In the Matter of Max Singleton , 412 S.C. 316 ( 2015 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Max Singleton, Respondent.
Appellate Case No. 2015-000536
Opinion No. 27521
Submitted April 23, 2015 – Filed May 13, 2015
DEFINITE SUSPENSION
Lesley M. Coggiola, Disciplinary Counsel, and Ericka M.
Williams, Assistant Disciplinary Counsel, both of
Columbia, for Office of Disciplinary Counsel.
Max B. Singleton, of Greer, 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
the imposition of a public reprimand or definite suspension not to exceed nine (9)
months. Respondent requests that any suspension be imposed retroactively to
November 7, 2014, the date of his interim suspension. In the Matter of Singleton,
410 S.C. 504, 765 S.E.2d 147 (2014). Respondent further agrees to enter into a
restitution plan to pay the costs incurred in the investigation and prosecution of this
matter within thirty (30) days of the imposition of discipline and to complete the
Legal Ethics and Practice Program Ethics School, Trust Account School, and
Advertising School within nine (9) months of the imposition of discipline. Finally,
respondent agrees that, within thirty (30) days of his reinstatement to the practice
of law, he will enter into a restitution agreement with the Commission on Lawyer
Conduct (the Commission) to pay persons and entities harmed as a result of his
misconduct as discussed in this opinion. We accept the Agreement and suspend
respondent from the practice of law in this state for nine (9) months, not retroactive
to the date of his interim suspension. In addition, respondent shall enter into a
restitution plan to 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 and he shall complete the Legal Ethics and Practice Program Ethics
School, Trust Account School, and Advertising School no later than nine (9)
months from the date of this opinion. Further, in the event he is reinstated to the
practice of law, respondent shall enter into a restitution agreement within thirty
(30) days of the date of his reinstatement to pay persons and entities harmed as a
result of his misconduct as discussed in this opinion. The facts, as set forth in the
Agreement, are as follows.
Facts
Matter I
Respondent was retained to represent Complainant A on a matter in traffic court as
well as two other criminal matters. After receiving a summons to appear in
Magistrate's Court on the traffic matter, Complainant A attempted to reach
respondent about the hearing but was unsuccessful. Complainant A appeared in
court without representation and, after communicating with respondent by text
message, Complainant A resolved the ticket by agreeing to pay a reduced fine.
Respondent represents he was not notified of the Magistrate's Court hearing.
Respondent further represents that he was in General Sessions Court for a guilty
plea with another client at the time of the Magistrate's Court hearing in
Complainant A's case. Respondent did not continue his representation of
Complainant A on the remaining matters.
Respondent failed to refund the unearned fees to Complainant A. After a finding
by the Resolution of Fee Disputes Board, respondent was ordered to pay $700.00
to Complainant A. Respondent represents he did not pay the award because he did
not have the funds to do so.
On August 15, 2012, a Notice of Investigation was mailed to respondent requesting
a response to the complaint within fifteen days. When no response was received,
respondent was served with a letter pursuant to In the Matter of Treacy, 277 S.C.
514, 290 S.E.2d 240 (1982), on September 19, 2012, again requesting respondent's
response. Respondent's written response was received by ODC on October 26,
2012.
Matter II
In 2008, respondent engaged the services of a court reporting agency. In
December of 2011, the court reporting agency filed a complaint with the
Commission due to respondent's failure to pay an outstanding invoice in the
amount of $588.72. Following the complaint, respondent mailed a check for
$200.00 to the court reporting agency on or about February 20, 2012, along with an
agreement to mail another payment of $200.00 on or about March 8, 2012, and a
final payment of $188.72 on or about March 29, 2012. The disciplinary matter was
resolved based on respondent's agreement to make the payments as outlined. The
agency accepted the initial $200 payment from respondent and agreed to deduct
the accrued interest of $188.72 from the amount due, leaving an unpaid balance of
$200.00.
On August 1, 2012, the agency filed a second complaint against respondent for
failure to pay the remaining $200.00 balance due on the invoice. Respondent
represents he did not pay the final balance to the court reporting agency because he
did not have the funds to do so.
