In the Matter of Christi Anne Misocky ( 2022 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Christi Anne Misocky, Respondent
Appellate Case No. 2021-001258
Opinion No. 28079
Submitted December 30, 2021 – Filed January 19, 2022
DISBARRED
Disciplinary Counsel John S. Nichols and Assistant
Disciplinary Counsel Julie K. Martino, both of Columbia,
for the Office of Disciplinary Counsel.
Jonathan M. Harvey, of Columbia, for Respondent.
PER CURIAM: In this attorney disciplinary matter, Respondent and the Office
of Disciplinary Counsel (ODC) have entered into an Agreement for Discipline by
Consent (Agreement) pursuant to Rule 21 of the Rules for Lawyer Disciplinary
Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court
Rules (SCACR). In the Agreement, Respondent admits misconduct, consents to
disbarment, and agrees to pay restitution and costs. We accept the Agreement and
disbar Respondent from the practice of law in this state. The facts, as set forth in
the Agreement, are as follows.
I.
Matter A
Client A hired Respondent in late 2016 to handle a child support modification
action after Client A's ex-wife filed a Rule to Show Cause. The York County
Family Court issued a temporary order in December 2016. Respondent failed to
adequately communicate with Client A about the status of the action until a hearing
was scheduled for August 7, 2017. Prior to the hearing, on August 3, 2017,
Respondent filed a Rule to Show Cause due to ex-wife's alleged failure to comply
with the temporary order. The hearing was continued and mediation was
scheduled for September 22, 2017. Respondent did not communicate with Client
A about the reason for the continuance or the mediation and failed to diligently
work on the case. Respondent and Client A signed a consent order to withdraw as
counsel for Client A on September 18, 2017. The family court signed and filed the
consent order a week later. The case was eventually dismissed pursuant to the
365-day rule.
ODC mailed Respondent a notice of investigation on September 29, 2017,
requesting a response within fifteen days. Having received no response, ODC
served Respondent with a letter pursuant to In re Treacy, 277 S.C. 514, 290 S.E.2d
240 (1982), on October 30, 2017, again requesting a response. The certified letter,
which was sent to Respondent's AIS address, was returned unclaimed. On
November 14, 2017, ODC served Respondent at her AIS address with a subpoena
requiring Respondent to provide a copy of Client A's file.
Respondent submitted a response to the notice of investigation and subpoena on
December 18, 2017. Respondent did not address Client A's allegations, instead
claiming Client A's wife filed the complaint due to a personal grudge Client A's
wife had with Respondent. In response to the subpoena for the client file,
Respondent provided only an invoice of fees charged, a copy of the motion to
withdraw as counsel for Client A, and a copy of a proposed order of continuance
dated August 3, 2017. Respondent provided an additional response on March 7,
2018, in which she denied Client A's allegations but provided no additional
documentation from the file or other evidence to support her denial.
Respondent admits her conduct in this matter violated the following Rules of
Professional Conduct, Rule 407, SCACR: Rule 1.3 (requiring diligence); Rule 1.4
(requiring adequate communication); Rule 8.1(b) (prohibiting a knowing failure to
respond to an ODC inquiry); and Rule 8.4(e) (prohibiting conduct prejudicial to the
administration of justice).
Matter B
Client B hired Respondent on December 12, 2016, to bring a foreclosure action
against a borrower. Client B made three payments totaling $5,297.50 for the
representation. Respondent filed the foreclosure action in York County on March
27, 2017. Respondent was late to the first hearing in the case, and when she did
arrive, she was not prepared. The master-in-equity continued the hearing and
rescheduled it, but Respondent failed to appear for the second hearing. Thereafter,
communications between Client B and Respondent broke down. Client B
attempted to call Respondent several times with no success. Client B also emailed
Respondent in an attempt to reach her, but Respondent did not respond. The
master-in-equity issued a notice of foreclosure sale on September 21, 2017.
Respondent submitted a revised affidavit of attorney's fees on September 27, 2017,
in which she requested $5,597.50 in fees—$300 more than Client B had already
paid Respondent.
