THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of George
Allen Graab, Jr., Respondent.
Opinion No. 24926
Submitted February 9, 1999 - Filed March 22, 1999
George Allen Graab, Jr., of Lexington, pro se.
Henry B. Richardson, Jr., of Columbia, for the Office
of Disciplinary Counsel.
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.
Amstetten Corpration 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.
IN THE MATTER OF GRAAB
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 hie is
unable to locate or provide any of the disbursement documents.
Respondent, 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
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
IN THE MATTER OF GRAAB
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 refiled 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.
Respondent represented client Ronald McCombs relative to a
personal litigation matter during 1996 and 1997. A deposition of Jacquelyn
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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
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.
A 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.
A notice of full investigation was submitted to respondent which
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included allegations that respondent had failed to provide proof of the
client's posture to the Office of Disciplinary Counsel. Respondent submitted
a response which stated he had received the hearing transcript and that the
transcript supports his position.
Respondent was interviewed by an investigator, during which
respondent provided a copy of the transcript, and stated his failure to
provide the transcript to the Office of Disciplinary Counsel was an oversight
due to matters in his professional and personal life.
Disciplinary Counsel (complainant)
A fee dispute arose between respondent and a client, John F.
Flannery. As a result, a fee dispute application was filed with the Fee
Dispute Board on September 3, 1996. A hearing before the Board was held
and the Board recommended the matter be resolved by respondent
reimbursing Flannery $500.00. Flannery notified the Board on March 21
and April 27, 1998 that respondent had failed to pay the amount of $500.00.
A letter of information was submitted to Disciplinary Counsel who wrote to
respondent requesting a reply within fifteen days. The letter was hand
delivered to respondent during his interview with an investigator. There
was a misunderstanding between respondent and the investigator as to
when respondent's written response was due. Respondent has since
provided a written response.
Respondent has violated numerous provisions of the Rules of
Professional Conduct contained in Rule 407, SCACR. Respondent converted
client funds for his own purposes and failed to keep complete records of his
trust account funds. Rule 1.15. He failed to provide competent
representation. Rule 1.1. He failed to act with reasonable diligence and
promptness. Rule 1.3. He failed to keep his client reasonably informed
about the status of the case and respond to requests. Rule 1.4. Respondent
brought or defended a proceeding, or asserted or controverted an issue which
was frivolous. Rule 3.1. He knowingly made false statements of a material
fact to a tribunal. Rule 3.3. Respondent failed to make truthful statements
to others. Rule 4.1. He failed to have respect for the rights of others. Rule
4.4. He knowingly made false statements to the Office of Disciplinary
Counsel, failed to disclose facts to that office, and failed to respond to a
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lawful demand for information from that office. Rule 8.1(a) & (b). He
engaged in conduct involving dishonesty, fraud, deceit and
misrepresentation in violation of Rule 8.4 (a),(d),&(e).
Accordingly, respondent is suspended indefinitely. Within
fifteen days of the date of this opinion, respondent shall file an affidavit with
the Clerk of this Court showing that he has complied with Rule 30 of Rule