THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Mark
E. Hall, Respondent.
Opinion No. 24860
Heard October 20, 1998 - Filed November 30, 1998
INDEFINITE SUSPENSION
Attorney General Charles M. Condon and Senior
Assistant Attorney General James G. Bogle, Jr.,
both of Columbia, for Office of Disciplinary Counsel.
PER CURIAM: In this attorney grievance matter, Mark E. Hall
(Respondent) is charged with engaging in misconduct in violation of various
provisions of the Rules of Professional Conduct (RPC) contained in Rule 407,
SCACR, and the Rules for Lawyer Disciplinary Enforcement (RLDE)
contained in Rule 413, SCACR.
PROCEDURAL BACKGROUNE
The Commission on Lawyer Conduct (Commission) began a full
investigation into these matters in April and June 1997. Respondent initially
denied any wrongdoing, but provided incomplete information to investigators.
He did not respond after the filing of formal, charges in October 1997 and
went into default. Respondent did not appear at the subpanel hearing in
January 1998; nor did he appear at the hearing before this Court.
The subpanel found misconduct and recommended disbarment.
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The full panel adopted the report and recommended sanction. We agree with
the panel's findings and conclusions about Respondent's misconduct.
However, we find Respondent's acts warrant an indefinite suspension from
the practice of law.
CHILD SUPPORT MATTER
A family court judge ordered Respondent in October 1994 to pay
$113 per week in child support to Brenda J. Kent, the mother of
Respondent's minor child. The order required Respondent to pay the funds
through family court in Richland County, which would forward the funds to
a child support agency in Minnesota, where Ms. Kent and the child lived.
Respondent failed to make all payments, and by January 1997 was $15,480
in arrears.
At an enforcement hearing, Respondent submitted an affidavit in
which he claimed he had paid Ms. Kent $10,300 -- in cash at her request --
from November 1994 to December 1996. He stated he went to Minnesota in
late 1996 to resolve his payment record, but was unable to meet with child
support officials due to bad weather and closed government offices. Ms. Kent
told him that she would notify officials in Minnesota and South Carolina
about the payments he had made, Respondent stated. The judge found
Respondent in contempt and sentenced him to one year, suspended upon
payment of $5,000 towards the arrearage.
In an affidavit filed after the enforcement hearing, a Minnesota
child support officer stated that Respondent had paid Ms.Kent $5,154, but
still owed her $9,988 in missed payments.1 The child support office was open
on the day Respondent claimed he was in town to discuss the matter, and
Respondent never contacted the child support office, the officer stated. Ms.
Kent stated in an affidavit she had not received the payments Respondent
purportedly made, and never asked him to pay her in cash.
Respondent attempted to explain his actions in a letter to
disciplinary counsel in April 1997. However, Respondent's failure to answer
the formal charges, as well as his failure to appear before the hearing panel
larger arrearage than that claimed by the Minnesota official. Regardless,
Respondent was substantially behind in his payments.
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or this Court, constitutes an admission of the factual allegations. Rule 24, RLDE.
SMITH MATTER
Respondent represented Wilmarth K. Smith, who was injured in
October 1995 when she fell in the parking lot at the Chamber of Commerce
in Columbia. The parties settled the case in July 1996 for $2,775.50, paid
to Ms. Smith and Respondent in two checks, one for $2,275.50 and one for
$500. Respondent did not have a written retainer agreement signed by Ms.
Smith; nor did he give her a written settlement statement. Respondent gave
Ms. Smith a check for $500, which she was unable to cash due to insufficient
funds. When she contacted Respondent about the problem, he gave her
another check for $2,500.2
An analysis of Respondent's trust account, based on records
obtained by subpoena from the bank and Respondent, showed Respondent
deposited $2,000 of the first settlement check and kept the remainder in
cash. He apparently deposited the second settlement check of $500. A few
days later, Respondent wrote himself a check drawn on his trust account for
$2,500, labeling it "attorney fee," The account was overdrawn by $300
shortly after Respondent deposited Ms. Smith's settlement checks, indicating
he misappropriated Ms. Smith's funds to his own use.
Respondent initially refused to provide Ms. Smith's entire case file
and pertinent bank records when contacted by disciplinary counsel. He failed
to cooperate with investigators despite repeated telephone calls and letters.
He promised to provide certain documents after an investigator visited him
at his office, but failed to do so.
Respondent attempted to explain his actions in letters to
disciplinary counsel in April and August 1997. Again, his failure to answer
the formal charges or appear constitutes an admission of the factual
allegations. Rule 24, RLDE.
the $2,500 check. Disciplinary authorities told the subpanel that Ms.
Smith received part of her money from Respondent, at least $500 to
$1,500.
