In the Matter of Mark Andrew Brunty , 411 S.C. 434 ( 2015 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Mark Andrew Brunty, Respondent.
Appellate Case No. 2014-001840
Opinion No. 27503
Heard January 13, 2015 – Filed February 25, 2015
DISBARRED
Lesley M. Coggiola, Disciplinary Counsel, and Sabrina
C. Todd, Assistant Disciplinary Counsel, both of
Columbia, for Office of Disciplinary Counsel.
Mark Andrew Brunty, of Edgefield, Pro se Respondent.
PER CURIAM: Respondent failed to answer or appear in this attorney
disciplinary matter and was held in default.1 Following a hearing, the Panel
recommended respondent be disbarred. We agree, disbar respondent, and order
him to pay the costs of this disciplinary proceeding,2 to make restitution to the
clients identified in the attached appendix, to repay the Lawyers Fund for Client
Protection for any payments made on respondent's behalf, and to complete the
Legal Ethics and Practice Program, Ethics School, Trust Account School, and
Advertising School prior to seeking readmission to the South Carolina Bar.
1
Respondent is presently serving a forty-six month federal sentence following his
plea to conspiracy to commit wire fraud. In addition to his active sentence,
respondent was ordered to pay $1,575,600 in restitution and placed on three years
supervised release following his incarceration.
2
$1,891.32.
PROCEDURAL HISTORY
Formal Charges were personally served on respondent on March 24, 2014. When
he failed to answer, the Panel entered an order of default. By virtue of his default,
respondent is deemed to have admitted the factual allegations made in the Formal
Charges. Rule 24(a), Rules of Lawyer Disciplinary Enforcement (RLDE), Rule
413, SCACR. The Panel sent a copy of the order of default and an order to appear
by certified mail and by first class mail to respondent at three addresses. The
certified mail to all three addresses was returned, as were two of the three first
class mailings. The Panel held a hearing on the Formal Charges on August 15,
2014. Respondent did not appear at that hearing. The Panel issued a report
reciting the admitted facts, finding respondent violated seven subsections of Rule
7(a), RLDE, Rule 413, and that aggravating circumstances existed. The Panel
recommended that respondent be disbarred with conditions. Neither the Office of
Disciplinary Counsel (ODC) nor respondent has filed exceptions to this report.
Since respondent is in default, the sole question before the Court is the appropriate
sanction. In re Berger, 408 S.C. 313, 759 S.E.2d 716 (2014). In determining the
appropriate sanction, we take into consideration both respondent's failure to answer
the Formal Charges, and his failure to appear at the August 2014 Panel hearing. In
re Hall, 333 S.C. 247, 509 S.E.2d 266 (1998).
FACTS/FINDINGS
The factual allegations, admitted by respondent, and the accompanying rules
violations found by the Panel, are as follows:
A. Matter 11-DE-L-380
Respondent represented a husband and wife in several legal matters related to the
couple's business. During the course of representation, respondent engaged in a
sexual relationship with the wife, in violation of the then current version of Rule
1.7(b), Rules of Professional Conduct (RPC), Rule 407, SCACR. Further, during
the investigation of this matter, respondent testified under oath that he had not had
sexual relations with any other client, client's spouse, or client's employee. This
testimony was false as respondent was then engaged in a sexual relationship with
the client who is the complainant in Matter 12-DE-L-1459, Item C infra.
Respondent's conduct in this matter violated Rules 1.7(b), 8.1(a), 8.4(d), and
8.4(e), RPC, Rule 407.
B. Matter 12-DE-L-0346
Respondent represented the client property owner's association in a construction
defect suit. Without the association's knowledge, respondent used a forged
agreement to sell a portion of the association's interest in the suit to Incline Energy,
LLC (IE) in exchange for $100,000 to fund the litigation. Respondent executed a
separate document agreeing to hold the $100,000 in his trust account and to
disburse it only for litigation purposes. In fact, he had the funds wired to his
operating account and used it for his own purposes.
IE notified two attorneys involved in the construction defect litigation of the
agreement, and respondent repaid IE in two transactions. When questioned by
ODC, respondent made numerous misrepresentations, including that he repaid IE
from his personal investment accounts. Respondent presented altered documents
from a closed investment account to ODC to support his claim. In fact, the money
came from two clients who were ultimately repaid with funds respondent
misappropriated from others. ODC subpoenaed respondent's trust account records,
and in response respondent provided some photocopied bank statements from
Conway National Bank (CNB) and a few incomprehensible ledgers. He failed to
inform ODC of accounts at South Carolina Bank & Trust (SCB&T).
ODC compared statements obtained from CNB with those provided by respondent.
