In the Matter of John Locklair ( 2016 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of John Wesley Locklair, III, Respondent.
Appellate Case No. 2016-001754
Opinion No. 27686
Submitted November 18, 2016 – Filed December 7, 2016
DISBARRED
Lesley M. Coggiola, Disciplinary Counsel, and Julie K.
Martino, Assistant Disciplinary Counsel, both of
Columbia, for Office of Disciplinary Counsel.
John Wesley Locklair, II, of Columbia, pro se.
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 and consents to
disbarment with conditions as set forth later in this opinion. He requests that
disbarment be imposed retroactively to March 6, 2015, the date of his interim
suspension. In the Matter of Locklair, 411 S.C. 627, 769 S.E.2d 675 (2015). We
accept the Agreement and disbar respondent from the practice of law in this state
retroactively to the date of his interim suspension. The facts, as set forth in the
Agreement, are as follows.
Matter I
On May 20, 2013, respondent was appointed to represent Client A who had been
charged with first degree burglary in May 2011. A jury trial was held in October
2013 and Client A was found guilty and sentenced to life without parole pursuant
to the "three strikes" law.
On November 8, 2013, respondent filed a Notice of Intent to Appeal in the South
Carolina Court of Appeals. On November 13, 2013, the Clerk of the Court of
Appeals notified respondent that his Notice of Appeal was deficient because the
sentencing sheet was not attached and the lower court case number was incorrect.
The Clerk gave respondent ten days to correct the errors. Respondent did not
respond to the Clerk's letter.
On March 6, 2014, the Chief Judge of the Court of Appeals issued an order
directing respondent to correct the errors in the Notice of Appeal within ten days or
appear before the Court of Appeals on March 20, 2014, to explain why he had not
complied. Fourteen days later, respondent submitted an Amended Notice of
Appeal to the Court of Appeals.
On July 11, 2014, the Chief Appellate Defender of the Division of Appellate
Defense wrote respondent to notify him that his office would take over
representation of Client A if respondent desired. The Chief Appellate Defender
requested respondent either send him a copy of the order of appointment or notice
that he planned to continue to pursue the appeal on behalf of Client A.
On July 20, 2014, Client A filed a complaint with ODC complaining that he did
not know the status of his appeal and his attempts to communicate with respondent
had gone unanswered. Respondent did not timely respond to the Notice of
Investigation sent by ODC on August 4, 2014, or to the reminder letter sent on
August 28, 2014. On September 30, 2014, ODC sent a subpoena to respondent
requiring him to appear for an on-the-record interview on October 23, 2014, and to
provide a copy of Client A's entire file.
On October 7, 2014, respondent faxed a letter to ODC stating he knew his response
in the matter was overdue and that he would provide a response the next day.
However, respondent did not provide a response until October 22, 2014. In the
response, he indicated he had twice sent an Affidavit of Indigency to Client A but
Client A failed to return it.1 Respondent stated he would visit Client A at the
Department of Corrections the following week to review the case with him and
ensure Client A had everything he needed from respondent's file. Respondent did
not file a signed verification with his response, he did not appear for the October
1
The Chief Appellate Defender's letter stated respondent need only submit the
completed Affidavit of Indigency on behalf of Client A if respondent had been
retained. As noted above, respondent was appointed.
24, 2014, interview, and he did not comply with the subpoena requiring he provide
Client A's file.
In the meantime, on August 1, 2014, the Court of Appeals had ordered respondent
to provide proof within ten days that he had ordered the trial transcript or that he
had responded to the Chief Appellate Defender's letter. Respondent did not
respond to the letter. On December 30, 2014, the Chief Judge of the Court of
Appeals issued an order relieving respondent from representing Client A in the
appeal, requesting the Division of Appellate Defense screen Client A's case, and
directing the Clerk of Court to forward the order to ODC. The order cited several
Rules of Professional Conduct.
On March 2, 2015, respondent emailed ODC and stated he had been involuntarily
committed for substance abuse issues. Upon petition by ODC, the Court issued an
order placing respondent on interim suspension and transferring him to incapacity
inactive status on March 6, 2015. Id.
Respondent was released from the rehabilitation facility on March 9, 2015. On
March 12, 2015, respondent telephoned ODC to state he would soon be responding
to its request for information.
On April 17, 2015, ODC issued a subpoena to respondent for financial records. To
date, respondent has not complied with this subpoena.