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PAST MISCONDUCT
Three years ago, the Court publicly reprimanded Respondent for
inappropriately handling a real estate transaction. The Court also
reprimanded Respondent for depositing settlement checks into his operating
account instead of his trust account. No clients lost any funds. Matter of
Hall, 319 S.C. 358, 461 S.E.2d 396 (1995). The Bar suspended Respondent's
license March 20, 1998, for failure to pay Bar dues. The Court issued an
order August 7, 1998, holding Respondent in contempt, but that order has not
been served upon Respondent because he cannot be located.
DISCUSSION
This Court has the ultimate authority to discipline attorneys, and
the Commission's findings are not binding. Matter of Dobson, 310 S.C. 422,
427 S.E.2d 166 (1993). However, such findings are entitled to great weight.
Matter of Lake, 269 S.C. 170, 236 S.E.2d 812 (1977).
After examining the facts, we find Respondent's misconduct has
been proven by clear and convincing evidence. In the family court matter,
Respondent committed misconduct by making false statements of material
fact to the family court and the Commission, and by willfully violating the
terms of a valid court order. Rules 7(a)(3) and (7), RLDE.
In the Smith matter, Respondent committed misconduct by failing
to keep Ms. Smith reasonably informed about her case and complying with
reasonable requests for information. Rule. 1.4(a), RPC. Respondent failed
to promptly deliver funds Ms. Smith was entitled to receive or render a full
accounting of those funds. Rule 1.15, RPC. He failed to secure a written
contingency fee agreement or give Ms. Smith a written settlement statement.
Rule 1.5(c), RPC.
In both matters, Respondent engaged in conduct tending to
pollute the administration of justice and demonstrated an unfitness to
practice law. Rule 7(a)(5), RLDE; Rules 8.4(d) and (e), RPC. He violated the
oath of office taken upon admission to practice law. Rule 7(a)(6), RLDE.
Respondent failed to respond to the Commission's inquiries and requests for
information. Rule 7(a)(3), RLDE; Matter of Treacy, 277 S.C. 514, 290 S.E.2d
240 (1982).
An attorney usually does not abandon a license to practice law
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without a fight. Those who do must understand that "neglecting to
participate [in a disciplinary proceeding] is entitled to substantial weight in
determining the sanction." Matter of Sifly, 279 S.C. 113, 115, 302 S.E.2d
858, 859 (1983). An attorney's failure to answer charges or appear to defend
or explain alleged misconduct indicates an obvious disinterest in the practice
of law. Such an attorney is likely to face the most severe sanctions because
a central purpose of the disciplinary process is to protect the public from
unscrupulous and indifferent lawyers. See Preamble to Rule 407, SCACR;
Rule 1, RLDE. In more egregious cases, we have disbarred attorneys who
failed to answer formal charges or appear at hearings before the Commission
or this Court. See Matter of Wofford, 330 S.C. 522, 500 S.E.2d 486 (1998)
(disbarring attorney who failed to answer formal charges, appear at panel
hearing or before Court; attorney in several cases failed to provide competent
representation, keep clients reasonably informed, and promptly deliver funds
to third person; attorney also misappropriated client funds and committed
criminal acts); Matter of Meede, 327 S.C. 169, 488 S.E.2d 875 (1997)
(disbarring attorney who responded initially, but failed to answer formal
charges or ask for panel hearing; attorney continued to represent client after
he was suspended for multiple counts of misconduct); Matter of Sifly, supra
(disbarring attorney who failed to appear before the disciplinary panel or the
Court; attorney mishandled two cases and wrote bad checks).
We previously have imposed a sanction other than disbarment
upon attorneys who engaged in misconduct similar to Respondent's. See
Matter of Cabaniss, 329 S.C. 366, 495 S.E.2d 779 (1998) (definite suspension
of two years for failing to maintain financial records, commingling funds from
personal, operating and trust accounts, misusing trust funds, and failing to
perform services); Matter of Edwards, 293 S.C. 413, 361 S.E.2d 123 (1987)
(indefinitely suspending attorney who presented false documents in workers'
compensation case, gave forged divorce order allegedly executed by family
court judge to client, and improperly used trust funds to cover shortages in
other accounts).
CONCLUSION
For the foregoing reasons, we find Respondent committed
misconduct. Respondent is hereby indefinitely suspended from the practice
of law. Within fifteen (15) days of the date of this opinion, respondent shall
file the affidavit required by Rule 30(g), RLDE. In addition to all other
requirements respondent must meet to be reinstated under Rule 33, RLDE,
no petition for reinstatement shall be accepted until respondent has filed
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proof that 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.
INDEFINITE SUSPENSION.
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