Among other issues, the examination revealed altered pages, memo lines, and wire
amounts; that overdraft fees had been obscured; that NSF items had not been
reported to ODC; and that non-client payees and personal expenses had been paid
both by checks and debits out of this trust account. While respondent attended one
interview with ODC, he ceased cooperating after the altered bank records were
discovered.
Respondent's conduct in this matter violated Rules 1.15, 8.1(a), 8.1(b), 8.4(b),
8.4(c), 8.4(d), and Rule 8.4(e), RPC, and Rule 417, SCACR.
C. Matter 12-DE-L-1459
Complainant hired respondent to bring a mortgage fraud suit against a lender, and
paid him $15,000 towards his $25,000 fee. They subsequently developed a sexual
relationship, and respondent told the complainant she need not pay the fee balance.
Respondent failed to pursue the fraud case in any meaningful way.
Complainant also gave respondent $22,000, and he agreed to manage an inactive
business for her. Approximately $5,000 was used for legitimate business
expenses, but respondent has refused to either return the remaining funds or
provide complainant with an accounting.
Respondent violated Rules 1.3, 1.4, 1.5, 1.7, 1.8(m), 1.15, 1.16, 7.1, 8.1(b), 8.4(b),
8.4(c), 8.4(d), and 8.4(e), RPC, Rule 407, in his handling of this matter.
D. Matter 12-DE-L-1470
Respondent, or someone acting on his behalf, contacted complainant and informed
him his mortgage lender had violated several regulations and therefore
complainant's mortgage could be adjusted. This telephone call was an
impermissible direct solicitation. Following an in-person meeting, respondent
accepted $5,000 to represent complainant in seeking a mortgage reduction,
promising a full refund if he were unsuccessful and a half refund if he were
successful.
Respondent did not pursue relief on behalf of complainant, but falsely represented
the situation when complainant sought updates. Following respondent's interim
suspension, complainant contacted respondent who assured him his case was
progressing well, and that another attorney would complete the case. Complainant
asked for a refund, but has received no further communication from respondent.
Respondent did not cooperate with ODC in this matter.
Respondent's conduct in this matter violated Rules 1.3, 1.4, 1.5, 1.16(d), 3.2,
7.3(a), 8.1(b), and 8.4(d), RPC, Rule 407.
E. Matter 12-DE-L-1492
Respondent impermissibly solicited mortgage-related business from complainant's
daughter. When complainant contacted respondent, complainant was told he
would receive title to his property and a refund of all his mortgage payments.
Complainant paid respondent $5,000. Respondent performed no work on
complainant's behalf, but misrepresented that the case was "about finished."
Respondent was suspended shortly thereafter, and did not cooperate in ODC's
investigation.
Respondent violated Rules 1.3, 1.4, 1.5, 1.16(d), 3.2, 7.1, 7.3, 8.1(b), 8.4(d), and
8.4(e), RPC, Rule 407, in this matter.
F. Matter 12-DE-L-1602
Respondent agreed to negotiate two condominium short sales for complainant.
Respondent asked for and received $20,000 to use in negotiating with one of the
lenders, but did not safeguard that money, and did not return it to complainant who
was dissatisfied with the lack of progress. Both condominiums are subject to
foreclosure actions and complainant faces deficiency payments. Respondent did
not cooperate with ODC in this investigation.
Respondent violated Rule 1.3, 1.15, 1.16, 8.1(b), 8.4(d), and 8.4(e), RPC, Rule
407, in this matter.
G. Matter 12-DE-L-1644
Complainant and her husband hired respondent to deed back two timeshares.
Respondent negotiated the couple's checks, but did not deliver or record the new
timeshare deeds. As a result of respondent's inaction, complainant and her
husband incurred additional timeshare fees. Respondent avoided complainant
except for one phone call where he agreed to discuss a possible meeting, a meeting
that never took place. Respondent did not cooperate with ODC in the investigation
of this matter.
By his conduct here, respondent violated Rules 1.3, 1.4, 1.6, 5.5, 8.1(b), and 8.4(e),
RPC, Rule 407.
H. Matter 13-DE-L-0006
Complainant hired respondent for $2,000 to bring suit on complainant's behalf.
Respondent failed to work diligently and to communicate adequately with the
complainant. Respondent represented to complainant that the suit had been filed
and induced complainant to spend thousands of dollars on the nonexistent
litigation. Upon his suspension, respondent did not return the unearned fees to
complainant, and did not surrender complainant's file to complainant or to the
individual appointed as the Attorney to Protect Client's Interests (ATP).
Respondent did not cooperate in ODC's investigation.
Complainant filed a fee dispute and was awarded $2,000 by the Resolution of Fee
Disputes Board. Respondent did not pay this award.
