stolen funds. The paralegal repaid $100.00 of the misappropriated funds. Respondent repaid the remaining $373.02 from his personal funds.

Upon discovery, respondent self-reported this matter to ODC. Respondent has now conducted a complete audit of his closing files and determined this is the only instance of fraud by this paralegal.2

[474]*474 Matter IV

Respondent acknowledges that he failed to ensure procedures were in place that would thwart staff misappropriation and misconduct. Respondent states that, prior to these disciplinary proceedings, he lacked a complete understanding of Rule 1.15, RPC, and Rule 417, SCACR. He represents to ODC that he now has the requisite understanding of the Court’s Rules and will institute procedures that are compliant with the rules.

As previously stated, respondent has now conducted a complete audit of his closing files and has repaid the amounts misappropriated by the paralegals with his personal funds. Respondent acknowledges that reliance on the representations of his employees and accountants does not relieve him of the responsibility of meeting the standards for financial record-keeping and the safeguarding of property as set forth in the Court’s Rules.

Matter V

Initially, the complainant in this matter alleged respondent had committed misconduct which is not subject to the Rules of Professional Conduct. Subsequently, the complainant alleged respondent failed to pay the withholding taxes for the complainant’s wife during her employment with respondent. Respondent admits he failed to pay the complainant’s wife’s withholding taxes.

Matter VI

Respondent represented the complainant in a real estate closing. Respondent entered into a business relationship with the complainant without obtaining the requisite written waivers and disclosures required by Rule 1.8, RPC, in that he did not acquire a writing apart from the Agreement establishing he would not represent the complainant in the transaction and that the complainant should consult separate counsel. The Agreement between respondent and the complainant specifically acknowledges that both parties had time to deliberate and consult with their respective attorneys.

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Related

In Re Gamble
721 S.E.2d 767 (Supreme Court of South Carolina, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
735 S.E.2d 488, 400 S.C. 470, 2012 S.C. LEXIS 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hatley-sc-2012.