On September 25, 2015, respondent voluntarily submitted to an on-the-record
interview with ODC. During the interview, respondent indicated he did not
respond to the Chief Appellate Defender's letter because, at the time, he had a
serious cocaine addiction and was suffering from severe depression and bi-polar
disorder. Respondent stated he was diagnosed with these problems during his
rehabilitation stay in March 2015. He admitted he had had a serious drug problem
for several years.2
Respondent admits that, by his conduct in connection with his representation of
Client A, he violated the following provisions of the Rules of Professional
Conduct, Rule 407, SCACR: Rule 1.3 (lawyer shall act with reasonableness and
diligence in representing a client); Rule 1.4 (lawyer shall keep client reasonably
informed about status of matter and promptly comply with reasonable requests for
2
According to the Agreement, respondent is not currently in any treatment or
counseling program.
information); Rule 3.2 (lawyer shall make efforts to expedite litigation consistent
with interests of client); and Rule 8.4(e) (it is professional misconduct for lawyer
to engage in conduct prejudicial to administration of justice).
Matter II
Respondent represented Client B in an automobile accident case. Client B sought
treatment from Dr. Rodney Arnold, a chiropractor. On January 23, 2013,
respondent sent Dr. Arnold a letter of protection stating he would make direct
payment to Dr. Arnold from the proceeds received from settlement.
On August 6, 2014, Client B told Dr. Arnold that his case had settled eight months
earlier and he thought his medical bills had been paid by respondent. After several
unsuccessful attempts were made to contact respondent, Dr. Arnold filed a
complaint with ODC on August 29, 2014.
Respondent did not timely respond to the Notice of Investigation sent by ODC on
September 3, 2014. On September 30, 2014, ODC sent a subpoena to respondent
requiring him to appear for an on-the-record interview on October 23, 2014, and to
provide a copy of the client file. On October 7, 2014, respondent faxed a letter to
ODC stating he knew his response was overdue and that he would provide a
response the next day. Respondent did not provide a response until October 22,
2014, but failed to include a signed verification. He did not appear for the
scheduled interview. On December 9, 2014, respondent faxed Client B's file to
ODC.
In his response, Respondent admitted he failed to protect Dr. Arnold's interests.
He stated the settlement funds went directly to his client and not through his trust
account. Respondent requested sixty days in which to reimburse Dr. Arnold.
At an interview in September 2015, respondent admitted misconduct in this matter.
With regard to the settlement funds, respondent clarified that he deposited the
money from the settlement into his trust account then used the funds to buy
cocaine. He explained he had another case that he believed would settle for a
significant amount of money and he intended to reimburse the Client B ledger
when that happened. Respondent stated that Client B received the proceeds from
the settlement, but that he failed to pay Dr. Arnold.
Respondent admits that, by his conduct in connection with his representation of
Client B, he violated the following provisions of the Rules of Professional
Conduct, Rule 407, SCACR: Rule 1.3 (lawyer shall act with reasonableness and
diligence in representing a client); Rule 1.15 (lawyer shall hold property of third
person that is in lawyer's possession in connection with a representation separate
from lawyer's own property; lawyer shall promptly deliver to third person any
funds third person entitled to receive); Rule 4.4 (in representing client, lawyer shall
not use means that have no substantial purpose other than to burden third person);
and Rule 8.4(e) (it is professional misconduct for lawyer to engage in conduct
prejudicial to administration of justice).
Matter III
Respondent represented Client C in a breach of contract action against a defendant.
On April 18, 2013, the special referee signed an order granting judgment in favor
of Client C for $17,500 plus costs and attorney's fees. The order was filed in the
Horry County Clerk of Court's Office on May 14, 2013.
On February 4, 2014, respondent called Client C's president to relay an offer from
the defendant to settle the judgment for $15,000 to be paid within three weeks.
The president agreed to the offer.
On February 14, 2014, a Satisfaction of Judgment signed by respondent was filed
in Horry County. The satisfaction indicated the judgment had been paid. Client
C's president was not informed of the filing of the Satisfaction of Judgment and he
did not receive the settlement funds.
Several times during March of 2014, Client C's president called and emailed
respondent asking if the defendant had paid the settlement. On March 19, 2014,
respondent told the president he would have the money by the following week.
In May 2014 and for the next six months, Client C's president attempted to reach
respondent to inquire about the payment. Respondent refused to communicate
with Client C's president.
In February 2015, Client C hired another attorney ("New Attorney") to assist with
the collection of the judgment from the defendant. New Attorney discovered that
the judgment was marked satisfied and had been signed by respondent. On
February 12, 2015, New Attorney left a voicemail for respondent inquiring about
the judgment. New Attorney also contacted the defendant's attorney to find out
what he knew about the judgment.
Respondent did not return New Attorney's telephone call, but sent an email to
Client C's president on February 13, 2015. He apologized for the delay and stated
he now had the matter resolved and would get the money to him within ten to
fourteen days.