Respondent's conduct in this matter violated Rules 1.2, 1.3, 1.4, 1.5, 1.16(d),
8.1(b), 8.4(d), and 8.4(e), RPC, Rule 407 and the Lawyer's Oath, Rule 402(k)(3),
SCACR.
I. Matter 13-DE-L-0007
Complainants hired respondent to assist in the sale of their business to investors.
In connection with the sale, respondent was entrusted with $210,000 from the
investors to be used to pay the business's debts and federal tax liability of $25,000.
Respondent disbursed funds to settle the debts and assured complainants that the
remaining funds were sufficient to satisfy the tax liability. Complainant received a
number of IRS notices, and was told by respondent that he was working with the
IRS. He eventually told complainants the federal tax liability could be settled for
$15,000. In fact, respondent never made any effort to settle or pay the tax debt,
and by the time respondent was placed on interim suspension, the tax liability had
increased to $40,854.18. Respondent had no funds in trust for complainants, and
did not cooperate with ODC's investigation.
By his conduct in this matter, respondent violated Rules 1.3, 1.15, 8.1(b), 8.4(d),
and 8.4(e), RPC, Rule 407 and the Attorneys Oath, Rule 402(k)(3), SCACR.
J. Matter 13-DE-L-0061
Complainant hired respondent to assist in litigation, and eventually instructed
respondent to accept a settlement offer which would result in complainant's receipt
of almost $54,000. Respondent rejected the offer, and did not inform complainant
that his case was going to trial. At that trial, respondent represented that
complainant chose not to be present. He presented no evidence and did not
challenge the opposing party's evidence. Although the record was held open to
allow respondent to brief a legal issue, no brief was ever submitted. Complainant's
claim was unsuccessful.
Following respondent's interim suspension, complainant hired a different attorney
to pursue the settlement offer. This attorney discovered that respondent had taken
the claim to trial and lost. As a result, complainant received nothing. Respondent
did not cooperate in the investigation of this matter.
Respondent's conduct in this matter violated Rules 1.1, 1.2, 1.3, 1.4, 3.3, 8.1(b),
8.4(d), and 8.4(e), RPC, Rule 407.
K. Matter 13-DE-L-0075
Respondent and a business partner convinced complainants to invest in a scheme
to purchase distressed promissory notes and real property which would be sold
quickly for a significant property. The complainants were to receive 80% of the
profits from each transaction while respondent and the associate were to receive
20%. After what they believed to be a successful first transaction, the
complainants were persuaded to invest $600,000 for a distressed note that
respondent represented could be resold quickly for a $150,000 profit, and to invest
$100,000 to purchase two real estate parcels. Respondent presented forged,
fabricated documents to complainants to demonstrate his authority to make these
purchases, and complainants sent respondent $700,000 in four transactions.
Respondent misappropriated the funds.
Following respondent's interim suspension, respondent showed the complainants
fraudulent bank records purporting to show that $600,000 was held in an account.
The complainants sued respondent, his business associate, and a corporate entity,
and respondent was held in default. He did not cooperate with ODC in this matter.
Respondent was indicted by the federal government on four counts of mail fraud, a
violation of 18 U.S.C. § 1343, for his conduct in this matter. Respondent
subsequently pled guilty to one count of conspiracy to commit wire fraud.
Respondent's conduct in this matter violated Rules 1.8, 1.15, 1.16, 8.1(b), 8.4(b),
8.4(c), 8.4(d), and 8.4(e), RPC, Rule 407.
L. Matter 13-DE-L-0080
Complainant, a Florida attorney, introduced respondent to the complainants in
Matter 13-DE-L-0075, Item K supra. Complainant decided to invest with
respondent, and obtained the promised return on his first investment with
respondent. He later wired respondent $50,000 for a second investment. The
second investment never took place, and respondent did not safeguard
complainant's money. Further, respondent did not cooperate in ODC's
investigation.
In this matter, respondent's conduct violated Rules 8.1(b), 8.4(b), 8.4(c), 8.4(d),
and 8.4(e), RPC, Rule 407.
M. Matter 13-DE-L-0096
Respondent's representation of client over the span of two years was neither
competent nor diligent, and the lack of diligence caused client financial harm.
Respondent also misled client, and following respondent's suspension, two forged
promissory notes were found in client's file, one representing client's alleged
$50,000 debt to respondent and the other his alleged $50,000 debt to a third person.
Respondent failed to cooperate with ODC's investigation.
By his conduct in this matter, respondent violated Rules 1.1, 1.3, 1.4, 8.1(b),
8.4(b), 8.4(c), 8.4(d), and 8.4(e), RPC, Rule 407.
