In the Matter of Benjamin Jackson Baldwin ( 2014 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Benjamin Jackson Baldwin, Respondent.
Appellate Case No. 2014-002459
Opinion No. 27471
Submitted November 20, 2014 – Filed December 23, 2014
DISBARRED
Lesley M. Coggiola, Disciplinary Counsel, and Barbara
M. Seymour, Deputy Disciplinary Counsel, both of
Columbia, for Office of Disciplinary Counsel.
Mark Weston Hardee, Esquire, of The Hardee Law Firm,
of Columbia, for Respondent.
PER CURIAM: In this attorney disciplinary matter, the Office of Disciplinary
Counsel (ODC) and respondent 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 and consents to
the imposition of a definite suspension of nine (9) months to three (3) years or
disbarment with conditions. Respondent requests the suspension or disbarment be
imposed retroactively to October 28, 2013, the date of his interim suspension. In
the Matter of Baldwin, 406 S.C. 214, 750 S.E.2d 92 (2013). We accept the
Agreement and disbar respondent from the practice of law in this state with
conditions as set forth hereafter in this opinion. The disbarment shall be imposed
retroactively to the date of respondent's interim suspension. The facts, as set forth
in the Agreement, are as follows.
Facts
Background
In November 2009, respondent was admitted to the South Carolina Bar. In June
2011, respondent became employed with Law Firm as an associate with a salary of
$24,000 per year. In August 2012, respondent's compensation structure changed to
a "commission only" arrangement in which he received 50% of the fees he
generated above a monthly amount for overhead.
Respondent worked alone in a satellite office and was permitted to accept cases
and set fees with relative autonomy. Law Firm utilized an electronic practice
management system in which respondent would create a memo for each new case
that would be transmitted to a staff member who would, in turn, create an
electronic client file. When respondent received fees from clients, he would
physically deliver those payments to Law Firm's main office, where staff would
process the deposits.
Matter I
During 2012 and 2013, respondent converted approximately $4,000.00 in client fee
payments to his own use by two methods. One method involved accepting fees
from new clients (in the form of cash or a money order or check payable to
respondent), then using those fees for personal use rather than delivering the fees
to Law Firm. Respondent covered this diversion of fees from Law Firm by
handling client cases without creating an opening memo or an electronic case file.
The other method involved accepting cash payment from Law Firm clients and
delivering part of the funds to the firm and converting the remainder to his own
use. Respondent covered this diversion of fees by altering documents to reflect a
fee of an amount less than what the client actually paid. Law Firm discovered
respondent's misappropriation, terminated his employment, and filed a disciplinary
complaint.
Matter II
In addition to reporting this matter to the Commission on Lawyer Conduct (the
Commission), Law Firm filed a police report. Respondent was arrested and
charged with breach of trust with fraudulent intent over $2,000.00 but under
$10,000.00. On July 29, 2014, respondent pled guilty to breach of trust with
fraudulent intent under $2,000.00. He was sentenced to time served and restitution
which he has paid.
Matter III
Respondent represented Client A in defense of an action brought by Client A's
mother. Client A paid respondent $1,500.00 for the representation. Respondent
delivered the funds to Law Firm and opened the electronic case file in accordance
with Law Firm policies.
Respondent prevailed in the action for Client A which resulted in a court order
requiring Client A's mother to pay Client A $500.00 in attorney's fees and $174.26
in travel expenses. On May 30, 2013, Client A's mother delivered the $674.26 to
respondent. Respondent converted those funds to his own use. On June 7, 2013,
respondent delivered a personal check in the amount of $174.26 to Client A as
reimbursement for his travel expenses. Respondent represents that, on August 6,
2013, he mailed a check to Client A for $500.00 for attorney's fees, but that check
was never cashed. Shortly after respondent's termination, Law Firm paid Client A
from its operating account. After his interim suspension, respondent delivered
$500.00 to the Receiver appointed to protect his clients' interests and those funds
were refunded to Law Firm.
Law
Respondent admits that by his conduct he has violated the following provisions of
the Rules of Professional Conduct, Rule 407, SCACR: Rule 1.15 (upon receiving
funds in which client or third person has interest, lawyer shall promptly notify
client or third person and shall promptly deliver to client or third person any funds
client or third person is entitled to receive); Rule 8.4(b) (it is professional
misconduct for lawyer to commit criminal act that adversely reflects upon lawyer's
honesty, trustworthiness, or fitness as lawyer in other respects); Rule 8.4 (d) (it is
professional misconduct for lawyer to engage in conduct involving dishonesty,
fraud, deceit or misrepresentation); and Rule 8.4(e) (it is professional misconduct
for lawyer to engage in conduct that is prejudicial to the administration of justice).
Respondent also admits he has violated the following Rules for Lawyer
Disciplinary Enforcement, Rule 413, SCACR: Rule 7(a)(1) (it shall be ground for
discipline for lawyer to violate Rules of Professional Conduct); Rule 7(a)(4) (it
shall be ground for discipline for lawyer to be convicted of a crime of moral
turpitude or a serious crime); and Rule 7(a)(5) (it shall be ground for discipline for
lawyer to engage in conduct tending to pollute the administration of justice or to
bring the courts or the legal profession into disrepute or conduct demonstrating an
unfitness to practice law) .
Conclusion
We accept the Agreement for Discipline by Consent and disbar respondent from
the practice of law in this state, retroactive to October 28, 2013, the date of his
interim suspension. In the Matter of Baldwin, supra. In addition, respondent shall
pay the costs incurred in the investigation and prosecution of this matter by ODC
and the Commission within thirty (30) days of the date of this opinion.
Respondent shall complete the South Carolina Bar's Legal Ethics and Practice
Program Ethics School, Trust Account School, and Law Office Management
School prior to filing any petition for readmission. Within fifteen (15) days of the
date of this opinion, respondent shall file an affidavit with the Clerk of Court
showing that he has complied with Rule 30 of Rule 413, SCACR, and shall also
surrender his Certificate of Admission to the Practice of Law to the Clerk of Court.
DISBARRED.
TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ.,
concur.