Matter III
In July 2012, Complainant B retained respondent in a criminal matter. At times
during the representation, respondent failed to adequately communicate with
Complainant B regarding the status of Complainant B's case. Complainant B hired
new counsel and respondent was relieved from representation.
Matter IV
A circuit court judge received a letter from respondent requesting protection from
March 4, 2013, to June 3, 2013, for health reasons. The judge was concerned
about the requested leave as respondent had cases that were scheduled to be heard
during the time of the requested leave.
The judge asked his law clerk to arrange a meeting with respondent prior to the
requested leave date. The law clerk sent an email to respondent on February 28,
2013, inquiring when respondent would be available for a meeting with the circuit
court judge. On March 1, 2013, respondent sent an email to the law clerk stating:
"I don't know because my wife is still in the hospital and is going to be put on bed
rest for the remainder of her pregnancy. She is 31 weeks."
There was no further communication between respondent and the judge prior to the
requested protection date. Respondent did not appear in court during the requested
protection period. After receiving an email from the judge about a specific case
that was scheduled during the protection period, respondent informed the judge
that he mistakenly thought that he had been protected by the court.
On April 3, 2013, respondent was mailed a Notice of Investigation requesting a
response to the complaint within fifteen days. When no response was received,
respondent was served with a letter pursuant to In the Matter of Treacy, id., on
May 24, 2013, again requesting respondent's response. Respondent's written
response was received by ODC on June 10, 2013.
Matter V
Respondent was retained to represent Complainant C in a criminal matter.
Complainant C was scheduled to appear in court for the trial docket on November
26, 2012. Respondent had previously informed Complainant C that he would not
have to appear in court unless it was for a trial or a plea.
On the eve of court, respondent discovered he would not be able to attend court on
November 26, 2012, due to a medical emergency. Respondent represents that he
attempted to call Complainant C to inform him that Complainant C needed to
appear in court the following day, but respondent was unable to reach Complainant
C prior to court. Respondent further represents that he left a voice mail at the
Solicitor's Office informing the prosecutor that he would not be in court and that
Complainant C did not want to accept the plea offer.
Neither respondent nor Complainant C appeared in court on November 26 and a
bench warrant was issued for Complainant C's arrest. Complainant C was arrested
on or about April 4, 2013. Respondent represents he was unaware that a bench
warrant had been issued for Complainant C. Respondent filed a motion to lift the
bench warrant and, following a hearing on May 10, 2013, the bench warrant was
lifted.
Matter VI
After a finding of fact by the Resolution of Fee Disputes Board (Board),
respondent was ordered to pay $400.00 to Complainant D. Respondent failed to
pay the judgment and a certificate of non-compliance was issued by the Board on
September 4, 2013. Respondent represents he did not pay the award because he
did not have the funds.
Respondent was mailed a Notice of Investigation on September 18, 2013,
requesting a response to the complaint within fifteen days. When no response was
received, respondent was served with a letter pursuant to In the Matter of Treacy,
id. on November 8, 2013, again requesting respondent's response. The Treacy
letter was returned to ODC unclaimed. Respondent failed to submit a written
response to the Notice of Investigation, but he did appear before Disciplinary
Counsel and gave testimony under oath regarding the complaint.
Matter VII
ODC investigated a complaint in which the investigation did not reveal clear and
convincing evidence of misconduct. Respondent was mailed a Notice of
Investigation on February 4, 2014, requesting a response to the complaint within
fifteen days. When no response was received, respondent was served with a letter
pursuant to In the Matter of Treacy, id., on February 26, 2014, again requesting
respondent's response. The Treacy letter was returned to ODC unclaimed.
Respondent failed to submit a written response to the Notice of Investigation, but
he did appear before Disciplinary Counsel and gave testimony under oath
regarding the complaint.
Matter VIII
Respondent was retained to represent Complainant E in a criminal matter. At
times during the representation, respondent failed to keep Complainant E
reasonably informed regarding the status of his case. Respondent also failed to
respond to reasonable requests for information from Complainant E. At
Complainant E's request, respondent was relieved from representation by the court.