N. Matter 13-DE-L-0326
Claimant was employed by respondent. After he left respondent's employ, his
notary signature was forged on litigation loan documents by which a client was
lent $10,000. The client, whose signature was also forged, was unaware of the
loan and received none of the proceeds, but ultimately paid the loan company
$13,000 to avoid costly litigation. Respondent did not cooperate in the
investigation of this matter.
By his conduct in this matter, respondent violated Rules 8.1(b), 8.4(b), 8.4(c),
8.4(d), and 8.4(e), RPC, Rule 407.
O. Matter 13-DE-L-0817
Client lent respondent $500,000 as a real estate investment in exchange for certain
benefits. After the loan was made, client learned that respondent had presented
him with forged and fabricated documents, and that respondent lacked the
authority to fulfill certain of the promised benefits. Respondent repaid client only
$90,000, and misrepresented the source of those funds. Respondent did not
cooperate in ODC's investigation.
Respondent's conduct in this matter violated Rules 8.1(b), 8.4(b), 8.4(c), 8.4(d),
and 8.4(e), RPC, Rule 407.
P. Matter 13-DE-L-1046
Respondent retained an unearned $500 payment. He did not cooperate in this
investigation.
Respondent violated Rules 1.16(d) and 8.1(b), RPC, Rule 407, in this matter.
Q. Out-of-State Loan Modification Matters
Respondent employed marketing companies to solicit out-of-state clients interested
in home loan modifications or foreclosure avoidance. Respondent, who was
licensed only in South Carolina, failed to oversee the actions of these marketing
companies, and employed a third party to process the loan modifications. Upon
respondent's interim suspension, this third party began working with a different
South Carolina law firm. Neither respondent nor this third party notified the loan
modification clients of respondent's suspension, did not seek their consent to work
with the new firm, and shared confidential client information with that firm.
Eventually the third party mailed a cryptic unsigned letter to respondent's out-of-
state clients notifying them of respondent's suspension and giving them the ATP's
contact information. The third party surrendered many, but not all, of respondent's
loan modification client files to the ATP. Respondent did not cooperate in the
investigation of these matters.
Respondent's conduct constituted the unauthorized practice of law in many of these
foreign jurisdictions. This is a violation of Rule 5.5, RPC, Rule 407.
The applicable rules of professional conduct are those of the jurisdictions where
the clients and homes are located. Rule 8.5, RPC, Rule 407. For this reason, the
individual client matters are grouped by jurisdiction.
1. Arkansas, Matter 13-DE-L-0337
A couple paid respondent $2,900 to assist in obtaining a modification of
their already modified home loan. They did not receive adequate
communications and could not obtain a status update.
Respondent's conduct in this matter violated the following Arkansas Rules
of Professional Conduct: 1.3, 1.4, 1.5, 1.16(d), and 8.1(b).
2. California, Matters 13-DE-L-1201, 13-DE-L-0135, 13-DE-L-0210,
and 13-DE-L-0050
Client A paid $2,900 upfront for help with a loan modification matter.
Client B paid $2,800 despite being eligible for free services and was
eventually told to send the lender her documents directly. Client Couple C
paid $2,900 and were informed the foreclosure on their home had been
stopped. They subsequently learned the home had been sold at foreclosure.
Client Couple D paid $2,900, but received neither diligent service nor
adequate communications.
Respondent's conduct constituted the unauthorized practice of law in
violation of § 6125 of the California Business and Professional Code, and
Rule 1-300 of the California Rules of Professional Conduct. By charging
and collecting an upfront fee, respondent violated California Civil Code §
2944.7. In addition, respondent's conduct violated these California Rules of
Professional Conduct: 1-400, 3-110, 3-500, 3-700, 4-100, and 4-200.
3. Colorado, Matter 13-DE-L-0162
Client was told respondent could assist her only if she stopped paying her
mortgage and instead paid respondent $2,900. After receiving client's
payment, respondent did not work diligently on her behalf or do anything to
assist in client's loan modification. When client called respondent's law firm
directly for a status update, she received a voicemail response from
respondent's employee directing her not to call his office. Following
respondent's interim suspension, the third party contacted client to inform
her that respondent's firm was out of business. Client lost her home in
foreclosure.
Respondent's conduct in this matter violated the following Colorado Rules
of Professional Conduct: 1.3, 1.4, 1.5, 1.15, 1.16(d), 5.3, and 8.1(b).
4. Connecticut, Matters 13-DE-L-0244, 13-DE-L-0992, and 13-DE-L-
0563
Client Couple A paid respondent $2,900 to help them with their mortgage.
They received confusing and conflicting emails from three different
processors who identified themselves as employees of respondent's firm.