The master-in-equity accepted the highest bid offered at the public sale on
November 6, 2017. He issued an order of sale and disbursement on November 20,
2017, along with a check in the amount of $44,611.50, payable to Respondent and
Client B. The check represented the net proceeds of the sale, including attorney's
fees and costs. On December 13, 2017, the master-in-equity issued an order for
disbursement of funds, in which he observed that Respondent and Client B had a
dispute over the amount of attorney's fees and costs and noted that the check had
not yet been negotiated. The master-in-equity ordered Respondent to deposit the
check into her trust account and to pay Client B the proceeds of the sale, plus
reimbursement to Client B of any amounts already paid to Respondent.
Respondent endorsed the check and attempted to deposit it without Client B's
endorsement. The bank refused the check, and Respondent subsequently lost the
check.
On December 28, 2017, the master-in-equity emailed Respondent, reminding her
that she should have properly endorsed the check and deposited the funds in her
trust account. The master issued a replacement check, required Respondent to pay
$30.00 to stop payment on the first check, and informed Respondent that she was
required to disburse the funds in accordance with his December 13, 2017 order.
Respondent held back the entire $5,597.50 as attorney's fees, even though Client B
had already paid her $5,297.50, and she was entitled to keep only an additional
$300. Client B filed a claim with the Lawyers' Fund for Client Protection and was
awarded $5,297.50.
ODC mailed Respondent a notice of investigation to her AIS address on November
14, 2017, requesting a response within fifteen days. Also on November 14, 2017,
ODC served Respondent at her AIS address with a subpoena requiring her to
provide a copy of Client B's file.
Respondent provided a response on December 18, 2017, that did not address the
allegations of misconduct. Instead, Respondent blamed her paralegal for
encouraging Client B to file a complaint. In response to the subpoena for the client
file, Respondent provided only one email from her paralegal to Client B, one page
of the master's order for disbursement of funds, and receipts of fee payments Client
B made to Respondent.
Respondent admits her conduct in this matter violated the following Rules of
Professional Conduct, Rule 407, SCACR: Rule 1.3 (requiring diligence); Rule 1.4
(requiring adequate communication); Rule 1.15 (requiring the safekeeping and
prompt delivery of client funds); Rule 8.1(b) (prohibiting a knowing failure to
respond to an ODC inquiry); and Rule 8.4(e) (prohibiting conduct prejudicial to the
administration of justice).
Matter C
On January 19, 2017, Respondent conducted a real estate closing on property
owned by Client C. After the closing, Client C realized the following errors in the
closing disclosure: the closing date was incorrect; the amount of closing costs, set
forth in two separate places, was listed inconsistently; an addendum stated that a
second mortgage loan was to be paid off as part of the closing, but no second
mortgage existed; and the alleged amount of the second mortgage, $906.50, was
the same amount as the "Deed Stamps for Transfer" item on the closing disclosure.
Client C and her real estate agent (Agent) attempted to contact Respondent several
times over the next two weeks to get clarification about the closing disclosure.
Respondent did not respond to calls, text messages, or emails. On February 10,
2017, Client C and Agent went to Respondent's office. Respondent met with them
but could not locate the file associated with the closing. On February 27, 2017,
Respondent emailed Client C a revised closing disclosure, explaining that last
minute changes in the terms and a software glitch caused the errors. The revised
closing disclosure corrected only some of the prior errors and contained several
additional errors. Client C sent two registered letters to Respondent requesting an
explanation of the closing disclosure, but Respondent never responded.
Respondent overcharged Client C $500 in closing costs.
On January 2, 2018, Client C filed a complaint against Respondent. ODC mailed
Respondent a notice of investigation to her AIS address on January 23, 2018,
requesting a response within fifteen days. Having received no response, ODC
served Respondent with a Treacy letter on February 12, 2018, again requesting a
response. On February 15, 2018, ODC served Respondent at her AIS address with
a subpoena requiring her to provide a copy of Client C's closing documents and
Respondent's trust account records required under Rule 417, SCACR. The
certified letter and subpoena were both returned to ODC as unclaimed.
Respondent provided a response to the notice of investigation on March 7, 2018, in
which she blamed last minute changes and a software glitch for the errors and did
not explain why she failed to correct all of the errors in the closing disclosure.
Respondent provided closing documents and some bank statements in response to
ODC's subpoena, but she failed to provide complete records as required under Rule
417, SCACR.