Respondent was mailed a Notice of Investigation on May 29, 2014, requesting a
response to the complaint within fifteen days. When no response was received,
respondent was served with a letter pursuant to In the Matter of Treacy, id. on July
7, 2014, again requesting respondent's response. Respondent failed to submit a
written response to the Notice of Investigation despite the Treacy letter.
Respondent did appear before Disciplinary Counsel and gave testimony under oath
regarding the complaint.
Matter IX
On December 19, 2011, this Court issued an order of discipline against respondent
with conditions. In the Matter of Singleton, 395 S.C. 521, 719 S.E.2d 667 (2011).
The Office of Commission Counsel monitored respondent's compliance with the
conditions imposed by the Court. Respondent was to provide proof of completion
of the South Carolina Bar's Legal Ethics and Practice Program Ethics School, Trust
Account School, and Advertising School by December 19, 2012. Respondent
failed to complete any of the required sessions.
Respondent was also required to hire a law office management advisor. For a
period of two years, respondent was required to meet with the advisor on a
quarterly basis and the advisor was to file a complete report with the Commission
within thirty (30) days of each meeting. Respondent met with the advisor on three
occasions, but failed to schedule all of the required quarterly sessions. The advisor
reported to the Commission that respondent failed to implement the advisor's
suggestions for better management of respondent's law office practice. Respondent
represents that he did not implement some of the suggestions because he was in the
process of winding down his criminal law practice and was not accepting any new
clients.
Law
Respondent admits that by his conduct he has violated the following provisions of
the Rules of Professional Conduct, Rule 407, SCACR: Rule 1.4 (lawyer shall
provide prompt communication to client and promptly comply with reasonable
requests for information); Rule 1.5 (lawyer shall not charge or collect unreasonable
fee or unreasonable amount for expenses); Rule 1.15 (lawyer shall safekeep client
funds); Rule 1.16(d) (upon termination of representation, lawyer shall refund any
advance payment of fee or expense that has not been earned or incurred); Rule
3.4(c) (lawyer shall not knowingly disobey obligation of tribunal); Rule 4.4 (in
representing client, lawyer shall not use means that have no substantial purpose
other than to burden third person); Rule 8.1(b)(lawyer shall not knowingly fail to
respond to lawful demand for information from disciplinary authority); Rule 8.4(a)
(it is professional misconduct for lawyer to violate Rules of Professional Conduct);
and Rule 8.4(e) (it is professional misconduct for lawyer to engage in conduct
prejudicial to 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 or any other rules of
this jurisdiction regarding professional conduct of lawyers); Rule 7(a)(3) (it shall
be ground for discipline for lawyer to willfully violate valid order of the Supreme
Court and/or knowingly fail to respond to lawful demand from disciplinary
authority to include request for response under Rule 19, RLDE); and Rule 7(a)(10)
(it shall be ground for discipline for lawyer to willfully fail to comply with final
decision of Resolution of Fee Disputes Board).
Conclusion
We accept the Agreement and suspend respondent from the practice of law in this
state for nine (9) months, not retroactive to the date of his interim suspension.1 In
addition, respondent shall enter into a restitution plan to 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, complete the Legal Ethics and
Practice Program Ethics School, Trust Account School, and Advertising School no
later than nine (9) months from the date of this opinion, and provide proof of
completion of the programs to the Commission no later than ten (10) days after the
conclusion of each program. Further, in the event he is reinstated to the practice of
law, respondent shall enter into a restitution agreement within thirty (30) days of
the date of his reinstatement to pay $700.00 to Complainant A, $200.00 to the
court reporting agency in Matter II, and $400.00 to Complainant D. Within fifteen
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.
1
Respondent's disciplinary history includes a 2011 public reprimand, In the Matter
of Singleton, supra, and a 2012 letter of caution. The conduct addressed in the
letter of caution is relevant to the misconduct in the current proceeding. See Rule
2(r), RLDE (fact that letter of caution has been issued shall not be considered in
subsequent disciplinary proceeding against lawyer unless caution or warning
contained in letter of caution is relevant to the misconduct alleged in the new
proceedings).
DEFINITE SUSPENSION.
TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ.,
concur.