Respondent did not diligently work to obtain a modification or otherwise
earn the fee collected. After respondent was placed on interim suspension,
one of the three processors emailed clients and said their file had been
submitted to their lender. Later, clients were advised that respondent had
transferred their file to another firm. Clients gave the successor firm
permission to negotiate on their behalf, but did not receive satisfactory
service. Clients later learned respondent had been suspended.
Client B paid respondent $2,900 to help her obtain a loan modification.
Respondent did not provide Client B with diligent representation or adequate
communication. The loan processors she thought were firm employees often
provided her with conflicting information about the status of her matter.
After respondent's interim suspension, the loan processors continued to tell
her they were working on her file, but indicated they were with a successor
law firm. When she refused to pay additional fees to the successor firm, any
work being performed on her file ceased.
Client C hired respondent's firm to help her obtain a loan modification. She
paid the firm $2,400 after a non-lawyer salesperson gave her legal advice
and told her respondent's firm was very experienced. Sometimes she could
not receive any response from her firm contacts, and at other times she
received inconsistent and/or false information. Client C did not receive any
discernable service from respondent or his firm and ultimately obtained a
loan modification on her own.
Respondent's conduct in these matters violated the following portions of the
Connecticut Rules of Professional Conduct: 1.1, 1.3, 1.4, 1.5, 1.6, 1.15,
1.16(d), 5.3, 7.1, 8.1(2), and 8.4(d).
5. Florida, Matter 12-DE-L-1419
Client responded to an internet advertisement and was contacted by a
salesperson associated with respondent's firm. Client paid the firm $2,900,
but did not receive the promised modification. Client communicated only
with employees of the marketing company and the loan modification
processing companies. Respondent did nothing on client's behalf.
Under Florida law, it is generally impermissible to charge or collect a fee for
foreclosure prevention services prior to completion of all of the services.
Florida Statutes § 501.1377. Respondent did not fall within any exception to
that general rule. Florida Statutes § 501.212; § 501.1377. Respondent's
collection of an up-front fee violated Rule 4-1.5 of the Florida Rules of
Professional Conduct, and he also violated Rules 4-1.3, 4-1.4, 4-5.3, 4-7.13,
and 4-8.1(b).
6. Georgia, Matter 13-DE-L-0273
Client hired respondent after a salesperson guaranteed a loan modification
and convinced client to sell his truck to pay the $2,900 fee. No progress was
made on Client's file, and respondent failed to notify him of his suspension.
Respondent's conduct in this matter violated the following portions of the
Georgia Rules of Professional Conduct: 1.3, 1.4, 1.5, 5.3, 1.16(d), 7.1, and
8.1(b).
7. Idaho, Matter 13-DE-L-0256
Client hired respondent to help him obtain a loan modification and agreed to
pay half of the $2,900 fee up front and the second half after his loan was
modified. However, client's credit card was charged with both payments
before any work was completed. Respondent did not provide client with
adequate communication or diligent representation.
Respondent's conduct in this matter violated Rules 1.3, 1.4, 1.5, 1.15,
1.16(d), 5.3, 8.1(b), and 8.4 of the Idaho Rules of Professional Conduct.
8. Illinois, Matters 13-DE-L-0051 and 13-DE-L-0053
Client A hired respondent after a salesperson convinced him his home could
be saved from foreclosure and his mortgage debt reduced. Client was
specifically told the firm could practice law in his home state of Illinois as
well as Oklahoma, where his lender was located. He was instructed to stop
paying his mortgage and to use that money to pay respondent $2,900. After
several months, client requested a refund. By this point in time, respondent
was on interim suspension. Client did not receive a refund and his file was
not surrendered to the ATP.
Client Couple B paid respondent's firm $2,900 for loan modification
assistance. A non-lawyer associated with the firm instructed the couple not
to make further mortgage payments. Respondent failed to provide
competent or diligent service and failed to adequately communicate. After
respondent was placed on interim suspension, non-lawyers associated with
respondent shared clients' confidential information with another South
Carolina law firm without the couple's consent.
Respondent's conduct in these matters violated Rule 5.5 of the Illinois Rules
of Professional Conduct, which prohibits lawyers from assisting another
person in the unauthorized practice of law and prohibits lawyers not
admitted in Illinois from holding themselves out as admitted in the
jurisdiction. Respondent's conduct also violated the following additional
portions of the Illinois Rules of Professional Conduct: 1.3, 1.4, 1.5, 1.6,
1.16(d), 5.3, 7.1, 8.1(b), and 8.4.
9. Kentucky, Matters 13-DE-L-0008 and 13-DE-L-0034
Client A agreed to pay respondent $2,900 after a salesperson called
respondent a loan modification specialist and made unrealistic promises.