Respondent admits her conduct in this matter violated the following Rules of
Professional Conduct, Rule 407, SCACR: Rule 1.1 (requiring thoroughness and
preparation); Rule 8.1(b) (prohibiting a knowing failure to respond to an ODC
inquiry); and Rule 8.4(e) (prohibiting conduct prejudicial to the administration of
justice).
Matter D
On February 13, 2018, ODC received a complaint involving Respondent. ODC
investigated the allegations but was unable to obtain clear and convincing evidence
that Respondent had committed misconduct. However, Respondent failed to
respond to ODC's March 3, 2018 notice of investigation or ODC's April 25, 2018
Treacy Letter, both of which were sent to Respondent's AIS address.1 Respondent
admits her failure to respond to the notice of investigation in this matter violated
Rule 8.1(b), RPC, Rule 407, SCACR (prohibiting a knowing failure to respond to
an ODC inquiry).
1
The April 25, 2018 Treacy Letter, which was sent certified mail, was ultimately
returned to ODC as unclaimed.
Matter E
On February 15, 2019, Respondent was arrested on two counts of forgery under
state law. On March 1, 2019, this Court issued an order placing Respondent on
interim suspension. In re Misocky, 425 S.C. 614, 825 S.E.2d 48 (2019).
Respondent was subsequently indicted on numerous federal criminal charges
involving conspiracy, forgery, counterfeiting, and identity theft, and the state
charges were eventually dismissed in favor of federal prosecution.
The basis for the federal charges was that Respondent conveyed personal client
information to two other individuals who used that information to make and pass
counterfeit and forged securities in the names of the clients. These two other
individuals deposited the money from the forged securities into a designated
account from which Respondent paid them a percentage of the fraudulently
obtained proceeds. Additionally, Respondent endorsed stolen checks; attempted to
use another person's identity to facilitate a vehicle trade; possessed a fake driver's
license and social security card and attempted to use them to purchase a car;
purchased a different vehicle using a false identity; and possessed and passed two
counterfeit checks with the intent to defraud a car dealership.
On July 6, 2021, Respondent entered into a plea agreement in which she agreed to
plead guilty to a single count of conspiracy in exchange for the dismissal of the
remaining five federal charges. Her guilty plea was entered on August 2, 2021.
Respondent has not yet been sentenced.
ODC sent Respondent a notice of investigation on November 25, 2020, requesting
a response within fifteen days. This notice was sent to Respondent's AIS email
address and her AIS mailing address, along with two other email addresses and one
other mailing address Respondent had previously provided. Respondent never
responded to the notice of investigation.
Respondent admits her conduct in this matter violated the following Rules of
Professional Conduct, Rule 407, SCACR: Rule 8.1(b) (prohibiting a knowing
failure to respond to an ODC inquiry); Rule 8.4(b) (prohibiting criminal acts that
reflect adversely upon a lawyer's honesty, trustworthiness, or fitness as a lawyer);
Rule 8.4(c) (prohibiting criminal acts involving moral turpitude); and Rule 8.4(d)
(prohibiting conduct that involves dishonesty, fraud, deceit, or misrepresentation).
Matter F
Respondent is also licensed to practice law in North Carolina. In 2017, the North
Carolina Bar began an investigation based on several insufficient funds notices on
Respondent's law firm IOLTA accounts with Wells Fargo. The preliminary
investigation indicated Respondent mishandled funds. Initially, Respondent
expressed a desire to cooperate with the North Carolina Bar and entered into a
Consent Order of Preliminary Injunction on August 4, 2017, in which Respondent
was enjoined from accepting or receiving any funds against any account in which
client funds had been deposited. Respondent agreed to produce comprehensive
records of all such funds to the North Carolina Bar. Although she initially
provided some of the records requested by the North Carolina Bar, Respondent did
not provide all of the required information and stopped communicating or
cooperating with the investigation after August 2017.
On October 12, 2017, Respondent visited a branch of Bank of America in
Ballantyne, North Carolina, and opened two new checking accounts and one
savings account in her law firm's name. Thereafter, Respondent relocated her
practice to South Carolina, and she accepted and disbursed client money through
the new Bank of America accounts until February 2018. Respondent also
commingled personal funds with client funds in these accounts.
