Davis Adv. Sh. No. 6
S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of
Donald M. Holler, Respondent.
Opinion No. 24760
Heard December 15, 1997 - Filed February 9, 1998
DEFINITE SUSPENSION
PER CURIAM: In this attorney disciplinary matter, we impose on
Donald M. Holler ("Attorney") a 30 day suspension and place him on
disability inactive status.
FACTS
DAVIS MATTER
Attorney admitted the following allegations: In August 1993, Hackles
Davis, Jr. retained Attorney to handle two separate legal matters. These
included a dispute with Davis's brother regarding the dissolution of a farming
partnership and an accounting of various partnership assets, and a dispute
with Davis's brother and other parties regarding certain real property. Davis
p. 13
paid Attorney a retainer of $1,000.00.
Davis alleged that Attorney failed to communicate with him about the
status of these matters, failed to return his phone calls, and failed to supply
him with an accounting for the fees Davis paid him.
The Panel found that Attorney had prepared a complaint with respect
to the dissolution of the farming partnership. Davis stated that Attorney had
told him that he had filed the action, but when Davis went to the clerk of
court's office, he was told that nothing was on file. Attorney claimed that he
had received a phone call on his answering machine from a woman indicating
that Davis did not want the suit brought because Davis and his brother were
trying to resolve the matter on their own. Davis, his wife, and his son
denied having knowledge of any call to Attorney asking him to cease working
on the case.
In relation to the dispute surrounding the real property, a deed had
been prepared incorrectly, and Davis had hired Attorney to correct this
problem. Attorney did not take any action; nor did he respond to numerous
phone calls by Davis. Additionally, Attorney failed to respond to the letters
from the Board of Commissioners on Grievances and Discipline.
JENKINS MATTER
Attorney admitted the following allegations: In June 1994, Robert
Jenkins retained Attorney to represent him in transferring title to some real
estate and in bringing an action against a car dealership for a defective paint
job. Jenkins paid Attorney a $500.00 retainer. Jenkins claimed that he did
not receive the deed. After Jenkins complained to the Board, Attorney
reports that he sent him a copy of the deed. Attorney never took any action
for Jenkins as to the paint job, and he never returned the retainer. He failed
to respond to Jenkins's attempts to contact him about the status of these
matters. He also failed to respond to two letters from the Board.
The Panel found that the deed transferring the property to Jenkins by
his daughter was originally signed in June or July 1994, but was apparently
lost by Attorney and never filed. Attorney prepared the deed again, and it
was executed on November 8, 1994 and recorded by Attorney on December
21, 1994. Jenkins did not receive a copy of the deed from Attorney.
Attorney would not respond to Jenkins's attempts to contact him by phone
and letter. Jenkins's daughter testified that Attorney had told her that the
first deed was lost when Attorney was moving between offices and that he
p. 14
had prepared a second deed. She also indicated that Attorney had told her
that the action concerning the paint job had been filed, but no copies had
been sent to her.
Attorney testified that there were two deeds; the second was prepared
to correct the first. He stated that he had sent the first deed to Jenkins, but
did not know whether he had sent the second. He admitted not having sent
a copy of the second deed to Jenkins until after the complaint was filed. He
also admitted to failing to respond to the letters from the Board of
Commissioners on Grievances and Discipline.
MANIGAULT MATTER
Attorney admitted the following allegations: Attorney was the buyer's
attorney for the closing of a sale of land in Berkeley County by Clifton
Manigault in August 1995. From the closing, Attorney retained $3,086.50,
of which $450.00 was his fee, $2,488.50 was for taxes on the property to be
sent by him to the Department of Revenue, and $148.00 was for deed stamps.
Attorney failed to pay the Department of Revenue until September 9, 1996,
after Manigault complained to the Board on August 20, 1996. Attorney also
failed to record the deed until after Manigault complained.
The Panel found that Attorney breached the Rules of Professional
Conduct, Rule 407, SCACR, by failing to deliver promptly to a client or to a
third person such funds client or person was entitled to receive (Rule 1.15(b));
by failing to act with reasonable diligence and promptness in representing a
client (Rule 1.3); and by failing to keep a client reasonably informed about
-the status of a matter and to promptly comply with reasonable requests for
information (Rule 1.4(a)). Additionally, Attorney failed to cooperate with the
investigations of the Board. See In re Treacy, 277 S.C. 514, 290 S.E.2d 240
(1982).