Client A did not receive adequate communication and when she was
updated, she was given false information about the status of her loan
modification. Respondent did not provide her with diligent service or the
level of service she had been promised. For example, client was promised
the firm would have a court-ordered mediation cancelled, but when it was
not cancelled, she had to attend alone. Neither respondent nor the non-
lawyers associated with his firm timely informed client of his interim
suspension. The third party charged Client A's final $725 credit card
payment to a different firm without her knowledge or consent. Client A
attended a foreclosure hearing by herself. When the third party surrendered
Client A's file, it contained no evidence of work performed on her behalf.
Client Couple B were persuaded to hire respondent's firm after a salesperson
promised them the attorney fee would be held in trust and that their
mortgage payment would be reduced. They were advised to stop making
payments as the firm tried to negotiate a modification. After Client Couple
B paid the $2,900 attorney's fee, communication ceased. Respondent did not
diligently work on the couple's matter and did not surrender their file upon
his suspension.
Respondent's conduct in these matters violated the following portions of the
Kentucky Supreme Court Rules 3.130: -1.3, -1.4, -1.5, -1.6, -1.16(d), -5.3, -
7.15, -8.1, and -8.4.
10. Maine, Matter 13-DE-L-0226
Client and his wife paid respondent's firm $3,500 to help lower their
mortgage payments. They completed several packets of forms the firm
provided, but none were submitted to the lienholders. They learned the firm
was closed more than a month after respondent's suspension.
Respondent's conduct in this matter violated the following portions of the
Maine Rules of Professional Conduct: 1.3, 1.5, 1.16(d), 5.3, and 8.1(b).
11. New Hampshire, Matter 13-DE-L-0152
Client paid respondent's firm $3,495 following a high-pressure sales pitch.
Client experienced difficulty reaching anyone and never had a consistent
firm contact. He never received the services or results he was promised.
Respondent's conduct in this matter violated the following portions of the
New Hampshire Rules of Professional Conduct: 1.3, 1.4, 1.16(d), 5.3, and
8.1(b).
12. New Jersey, Matter 13-DE-L-1028
Client hired respondent to help him with a loan modification and made one
payment of $967 prior to respondent's suspension. Respondent had not
earned the fee and did not issue client a refund.
Respondent's conduct in this matter violated the following portions of the
New Jersey Rules of Professional Conduct: 1.16(d) and 8.1(b).
13. Nevada, Matter 13-DE-L-0052
Clients paid respondent $2,900 to help them with a loan modification after a
non-lawyer salesperson gave them false and misleading information about
respondent and his firm. Respondent did not provide diligent representation
or adequate communication.
Respondent's conduct in this matter violated the following portions of the
Nevada Rules of Professional Conduct: 1.3, 1.4, 1.5, 1.16(d), 5.3, 7.1, 8.1(b),
and 8.4(c).
14. New York, Matter 13-DE-L-0566
Client paid respondent $2,900 after a salesperson promised her specific
results. Respondent did not diligently represent client and did not
adequately communicate with her. He did not earn the fee and failed to
surrender the unearned fee or client's file upon his suspension.
By collecting money to represent client in this matter, respondent engaged in
the practice of law in violation of Section 484 of the New York Judiciary
Law and Rule 5.5 of the New York Rules of Professional Conduct.
Respondent's conduct also violated the following portions of the New York
Rules of Professional Conduct: 1.3, 1.4, 1.5, 1.15, 1.16(e), 5.3, and 8.4(c).
15. North Carolina, Matter 13-DE-L-0227
Clients paid respondent $2,495 to help them obtain a loan modification.
By offering to provide loan modification services in North Carolina,
respondent engaged in the unauthorized practice of law in violation of N.C.
Gen. Stat. § 84-4 and Rule 5.5 of the North Carolina Rules of Professional
Conduct. Further, because he was not licensed to practice law in North
Carolina and accepted an upfront fee, respondent violated N.C. Gen. Stat. §
14-424. Respondent's conduct also violated the following portions of the
North Carolina Rules of Professional Conduct: 1.3, 1.4, 1.16(d), 5.3, and
8.1(b).
16. Pennsylvania, Matters 13-DE-L-0182, 13-DE-L-0475, 13-DE-L-
0081, and 13-DE-L-0211
Client A paid respondent $2,900 to help her obtain a lower mortgage
payment. Respondent did not diligently represent her or provide her with
adequate communication. After respondent's suspension, information from
her file was shared with individuals associated with another South Carolina
law firm without her consent.
Client B tried to obtain a loan modification under the Making Home
Affordable Modification Program, but she was ineligible. She then
communicated with a salesperson associated with respondent, who assured
her that she was eligible for the program and that her lender was misleading
her. After the salesperson made this claim and made other promises, client
hired the firm and paid respondent $2,900. Respondent did not diligently
represent client or adequately communicate with her. After respondent's
suspension, information from her file was shared with individuals associated
with another South Carolina law firm which solicited her business by email
and phone.
