Davis Adv. Sh. No. 34
THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of R.
Eugene Miller, Respondent.
Opinion No. 24722
Submitted October 29, 1997 - Filed December 8, 1997
Coming B. Gibbs, Jr., of Charleston, for respondent.
Attorney General Charles Molony Condon and Senior Assistant
Attorney General James G. Bogle, Jr., both of Columbia, for
PER CURIAM: In this attorney grievance matter, respondent
has admitted the allegations against him and consents to disbarment. We
accept his admission and disbar respondent. The admitted allegations
involve several different matters, discussed separately below.
Abundant Life Church Matter
Abundant Life Church (Church) consolidated three mortgages
into one and chose respondent to close the transaction. Respondent
received a check for $455,059 which he deposited in his trust account on
July 28, 1995. The ending balance in the trust account for July 1995 was
$434,642.99 which indicated respondent had misappropriated the Church's
funds. During August, two of the Church's mortgages were satisfied with
funds from respondent's trust account. Instead of satisfying the third
mortgage for $360,309.71, respondent began making monthly payments.
In October, an unrelated third party gave respondent a check
IN-THE MATTER OF MILLER
for $359,209.93 which respondent deposited in his trust account.
Respondent then wrote a check to satisfy the Church's third mortgage.
However, the third party's check was not honored by the drawee bank,
and therefore the funds in respondent's trust account were insufficient to
cover the check. The bank which maintained respondent's trust account
honored the check anyway, leaving a negative balance in respondent's
trust account of $347,732.61.
Respondent negotiated with the bank to pay the amount owed.
During those negotiations, respondent attempted to dissuade the bank
from revealing his misconduct by threatening, "I must caution you,
however, that should punitive action be instigated or information leaked to
the Bar, . . . then my individual efforts to satisfy the bank and to remove
the problem as it relates to me will not only become impaired but will
become a matter of impossibility."
Estate of Raymond Fougerousee Matter
In July of 1993, respondent was asked to represent the estate
of Raymond Fougerousee. A check for $244,000, representing the principal
amount of the estate, was deposited into respondent's trust account in
July. In October, a check for $1,363.56 was also deposited. Mr.
Fougerousee's widow instructed respondent to use these proceeds to satisfy
two residential mortgages. Instead of following her instructions,
respondent made monthly payments on these mortgages from July of 1993
until the fall of 1995. These mortgages remain unsatisfied, and as of
August 4, 1997, respondent's trust account had a zero balance.
John Thomas Parker Matter
John Thomas Parker gave respondent a check for $28,060.80 in
April of 1993 to give to the South Carolina Coastal Council to release an
easement. Respondent deposited the check in his trust account and
thereafter misappropriated Parker's money.
Annie Laurie Bendt Matter
Annie Laurie Bendt is engaged in the business of buying and
selling real estate in Charleston. In December of 1994, respondent
received $189,995.93 as Bendt's escrow agent. In March of 1995, Bendt
gave respondent approximately $23,000 to hold in relation to an option to
purchase property. In April of 1995, Bendt gave respondent $142,153.23
IN THE MATTER OF MILLER
which she received after a closing, bringing the total of her funds held by
respondent $355,149.16. During the spring of 1995, Bendt received part of
her money, thereby reducing the balance of her funds held by respondent
to $133,539.83. In October, Bendt needed $83,495.76 to purchase property
in Georgia. At that time, respondent did not have sufficient funds in his
trust account to give Bendt that sum, but arranged for an artificial
balance through a check kiting scheme with a third party. Respondent did
not give Bendt the funds she needed until eight days after she requested
In December of 1994, Bendt sold a home. On behalf of Bendt,
respondent received a check payable to MARCAR Title Insurance Agency.1
Respondent endorsed the check and deposited it into his trust account. In
April of 1995, Bendt sold another home. As part of the transaction, she
wrote a check to MARCAR Title Insurance Agency, which respondent also
endorsed and deposited into his trust account. Furthermore, MARCAR
was reflected as the seller in the April transaction even though respondent
had no right to use MARCAR as an intermediary for any transaction.
Annie Laurie Bendt and Scott Elliott/Florence Medlin Matter
Bendt purchased property owned by Scott Elliott and Florence
Medlin in April of 1995. Respondent served as the closing attorney.
Instead of satisfying the prior mortgage held by Elliott and Medlin,
respondent made two monthly payments.
Margaret Schultz Matter
Margaret Schultz purchased property and hired respondent to
represent her. She entrusted respondent with a cashier's check from her
home equity line of credit for $175,000 and a check for $5,000 from her
personal account. Respondent was to bring this money to the closing.
Respondent failed to bring the money, but assured the attorney who
conducted the closing he would satisfy the seller's mortgage with the
$180,000 in his possession plus approximately $17,397.30 given to him as
a result of the closing.
Respondent exchanged the cashier's check for $175,000 for two
checks, one for $95,000 payable to respondent and one for $80,000 payable
1 Respondent and his former partner, Berry Baker, were MARCAR's officers.
Their children were the stockholders.
IN THE MATTER OF MILLER
to First Federal Bank. The check to First Federal was used to satisfy the
debt of another client.
Respondent used the $17,397.30 check given to him at the
closing to purchase one cashier's check payable to himself in the amount
of $7,000 and another one payable to himself in the amount of $7,112.98.
He also purchased a cashier's check payable to Charleston County
Treasurer in the amount of $3,284.32. The two checks payable to
respondent were recovered and turned over to a court-appointed trustee.
However, respondent misappropriated the rest of Schultz's money.
The Stiles Point Matter
A lot in Stiles Point Plantation was sold in April of 1995,
Respondent was the escrow agent for this transaction and received
$109,654.11 which he subsequently misappropriated.