On February 16, 2015, the defendant's attorney informed New Attorney that the
defendant had paid the judgment in February 2014. The defendant's attorney
forwarded a copy of the cashier's check to New Attorney. The copy showed the
check was issued by a bank on February 7, 2014, on behalf of the defendant to
"[respondent] attorney for [Client C]." The defendant's attorney also told New
Attorney that respondent had personally picked up the check and signed for it on
February 14, 2014.
New Attorney informed Client C's president. Client C's president was shocked to
learn that respondent had received payment of $15,000 and that the judgment had
been satisfied. Respondent did not remit payment to Client C. On February 20,
2015, New Attorney filed a complaint with ODC.
Respondent did not respond to the Notice of Investigation, Notice to Appear, and
Subpoena for Client's C's file and trust account records sent by ODC on February
20, 2015. At the September 25, 2015, interview, respondent admitted the conduct
described above and stated he retained the money in his trust account and, over
time, removed the funds to purchase drugs. He further admitted he signed the
Satisfaction of Judgment and misappropriated the settlement funds.
Respondent admits that, by his conduct in connection with his representation of
Client C, he violated the following provisions of the Rules of Professional
Conduct, Rule 407, SCACR: Rule 1.4 (lawyer shall keep client reasonably
informed about status of matter and promptly comply with reasonable requests for
information); Rule 1.15 (lawyer shall hold property of client in lawyer's possession
in connection with a representation separate from lawyer's own property; upon
receiving funds which client has an interest, lawyer shall promptly notify client and
shall promptly deliver to client any funds client entitled to receive); Rule 3.3
(lawyer shall not knowingly make false statement of fact to tribunal); Rule 8.4(b)
(it is professional misconduct for lawyer to commit criminal act that reflects
adversely on lawyer's honesty, trustworthiness or fitness as lawyer in other
respects); Rule 8.4(c) (it is professional misconduct for lawyer to commit criminal
act involving moral turpitude); 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 prejudicial to administration of justice).
Matter IV
On December 1, 2014, Client D retained respondent to represent her on a DUI
charge. Client D made three payments of $200 each to respondent. When
respondent was suspended on March 6, 2015, he had not completed any work for
Client D; he did not refund any money to her.
Respondent did not respond to the Notice of Investigation dated August 6, 2015, or
to a reminder letter from ODC sent on August 31, 2015. During the September 25,
2015, interview, respondent stated he started work on Client D's file but was
suspended and did not contact Client D.
Respondent admits that, by his conduct in connection with his representation of
Client D, he violated the following provisions of the Rules of Professional
Conduct, Rule 407, SCACR: Rule 1.3 (lawyer shall act with reasonableness and
diligence in representing a client); Rule 1.16 (upon termination of representation,
lawyer shall refund fee that has not been earned); and Rule 8.4(e) (it is professional
misconduct for lawyer to engage in conduct prejudicial to administration of justice)
Matter V
Client E retained respondent for representation on drug charges stemming from his
arrest on December 19, 2014. On January 3, 2015, the mother of Client E's
children paid respondent $1,000 for the representation. She made two more
payments of $500 each, one on January 20, 2015, and the second on February 6,
2015, for a total of $2,000.
Respondent visited Client E in the detention center on one occasion. He did not
file any discovery motions and did not conduct an investigation on Client E's
behalf. Respondent did not file a notice of appearance on behalf of Client E.
When he was initially booked into the detention center, Client E filed an Affidavit
of Indigency. On February 17, 2015, a local contract public defender was
appointed to represent Client E. The public defender filed discovery motions the
same day.
Client E did not tell the public defender that he had hired and paid respondent. The
public defender did not know another attorney represented respondent. She had no
communication with respondent. The public defender negotiated a favorable plea
deal for Client E and he pled guilty on August 14, 2015.
Client E filed a complaint with ODC on December 14, 2015, alleging respondent
did not do the work he was hired to do and did not earn the fee paid to him.
Respondent did not respond to the Notice of Investigation sent on December 23,
2015.
Respondent admits that, by his conduct in connection with his representation of
Client E, he violated the following provisions of the Rules of Professional
Conduct, Rule 407, SCACR: Rule 1.3 (lawyer shall act with reasonableness and
diligence in representing a client); Rule 1.4 (lawyer shall keep client reasonably
informed about status of matter and promptly comply with reasonable requests for
information); Rule 3.2 (lawyer shall make reasonable efforts to expedite litigation
consistent with interests of client); and Rule 8.4(e) (it is professional misconduct
for lawyer to engage in conduct prejudicial to administration of justice)
Respondent further agrees that, in connection with all of the matters discussed
above, his communication and cooperation with ODC has been sporadic since the
first disciplinary matter was opened in July 2014. Respondent admits his failure to
cooperate violates the following provision of the Rules of Professional Conduct,
Rule 407, SCACR: Rule 8.1(b) (in connection with disciplinary matter, lawyer
shall not knowingly fail to respond to lawful demand for information from
disciplinary authority).