Client Couple C paid respondent $3,000 to help them obtain a loan
modification. After paying the fee and submitting the paperwork, the couple
received no communication and no progress was made.
A foreclosure sale was already scheduled on Client D's home. He received
numerous phone calls from salespeople associated with respondent's firm,
who falsely reported that the firm had Pennsylvania bar members on staff.
Client hired respondent and paid $2,000. When Client D received the fee
agreement, he noticed the terms and conditions were different from those the
salesperson described. Client requested a refund, but did not receive one.
Respondent's conduct in these matters violated the following portions of the
Pennsylvania Rules of Professional Conduct: 1.3, 1.4, 1.5, 1.6, 1.16(d), 5.3,
7.1, 8.1(b), and 8.4(c).
17. Tennessee, Matters 13-DE-L-0297, 13-DE-L-0049, and 13-DE-L-
0183
Client A paid respondent $2,200 to help him with his home loan. After
receiving no services, he sought a refund but received no response.
Client B paid respondent $2,900 to help her with a loan modification after a
salesperson identified herself as a firm employee and gave her false and
misleading information about the firm. Respondent performed no work on
client's behalf and never contacted her lender.
Client Couple C paid respondent $2,800 to help them obtain a loan
modification after their own attempts were unsuccessful. They were
repeatedly asked to submit documents they had already submitted and
experienced a lack of responsiveness from firm contacts.
Respondent's conduct in these matters violated the following portions of the
Tennessee Rules of Professional Conduct: 1.3, 1.4, 1.5, 1.16(d), 5.3, 7.1,
8.1(b), 8.4(a), and 8.4(c).
18. Texas, Matters 13-DE-L-0054, 13-DE-L-1156, 13-DE-L-0215, and
13-DE-L-0062
Client A paid respondent $1,300 after a salesperson promised him the firm
could obtain specific loan modification terms for him. Client submitted the
requested paperwork, but it was returned to him with instructions to mail it
to his lender. He then received a phone call advising him that he would have
to pursue the matter on his own. Client's phone calls and emails to the firm
went unanswered. After filing a complaint with the Better Business Bureau,
client received a call from the firm offering to represent him for an
additional payment of $1,600. The caller guaranteed favorable results, while
noting that such a guarantee is illegal. Client made the additional payment
and again communication ceased.
Client Couple B hired respondent to help them obtain a loan modification.
They were advised by their non-lawyer firm contact to stop paying their
mortgage even after their income increased significantly. Shortly after
clients paid the entire $2,900 fee, their firm contacts stopped communicating
with them. Thereafter, the lender assessed a large amount of fees for late
payments and began foreclosure proceedings.
Client Couple C paid $2,900 after receiving legal advice and misleading
information from a firm salesperson. They were unable to speak with
respondent. They were told their modification had been worked out but
never received any paperwork.
Client D hired respondent to help her obtain a loan modification, agreeing to
pay the firm's $2,900 fee in four $750 [sic] installments. Shortly after her
first payment to respondent, client's lender offered to modify her loan if she
made certain payments over three months. She forwarded the lender's offer
to her firm contact, but was instructed not to make payments or acknowledge
the offer as the firm could negotiate a better interest rate. Respondent was
then suspended, and her firm contact told Client D to make the payments the
lender offered. Her file and personal information were then shared with
another firm without her knowledge or consent.
Respondent's conduct in these matters violated the following portions of the
Texas Rules of Professional Conduct: 1.01, 1.04, 1.05, 1.15, 5.03, 5.05,
7.02, 8.01(b), and 8.04(a)(3).
19. Virginia, Matter 13-DE-L-1191
Client hired respondent after a salesperson emailed her false and misleading
information about respondent and his services. After paying $2,900 and
repeatedly submitting paperwork, client questioned the firm's conduct. The
firm contacts stopped communicating with her.
Respondent's conduct in this matter violated Virginia Rules of Professional
Conduct: 1.3, 1.4, 1.5, 1.16(d), 5.3, 7.1, 8.1(c), and 8.4(c).
20. Washington, Matters 13-DE-L-0413, 13-DE-L-0314, 13-DE-L-0370,
and 13-DE-L-0433
Client A paid respondent $2,900 but did not receive the services she was
promised. Respondent did not surrender her file upon his suspension, but
the loan modification processing company forwarded the electronic file they
maintained to the ATP.
Client B paid respondent $2,900 after a salesperson's statements gave him an
unreasonable expectation of what the firm could accomplish for him. Client
stopped making mortgage payments per his firm contact's instructions.