Lewis and Amy White Matter
During September of 1995, Lewis and Amy White sold property
and chose respondent as their escrow agent. He was given $110,463.99 to
satisfy an $80,000 mortgage given by First Federal and a loan of $30,000.
Respondent paid First Federal, but the money he used came from the
Margaret Schultz transaction discussed above. The loan was never paid.
Respondent then used the money given to him as a result of the Whites'
transaction to open another trust account. At the end of October, the
balance in this trust account was $26,265.23, and at the end of the year,
the balance had dipped to $7,298.83.
Erica Johnson Matter
Erica Johnson and her two children were injured in a car
accident in June of 1993. Johnson retained respondent to represent them.
In October of 1994, respondent received three insurance checks for the
Johnsons totaling $52,972.36 which he deposited in his trust account. Of
this sum, Johnson only received $14,604.66.
Mary Urie and Livisco Urie Matter
Mary Urie and her son Livisco were injured in a car accident
in November of 1994. As their attorney, respondent settled their case and
received insurance checks for $25,000. However, the Uries received only
IN THE MATTER OF MILLER
$9,077.19 of that settlement.
The Estate of Herman Bell Matter
Respondent represented the estate of Herman Bell. Bell was
killed when he was hit by a car. Bell's personal representative brought
suit on his behalf, and a settlement was reached. The amount due the
personal representative after court costs and attorney's fees were deducted
was $15,626.50. The personal representative had agreed to share this
amount with a deceased brother. Although the personal representative
received her half, respondent misappropriated the deceased brother's half
which amounted to $7,813.25.
John Bennett Matter
A Charleston attorney, John Bennett, complained to the
Commission on Lawyer Conduct after respondent served as the closing
attorney for a Mr. and Mrs. Johnson in June of 1995. Instead of
satisfying a prior mortgage, respondent made two monthly payments
before making the final payment in August of 1995. In the meantime,
respondent misappropriated the Johnsons' funds. To cover a negative
balance in his trust account, he then engaged in a check kiting scheme,
procuring from a third party a check for $159,750. Respondent used this
sum, plus another client's funds, to satisfy the Johnsons' prior mortgage.
Heyward McDonald Matter
A Columbia attorney, Heyward McDonald, also complained to
the Commission about respondent after respondent served as the closing
attorney for a sale of real estate in April of 1995. Respondent was to
satisfy a mortgage for the seller, Mrs. Galloway, in the amount of
$286,907.62. Instead, he misappropriated these funds and continued to
make monthly payments on the mortgage. In July of 1995, respondent
used funds belonging to other clients to satisfy this mortgage.
Jack and Dorothy Jaskwhich Matter
Jack and Dorothy Jaskwhich sold real estate to Annie L. Bendt
in October of 1994. Respondent closed the transaction, but did not satisfy
the Jaskwhiches' mortgage. Instead, he converted their funds to his own
use and continued to make their monthly payments until November of
IN THE MATTER OF MILLER
1995. At that time, respondent used funds from another source to satisfy
Thomas C. and Julia Huffman Matter
In April of 1994, the Huffmans refinanced a loan and asked
respondent to handle the closing. As a result of the closing, respondent
received $95,565.50 which was to be used to pay the Huffmans' prior
mortgage. Instead of satisfying the mortgage, respondent made three
monthly payments and converted the Huffmans's funds to his own use.
Respondent used funds from another source to satisfy this mortgage in
June of 1994.
D.E. Palassis Matter
Respondent represented D.E. Palassis in a closing in July of
1993. As a result of prospective improvements on the land involved,
Palassis asked respondent to withhold $18,000 of the proceeds due him.
Respondent withheld these funds and converted them to his ow-n use.
Commingling of Funds
During 1994, respondent received sums of money from third
parties which he deposited into his trust account to prevent shortages
therein, thereby co-mingling non-client funds with client funds.
During 1994 and 1995, respondent solicited the assistance of
other persons to engage in check kiting to create artificial balances in his
trust account until he could receive client funds to cover these shortages.
Records show seven checks totaling $842,709.93 were drawn on four
different banks as part of this scheme.
These repeated instances of improper conduct regarding client
funds demonstrate a pattern and practice of violating the Rules of
Professional Conduct. Rule 407, SCACR. Respondent has failed to act
with reasonable diligence and promptness in representing clients. Rule
1.3. He has misappropriated client funds, has failed to promptly deliver to
third persons funds they were entitled to receive, and has failed to render
a full accounting regarding the property third persons as required by Rule
1.15. He has engaged in reprehensible conduct involving dishonesty,
IN THE MATTER OF MILLER
fraud, deceit and misrepresentation. Rule 8.4(d). He has engaged in
conduct prejudicial to the administration of justice. Rule 8.4(e). His
conduct has brought the legal profession into disrepute and has
demonstrated his unfitness to practice law. This conduct warrants
Accordingly, we disbar respondent from the practice of law.
Respondent has requested his disbarment be retroactive to the date of his
interim suspension. This request is denied. Within fifteen days of the
date of this opinion, respondent shall file an affidavit with the Clerk of
Court showing he has complied with Rule 30 of the Rules for Lawyer
Disciplinary Enforcement, Rule 413, SCACR. In addition to all other
requirements respondent must meet to be reinstated under Rule 413,
SCACR, no petition for reinstatement shall be accepted until respondent
has filed proof he has made full restitution to all institutions and
individuals who have lost money as a result of his fraudulent acts or
mishandling of trust funds, to include restitution to the Lawyer's Fund for
Client Protection for any payment it may make.
Burnett, A.J., not participating.