The Panel was impressed with Attorney's honesty and his desire for
treatment and rehabilitation. It was convinced that Attorney's failings did
not represent a willingness to allow or condone wrongdoing, but were the
result of a single, isolated incident of major depression stemming from
numerous difficult circumstances. In its March 24, 1997 report, the Panel
recommended that Attorney's sanction be a public reprimand conditioned
upon repayment of $500.00 to Jenkins and $1000.00 to Davis. Furthermore,
the Panel recommended that Attorney be barred from active daily practice
unless he agrees to participate in a mentor program and to file psychological
reports not less frequently than every six months until such time that his
p. 15
psychiatrist certifies that the current mental illness has ended and has been
successfully treated.
The Interim Review Committee voted to adopt the Panel's findings of
fact and conclusions of law; however, it disagreed with the suggested
sanction. It unanimously recommended that Attorney be suspended from the
practice of law for 30 days, and in light of the fact that Attorney is presently
on administrative suspension for his failure to pay Bar dues,1 that he be
placed on disability inactive status.
SANCTION
We have imposed a wide range of sanctions in cases involving such
misconduct as neglect of legal matters, failure to disburse proceeds, failure
to communicate with clients, and failure to cooperate with the Board. Cases
in which public reprimands have been imposed include the following: In re
Davis, 321 S.C. 281 (1996); In re Larkin, 320 S.C. 512, 466 S.E.2d 355 (1996);
In re Ledford, 317 S.C. 177, 452 S.E.2d 605 (1994); In re Warder, 316 S.C.
249, 449 S.E.2d 489 (1994); In re Howard, III, 303 S.C. 278, 400 S.E.2d 138
(1991); In re Alexander, 301 S.C. 212, 391 S.E.2d 254 (1990); In re Nida, 297
S.C. 541, 377 S.E.2d 580 (1989).
Definite suspensions have been imposed in the following cases: In re
Shibley, 320 S.C. 362, 465 S.E.2d 356 (1995)(60 day suspension); In re Tootle,
319 S.C. 392, 461 S.E.2d 824 (1995)(4 month suspension); In re Acker, 308
S.C. 338, 417 S.E.2d 862 (1992)(6 month suspension); In re Nida, 315 S.C.
132, 432 S.E.2d 462 (1993)(9 month suspension); In re Ballard, 312 S.C. 227,
439 S.E.2d 846 (1994)(1 year suspension); In re Palmer, 298 S.C. 324, 380
S.E.2d 813 (1989)(1 year suspension); In re Chastain, 316 S.C. 438, 450
S.E.2d 578 (1994)(2 year suspension).
In the present case, the gravity of Attorney's misconduct warrants a
sanction of suspension. In mitigation, we consider that Attorney has
admitted nearly all the allegations against him. Moreover, he has presented
a significant amount of other evidence in mitigation. Attorney developed a
severe depression during the period of time the above instances of misconduct
occurred. His psychiatrist, Dr. John Roberts, testified that Attorney suffered
from a single major depressive episode. Attorney experienced a confluence
for failure to pay Bar dues. On August 5, 1997, the Court issued an order
suspending him for failure to pay Bar dues.
p. 16
of unfortunate circumstances: He ran into financial difficulty as a result of
poor business; he had to become the sole caretaker for his mother who had
developed Alzheimer's disease; he had spent 400 hours on a case, but five
days prior to trial, his client decided to back out, leaving Attorney without
pay. During this period, he became depressed, having crying spells, social
withdrawal, fatigue, weight-loss, and suicidal tendencies. He and his wife
separated.
Attorney's psychiatrist prescribed an anti-depressant for him. Dr.
Roberts did not believe that Attorney was likely to repeat his neglectful
pattern of behavior with clients. The psychiatrist's testimony was confirmed
in many respects by Attorney's wife and children, who testified to his weight-
loss, depression, and isolation. Thus, it does not appear that Attorney's
neglect of legal matters stemmed from innate corruption, but resulted largely
from his psychological condition.
Considering Attorney's misconduct, we conclude that an appropriate
sanction is a 30 day suspension to commence from the date of this opinion.
Moreover, because of his condition, Attorney is to be placed on disability
inactive status. In addition to fulfilling the requirements for reinstatement
as set forth in Paragraph 19, Rule 413, SCACR, prior to his reinstatement,
Attorney must also make restitution to his clients (in the amounts of
$1000.00 to Davis and $500.00 to Jenkins). While Attorney is on disability
inactive status, the requirements of Bar dues and continuing legal education
will be suspended.
DEFINITE SUSPENSION.
C.J.
A.J.
A.J.
A.J.
A.J.
p. 17