Respondent was suspended approximately one week after client's final
payment, and did not provide any meaningful representation. After
respondent's suspension, confidential information from client's file was
shared with another law firm without client's knowledge or consent.
A salesperson gave Client C misleading information about the services
respondent could provide and persuaded her to divert funds earmarked for
her mortgage payments to pay the firm. Soon after she paid the $2,900 fee,
all communication with the firm ceased. Respondent provided no
meaningful representation to client and she lost her home in foreclosure.
Client Couple D decided against hiring respondent's firm, but relented after
the salesperson continued calling them and would not take no for an answer.
They paid $1,000 toward the fee before signing a fee agreement. They then
changed their minds and requested a refund, but did not receive one.
Respondent's conduct violated the following portions of the Washington
State Rules of Professional Conduct: 1.3, 1.4, 1.5, 1.6, 1.16(d), 5.3, 7.1,
8.1(b), and 8.4(c).
SANCTION
The authority to discipline lawyers and the manner in which discipline is imposed
is a matter within the Court's discretion. In re Jardine, 410 S.C. 369, 764 S.E.2d
924 (2014) (internal citation omitted). When the lawyer is in default, the sole
question before the Court is that of the appropriate sanction. Id. In determining
the sanction, the Court will consider the respondent's failure to cooperate with
ODC's investigation, his false statements to ODC, and his failure to appear at the
disciplinary hearing. Id.
The magnitude of respondent's misconduct mandates disbarment. The Panel found
respondent was subject to discipline pursuant to Rules 7(a)(1), 7(a)(2), 7(a)(3),
7(a)(4), 7(a)(5), 7(a)(6), and 7(a)(10), RLDE, Rule 413. We agree with the Panel's
findings and adopt its recommendations as to additional sanctions which are
warranted here. Prior to seeking reinstatement, respondent must pay the costs of
this disciplinary proceeding, make restitution to the fortynine clients identified in
the attached list, repay the Lawyers Fund for Client Protection for any payments
made on respondent's behalf, and complete the Legal Ethics and Practice Program,
Ethics School, Trust Account School, and Advertising School.
CONCLUSION
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.
TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ.,
concur.
APPENDIX
1. $32,000 to the complainant in Matter 12-DE-L-1459;
2. $5,000 to the complainant in Matter 12-DE-L-1470;
3. $5,000 to the client in Matter 12-DE-L-1492;
4. $20,000 to the complainant in Matter 12-DE-L-1602;
5. $2,000 to the complainant in Matter 13-DE-L-0006;
6. $25,000 to the clients in Matter 13-DE-L-0007;
7. $700,000 to the complainants in Matter 13-DE-L-0075;
8. $50,000 to the complainant in Matter 13-DE-L-0080;
9. $50,000 to the third person in Matter 13-DE-L-0096;
10. $10,000 to the client in Matter 13-DE-L-0326;
11. $410,000 to the investor in Matter 13-DE-L-0817;
12. $500 to the client in Matter 13-DE-L-1046;
13. $2,900 to Arkansas Client Couple in Matter 13-DE-L-0337;
14. $2,900 to California Client A;
15. $2,800 to California Client B;
16. $2,900 to California Client Mr. C;
17. $2,900 to California Client Couple D;
18. $2,900 to Colorado Client;
19. $2,900 to Connecticut Client Couple A;
20. $2,900 to Connecticut Client B;
21. $2,400 to Connecticut Client C;
22. $2,900 to Florida Client;
23. $2,900 to Georgia Client;
24. $2,900 to Idaho Client;
25. $2,900 to Illinois Client A;
26. $2,900 to Illinois Client Couple B;
27. $2,175 to Kentucky Client A;
28. $2,900 to Kentucky Client Couple B;
29. $3,500 to Maine Client;
30. $3,495 to New Hampshire Client;
31. $967 to New Jersey Client;
32. $2,900 to Nevada Client Couple;
33. $2,900 to New York Client;
34. $2,495 to North Carolina Client Couple;
35. $2,900 to Pennsylvania Client A;
36. $2,900 to Pennsylvania Client B;
37. $3,000 to Pennsylvania Client Couple C;
38. $2,000 to Pennsylvania Client D;
39. $2,200 to Tennessee Client A;
40. $2,900 to Tennessee Client B;
41. $2,800 to Tennessee Client Couple C;
42. $2,900 to Texas Client A;
43. $2,900 to Texas Client Couple B;
44. $2,900 to Texas Client Couple C;
45. $2,900 to Texas Client D;
46. $2,900 to Virginia Client;
47. $2,900 to Washington Client A;
48. $2,900 to Washington Client B;
49. $2,900 to Washington Client C; and
50. $1,000 to Washington Client Couple D.