Additional Matters
During his September 25, 2015, interview, respondent admitted to three additional
matters of misconduct that were not the subject of disciplinary complaints. It is
believed that the three clients discussed below are unaware of respondent's
handling of their settlement proceeds.
Respondent represented Client F in an automobile accident case. Respondent
agreed to pay the physical therapist's bill from the settlement proceeds. The case
settled and respondent disbursed Client F's portion of the proceeds to Client F but
failed to pay Indigo Therapy Specialists for Client F's treatment. The bill totals
$3,133.92.
Respondent admits he used the money from Client F's settlement proceeds to
purchase drugs. He further admits he did not maintain an adequate client file and
did not maintain financial records as required by Rule 417, SCACR.
Respondent represented Client G in an automobile accident case. Client G
received a litigation loan from Covered Bridge Capital, LLC, as an advance on her
proceeds. Respondent admitted he was obligated to reimburse the loan from the
settlement proceeds, but he did not reimburse the loan company as he used the
money to purchase drugs.
Respondent also admits he failed to maintain an adequate file, thus, no
disbursement sheet is available and the details of the loan are unknown. In
addition, respondent failed to maintain trust account records in this matter as
required by Rule 417, SCACR.
Respondent represented Client H in an automobile accident case. After the case
settled, Client H received her proceeds and respondent maintained $5,000 in his
trust account to negotiate and pay Client H's medical bills. Respondent used the
money to buy drugs and did not pay the medical bills. Further, respondent failed to
maintain trust account records for this matter as required by Rule 417, SCACR.
Client H's file, provided to ODC by the Receiver, contains a list of medical
providers and amounts owed. Respondent failed to pay providers a total of
$4,605.49.
Respondent admits that, by his conduct in connection with the representation of
Client F, Client G, and Client H, he violated the following Rules of Professional
Conduct, Rule 407, SCACR: Rule 1.3 (lawyer shall act with reasonableness and
diligence in representing client); Rule 1.4 (lawyer shall keep client reasonably
informed about status of matter and promptly comply with reasonable requests for
information); Rule 1.15 (lawyer shall hold property of third persons in lawyer's
possession in connection with a representation separate from lawyer's own
property; upon receiving funds which third person has an interest, lawyer shall
promptly notify third person and promptly deliver to third person any funds third
person entitled to receive); Rule 4.4 (in representing client, lawyer shall not use
means that have no substantial purpose other than to burden third person); Rule
8.4(b) (it is professional misconduct for lawyer to commit criminal act that reflects
adversely on the lawyer's honesty, trustworthiness or fitness as a 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 prejudicial to
administration of justice). In addition, respondent admits he violated the
recordkeeping provisions of Rule 417, SCACR.
Finally, in addition to his admitted violations of the Rules of Professional Conduct
specifically referenced in each matter discussed above, respondent agrees that his
misconduct constitutes grounds for discipline pursuant to the following provisions
of the 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)(3) (it shall be ground for discipline for lawyer to knowingly
fail to respond to lawyer demand from disciplinary counsel); Rule 7(a)(5) (it shall
be ground for discipline for lawyer to engage in conduct tending to pollute
administration of justice or to bring courts or legal professions into disrepute and
demonstrating unfitness to practice law); Rule 7(a)(6) (it shall be ground for
discipline for lawyer to violate Oath of Office taken upon admission to practice
law in South Carolina); and Rule 7(a)(7) (it shall be ground for discipline for
lawyer to willfully violate valid court order).
Conclusion
We accept the Agreement for Discipline by Consent and disbar respondent from
the practice of law in this state, retroactively to March 6, 2015, the date of his
interim suspension. Id. Within thirty (30) days of the date of this opinion,
respondent shall enter into a payment plan with the Commission on Lawyer
Conduct (the Commission) to pay the costs incurred in the investigation and
prosecution of this matter by ODC and the Commission. Further, within thirty (30)
days of the date of this opinion, respondent shall enter into a payment plan to pay
restitution as follows:
1. $2,736.00 to Dr. Rodney Arnold;
2. $15,000.00 to the President of Client C;
3. $600.00 to Client D;
4. $2,000 to the individual who paid fees on behalf of Client E;
5. $3,133.92 to Indigo Therapy Specialists;
6. $2,519.59 to Covered Bridge Capital, LLC;
7. a total of $4,605.49 to medical providers on behalf of Client H as
specified in Exhibit 1 to the Addendum to Agreement; and
8. respondent shall fully reimburse the Lawyers' Fund for Client Protection
for any and all amounts paid on his behalf.
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.
PLEICONES, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur. FEW,
J., not participating.