In re Warlick

573 S.E.2d 776, 352 S.C. 149, 2002 S.C. LEXIS 225
CourtSupreme Court of South Carolina
DecidedNovember 12, 2002
DocketNo. 25556
StatusPublished

This text of 573 S.E.2d 776 (In re Warlick) 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 Warlick, 573 S.E.2d 776, 352 S.C. 149, 2002 S.C. LEXIS 225 (S.C. 2002).

Opinion

PER CURIAM:

In this attorney disciplinary matter, the Commission on Lawyer Conduct filed formal charges against respondent,1 regarding numerous matters of misconduct.2 We agree with the Panel’s recommendation that respondent be disbarred from the practice of law.

[151]*151FACTS

Account Matters

In many of the Formal Charges, respondent has admitted that he failed to maintain a proper trust account and that he commingled personal funds with client funds and other funds in his possession. The records of respondent’s Greenville National Bank Special Account3 show the account had a negative balance on at least six occasions. Throughout the time period covered in these charges, the Subpanel found that respondent continuously violated Rule 1.15, of Rule 407, SCACR, regarding the safekeeping of property. In seventeen separate matters, respondent violated Rule 1.15 and Rule 8 .4, of Rule 407, SCACR, regarding attorney misconduct.4

Mildred Burgess Matter

Respondent settled Mildred Burgess’s case for $18,000. He prepared a settlement sheet that showed a receipt of $18,000, deductions for attorney’s fees of $4,500 and other expenses, and a net to the client of $12,328.50. On the settlement sheet, respondent offered his client three options as to how she would receive the money.

After some discussion, Burgess elected to take a different option of receiving a portion of the settlement immediately and $11,000 via a post-dated check. Burgess testified she believed she was loaning money to respondent that would be repaid at ten percent interest. Respondent testified he did not advise Burgess of her right to seek independent counsel regarding the loan transaction. Respondent issued a counter check to Burgess drawn on his Greenville National Bank Special Account. Burgess negotiated the check. Respondent also gave her a post-dated check, drawn on the same account; [152]*152however, Burgess was unable to negotiate this check because respondent’s accounts were frozen.

The Subpanel found respondent did not maintain his client’s funds in a trust account and commingled the funds -with other funds. The Subpanel found respondent entered into a business transaction with Burgess, the terms of which were not fair and reasonable to the client and were not fully disclosed and transmitted in writing in a manner that the client could reasonably understand. Further, respondent failed to give his client a reasonable opportunity to seek the advice of independent counsel regarding this transaction.

The Subpanel concluded that respondent had violated the following rules of Rule 407, SCACR: Rule 1.4 (communication), Rule 1.5 (fees), Rule 1.8 (prohibited transactions), Rule 1.15 (safekeeping property), Rule 2.1 (advisor), and Rule 8.4 (misconduct).

Fred Howard Matter

Respondent represented Fred Howard in a workers’ compensation matter. During the course of representation, Howard received payments, routed through respondent’s office, from an insurance company.

In October 1998, the insurance company issued a check in the amount of $6,101.21 payable to Howard. Respondent allegedly forged his client’s name to the check. SLED Agent Joyce A. Lauterbach testified that, in her expert opinion, respondent “probably wrote” Howard’s name to the check. In determining whether a signature was written by the actual person, the highest degree of certainty is identification, the second is highly probably, the third probable, the fourth is indications, and the fifth is no conclusion. Therefore, the possibility respondent forged Howard’s name was in the median range.

Respondent testified he saw Howard at a gas station and happened to have his checks with him. Respondent gave a $265 check and the $6,101 check to Howard to sign. He told Howard he needed the check for the larger amount back because his attorney’s fee had not been paid out of the settlement yet. Respondent left the checks with Howard while he paid for his gas, and, therefore, did not see Howard [153]*153sign the check. He retrieved the check that had already been placed back in its envelope from Howard, who indicated respondent could mail the balance from the check to him later. Respondent stated he did not forge Howard’s name to the check.

The Subpanel found that Howard did not endorse the check. However, the Subpanel found the evidence was not clear and convincing that respondent signed Howard’s name to the check or caused another to do so.5 The Subpanel found the check was deposited into respondent’s Special Account, which was not a proper trust account and was commingled with respondent’s funds and others. By November 4th, that account had a negative balance and no intervening disbursements had been made to Howard.

The Subpanel concluded that respondent had violated the following rules of Rule 407, SCACR: Rule 1.1 (competence),6 Rule 1.3 (diligence), Rule 1.4 (communication), Rule 1.5 (fees), Rule 1.15 (safekeeping property), and Rule 8.4 (misconduct).

Ernest and Edna Galloway Matter

Ernest Galloway was 89 years old at the time this matter arose.7 He maintained an investment account, through MFS/ Sun Life of Canada (hereinafter referred to as Sun Life), in his wife’s name with a balance of approximately $100,000.

The Galloways consulted respondent concerning their unhappiness with the amount of income they were receiving from their investment. Respondent suggested he could borrow their funds and pay them $800 per month in interest. As a result, the Galloways cashed in the Sun Life account and delivered a $94,625.11 check to respondent. The Galloways incurred a Sun Life surrender charge of $5,067.33.

[154]*154Respondent executed a handwritten document acknowledging receipt of the check, and promising to return the principal plus 10.2% interest payable monthly at the rate of $800 per month. Respondent indicated he entered into the agreement, which he acknowledged was an extremely unwise thing to do, in an effort to alleviate some of his financial problems.

The Subpanel found respondent entered into a business transaction with his client.8 The Subpanel found the terms on which respondent acquired his interest were not fair and reasonable to the client, and were not fully disclosed and transmitted in writing in a manner in which the client could understand. Further, respondent failed to give his client a reasonable opportunity to seek the advice of independent counsel regarding the transaction.

Respondent used the Galloways’ check to open his Warlick Law Office Special Account at Greenville National Bank on September 23, 1998. After depositing those funds, the balance never again rose above the amount of the check. By October 1, 1998, the Special Account balance dropped to about $7,000. From September 23rd through October 1st, no funds were issued from that account to the Galloways.

Respondent paid what he described as “loan payments” to the Galloways, in the initial amount of $400 and two subsequent $800 payments, all in cash.

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Related

United States v. Hal J. Warlick
742 F.2d 113 (Fourth Circuit, 1984)
In the Matter of Bowers
400 S.E.2d 134 (Supreme Court of South Carolina, 1991)
In Re Larkin
520 S.E.2d 804 (Supreme Court of South Carolina, 1999)
In the Matter of Warlick
339 S.E.2d 110 (Supreme Court of South Carolina, 1985)
Matter of McMillan
490 S.E.2d 1 (Supreme Court of South Carolina, 1997)
Matter of Hendricks
462 S.E.2d 286 (Supreme Court of South Carolina, 1995)
Matter of Miller
494 S.E.2d 120 (Supreme Court of South Carolina, 1997)
In Re Thompson
539 S.E.2d 396 (Supreme Court of South Carolina, 2000)
In re Warlick
372 S.E.2d 910 (Supreme Court of South Carolina, 1988)
In re Warlick
513 S.E.2d 352 (Supreme Court of South Carolina, 1999)
In re Warlick
513 S.E.2d 352 (Supreme Court of South Carolina, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
573 S.E.2d 776, 352 S.C. 149, 2002 S.C. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-warlick-sc-2002.