In re Kitchel

604 S.E.2d 381, 361 S.C. 149, 2004 S.C. LEXIS 249
CourtSupreme Court of South Carolina
DecidedOctober 25, 2004
DocketNo. 25881
StatusPublished

This text of 604 S.E.2d 381 (In re Kitchel) 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 Kitchel, 604 S.E.2d 381, 361 S.C. 149, 2004 S.C. LEXIS 249 (S.C. 2004).

Opinion

PER CURIAM:

In this attorney disciplinary matter, respondent and the Office of Disciplinary Counsel (ODC) have entered into an Agreement for Discipline by Consent pursuant to Rule 21, [150]*150RLDE, Rule 413, SCACR. In the agreement, respondent admits misconduct and consents to any sanction up to an eighteen month suspension from the practice of law. See Rule 7, RLDE, Rule 413, SCACR. We accept the agreement and impose a definite suspension of eighteen months from the practice of law. The facts, as set forth in the agreement, are as follows.

FACTS

Matter I

In 2000, respondent was paid a retainer of approximately $5,000 to represent Client A in defense of federal drug charges. During the time that respondent represented Client A, Client A was also represented by Attorney Newman in an unrelated matter. In the course of that representation, Mr. Newman obtained approximately $2,268.90 on Client A’s behalf. In November 2000, Mr. Newman forwarded those funds to respondent in trust for Client A. At the time the funds were forwarded to respondent, Mr. Newman notified respondent of his claim to attorney fees from those funds. Client A claimed he did not owe Mr. Newman any money and refused to allow respondent to disburse funds to him.

When respondent did not receive a copy of a written agreement between Client A and Mr. Newman concerning the funds, respondent disbursed the funds to Client A and to himself without holding in trust the amount claimed by Mr. Newman. Respondent did not prepare a written accounting of the disbursement of these funds.

Investigation of the complaint was referred to an Attorney Appointed to Assist Disciplinary Counsel (ATA). The ATA notified respondent of his appointment by letter dated November 25, 2002, requesting respondent contact him within thirty days to arrange for a meeting. Respondent failed to respond or otherwise communicate with the ATA in response to his November 25, 2002 letter. On December 26, 2002, the ATA sent respondent a second letter, again requesting his contact within thirty days. This letter was sent to respondent by certified mail and receipt was confirmed. Respondent failed to respond or otherwise communicate with the ATA following receipt of the December 26, 2002 letter.

[151]*151Respondent did respond to the initial inquiries of ODC in this matter. However, he failed to respond to the Notice of Full Investigation served on him on June 26, 2003. Respondent subsequently appeared pursuant to Rule 19(c)(4), RLDE, Rule 413, SCACR, and responded to the allegations on the record.

Matter II

In June 2002, Mrs. B paid respondent a retainer of approximately $2,500 to represent her son, Client B, in a post-conviction relief matter. Respondent fully investigated the case and adequately communicated with his client about the investigation. When Mrs. B and Client B became dissatisfied with the time it was taking for a hearing to be scheduled, Mrs. B terminated respondent’s representation. Respondent failed, however, to confirm the termination with Client B and failed to seek a withdrawal from the matter with the court.

Respondent was notified of the complaint by letter from ODC. The letter requested a response within fifteen days. Respondent did not respond to the letter or to a subsequent letter sent pursuant to In the Matter of Treacy, 277 S.C. 514, 290 S.E.2d 240 (1982). Respondent also failed to respond to the Notice of Full Investigation served on him on June 27, 2003. Respondent subsequently appeared pursuant to Rule 19(c)(4), RLDE, Rule 413, SCACR, and responded to the allegations on the record.

Matter III

On September 24, 2002, respondent was paid a retainer to represent Client C in a federal criminal case. Client C entered a guilty plea on November 4, 2002 and was scheduled to be sentenced at a March 4, 2003 hearing. Respondent had no contact with his client following the plea. Respondent did not provide him with a copy of the presentence report.

Because respondent was not diligently collecting his mail and because his office telephone had been disconnected, respondent did not receive the notice of the sentencing hearing and, therefore, failed to appear. Telephone calls were placed from the clerk of court’s office to respondent, but he could not [152]*152be reached. The presiding judge appointed new counsel to represent Client C in the sentencing phase of his case.

Respondent was notified of the complaint by letter from ODC which requested a response within fifteen days. Respondent did not respond to that letter or a subsequent inquiry sent pursuant to In the Matter of Treacy, id. Respondent also failed to respond to the Notice of Full Investigation served on June 27, 2003. Respondent subsequently appeared pursuant to Rule 19(c)(4), RLDE, Rule, 413, SCACR.

Matter IV

In November 2002, Client D paid respondent approximately $585 to handle a bankruptcy matter. Respondent competently and diligently represented Client D, however, the bankruptcy was dismissed because Client D did not produce certain documentation required by the trustee. Client D demanded respondent refund his retainer and provide him with his client file. Respondent did not refund the fee as he felt it had been earned. However, respondent did not send Client D his client file.

Respondent was notified of the complaint by letter from ODC which requested a response within fifteen days. Respondent did not respond to that letter or a subsequent inquiry sent pursuant to In the Matter of Treacy, id. Respondent also failed to respond to the Notice of Full Investigation served on June 27, 2003. Respondent subsequently appeared pursuant to Rule 19(c)(4), RLDE, Rule, 413, SCACR.

Matter V

Client E paid respondent a retainer to assist him in defense of driving while intoxicated charges pending in Georgia. At the time respondent was retained, he was not licensed to practice law in Georgia. Although respondent advised Client E that he was not licensed in Georgia and that he could only try to get the matter continued until a deal could be made or Georgia counsel could be retained, respondent did not confirm this arrangement in writing.

Respondent sent a request to the clerk of court for a continuance of the hearing. Respondent called to confirm receipt and was informed that the request was denied. Re[153]*153spondent informed Client E that he needed to retain an attorney licensed in Georgia and that his hearing was not continued. Neither respondent nor Client E appeared at the hearing. As a result, Client E’s license was suspended.

Respondent was notified of the complaint by letter from ODC which requested a response within fifteen days. Respondent did not respond to that letter or a subsequent inquiry sent pursuant to Matter of Treacy, id. Respondent also failed to respond to the Notice of Full Investigation served on July 31, 2003. Respondent subsequently appeared pursuant to Rule 19(c)(4), RLDE, Rule, 413, SCACR.

Respondent acknowledges he should have confirmed both the limited scope of his representation and the status of Client E’s case in writing.

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Related

In Re Kitchel
554 S.E.2d 868 (Supreme Court of South Carolina, 2001)
In the Matter of Treacy
290 S.E.2d 240 (Supreme Court of South Carolina, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
604 S.E.2d 381, 361 S.C. 149, 2004 S.C. LEXIS 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kitchel-sc-2004.