On June 7, 2021, the North Carolina State Bar Disciplinary Hearing Commission
entered an order suspending Respondent from the practice of law based on her
failure to comply with the investigation of seventeen grievances pending against
her.2 Specifically, the order found Respondent failed to provide requested records
and information, failed to fully cooperate with a subpoena for an audit, failed to
respond to several letters of notice, and failed to cooperate with the North Carolina
State Bar's effort to serve letters on her.
Respondent admits her conduct in this matter violated the following Rules of
Professional Conduct, Rule 407, SCACR: Rule 1.15(a) (prohibiting the
commingling of funds and requiring compliance with financial recordkeeping
rules); Rule 1.15(b) (prohibiting the deposit of a lawyer's own funds in a client
trust account beyond an amount necessary to pay account service charges); Rule
8.4(d) (prohibiting conduct involving dishonesty, fraud, deceit, or
2
Twelve of these grievances were filed in 2017. Four more grievances were filed
in 2018, and the remaining one was filed in 2020.
misrepresentation). 3 Respondent also admits her conduct violates the following
North Carolina Rules of Professional Conduct found in Chapter 2 of Title 27 of the
North Carolina Administrative Code: Rule 1.15-2 (requiring a lawyer to safekeep
entrusted property); Rule 1.15-3 (establishing requirements for financial
recordkeeping); Rule 8.1(b) (prohibiting a knowing failure to respond to a lawful
disciplinary inquiry); Rule 8.4(b) (prohibiting criminal acts that reflect adversely
on the lawyer's honesty, trustworthiness, or fitness as a lawyer); and Rule 8.4(c)
(prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation).
II.
Respondent admits her misconduct in the above matters constitutes grounds for
discipline under the following Rules for Lawyer Disciplinary Enforcement, Rule
413, SCACR: Rule 7(a)(1) (committing violations of the Rules of Professional
Conduct); Rule 7(a)(2) (engaging in conduct that violates rules of professional
conduct from another jurisdiction); Rule 7(a)(3) (prohibiting a willful failure to
comply with disciplinary subpoenas or a knowing failure to respond to an ODC
inquiry); Rule 7(a)(4) (being convicted of a serious crime or crime of moral
turpitude); Rule 7(a)(5) (engaging in conduct tending to pollute the administration
of justice or conduct demonstrating an unfitness to practice law); Rule 7(a)(6)
(violating the lawyer's oath found in Rule 402(h)(3), SCACR); and Rule 7(a)(7)
(willfully violating a court order issued by a court in this state or another
jurisdiction).
In the Agreement, Respondent consents to disbarment and requests that the
sanction be imposed retroactively to the date of her interim suspension. ODC does
not oppose Respondent's request for retroactivity. Respondent also agrees to pay,
within thirty days, the costs incurred in the investigation and prosecution of this
matter by ODC and the Commission on Lawyer Conduct, to reimburse Client C in
the amount of $500, and to reimburse the Lawyers' Fund for Client Protection for
any claims paid on her behalf.
3
"A lawyer admitted to practice in this jurisdiction is subject to the disciplinary
authority of this jurisdiction, regardless of where the lawyer's conduct occurs."
Rule 8.5(a), RPC, Rule 407, SCACR.
III.
We accept the Agreement and disbar Respondent from the practice of law in this
state, retroactive to March 1, 2019, which is the date of her interim suspension.
Within fifteen (15) days of the date of this opinion, Respondent shall file an
affidavit with the Clerk of Court showing that she has complied with Rule 30,
RLDE, Rule 413, SCACR, and she shall also surrender her Certificate of
Admission to the Practice of Law to the Clerk of this Court.
Within thirty (30) days of the date of this opinion, Respondent shall pay or enter
into a reasonable payment plan with the Commission on Lawyer Conduct to: (1)
pay the costs incurred in the investigation and prosecution of this matter by
Disciplinary Counsel and the Commission; (2) reimburse Client C in the amount of
$500; and (3) reimburse the Lawyers' Fund for Client Protection for any claims
paid on Respondent's behalf.
DISBARRED.
BEATTY, C.J., KITTREDGE, HEARN, FEW and JAMES, JJ., concur.