In the Matter of Douglas Francis Gay ( 2015 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Douglas Francis Gay, Respondent.
Appellate Case No. 2015-000531
Opinion No. 27524
Submitted April 24, 2015 – Filed May 13, 2015
DEFINITE SUSPENSION
Lesley M. Coggiola, Disciplinary Counsel, and Julie K.
Martino, Assistant Disciplinary Counsel, both of
Columbia, for Office of Disciplinary Counsel.
Peter Demos Protopapas, of Rikard & Protopapas, LLC,
of Columbia, for Respondent.
PER CURIAM: In this attorney disciplinary matter, respondent and the Office
of Disciplinary Counsel 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 ranging from one (1) to three (3) years. He
requests the suspension be imposed retroactively to January 13, 2012, the date of
his interim suspension. In the Matter of Gay, 396 S.C. 287, 721 S.E.2d 429(2012). In addition, respondent agrees to pay the costs incurred in the
investigation and prosecution of this matter within thirty (30) days of the
imposition of discipline, to pay restitution to the mediator as discussed hereafter,
and to complete the Legal Ethics and Practice Program Ethics School within nine
(9) months of the imposition of a sanction. Respondent further agrees he shall not
be eligible to seek reinstatement until all conditions of his criminal sentences have
been satisfied. We accept the Agreement and suspend respondent from the
practice of law in this state for three (3) years, retroactive to the date of his interim
suspension. Further, respondent shall pay the costs incurred in the investigation
and prosecution of this matter within thirty (30) days of the date of this opinion,
shall pay restitution to the mediator as discussed below, and shall complete the
Legal Ethics and Practice Program Ethics School within nine (9) months of the
date of this opinion. Respondent shall not be eligible to seek reinstatement until he
has satisfied all conditions of his criminal sentences. The facts, as set forth in the
Agreement, are as follows.
Facts
Matter I
Respondent was appointed to defend Complainant A on a number of criminal
charges. Complainant A had already been convicted on separate charges at trial
with different counsel. Complainant A decided he did not want to go to trial again
but, rather, he wanted to plead guilty on the remaining charges. Complainant A
pled guilty to two charges before one judge and seven charges before another
judge. He was sentenced on March 30, 2009, and April 27, 2009, respectively.
Complainant A requested respondent appeal his convictions and sentences;
respondent promised to do as requested. The appeal from the March 30, 2009,
sentence was dismissed because respondent failed to timely file and serve the
Notice of Appeal. In addition, respondent did not cite any issue on which the
appeal could properly proceed as required by Rule 203(B), SCACR. Respondent
represents he does not believe any preserved issues existed, but that he filed the
Notices of Appeal because his client directed he do so. Respondent admits he did
not reply to any correspondence from the South Carolina Court of Appeals or
follow the court's directives to pursue the appeals. Respondent failed to respond or
take any action on Complainant A's behalf.
As a result of respondent's complacency, Complainant A's appeals were dismissed
and, when respondent did not request reinstatement of the appeals, the matters
were remitted to the trial court. Respondent admits that he mistakenly believed
that his representation of Complainant A ended with the filing of the Notices of
Appeal. He explains he thought the Division of Appellate Defense, a division of
the South Carolina Commission on Indigent Defense, would assume the
representation, but he did not contact that agency in spite of written warning from
the Court of Appeals that unless he provided the Commission on Indigent Defense
with all information needed to proceed, he would remain counsel of record.
Multiple letters from the court clearly explained that respondent was still
responsible for Complainant A's appeals and that respondent needed to take action.
Respondent admitted he did not contact the Commission on Indigent Defense to
see whether it would handle Complainant A's appeals. Respondent did not advise
Complainant A that his appeals had been dismissed.
In addition, respondent did not reply to correspondence from Complainant A. On
several occasions, Complainant A wrote respondent or had his family call
respondent to request copies of the transcripts, his case file, discovery, and all
other relevant documents. Respondent did not respond.
Matter II
Complainant B is a mediator who billed respondent for two separate mediations.
Respondent failed to pay the bills in spite of repeated requests by the mediator for
more than a year and a half. Respondent admits he did not pay the mediator for his
services. Respondent states his clients had not paid him despite repeated requests
and that he has not been in a financial position to resolve the debt himself.
Respondent maintains that he intends to pay the mediator when he is able to do so.
Matter III
Respondent self-reported his arrest for twelve counts of Failure to Pay Over or
Account for Withholding Taxes in violation of S.C. Code Ann. § 12-54-44(B)(2).
Because of the arrest, respondent was placed on interim suspension. Id.Respondent subsequently pled guilty to three counts of the lesser included offense
of Failure to Pay Withholding Taxes, File a Return, or Maintain Records, in
violation of S.C. Code Ann. § 12-54-44(B)(3). Respondent was sentenced to one
year imprisonment, suspended upon the service of two years of probation, with
probation to terminate upon the completion of eighty (80) hours of community
service. Respondent's sentence was the same for each of the three counts to which
he pled guilty with all sentences to run concurrently.
As part of the plea agreement, the original charges were dismissed without
prejudice. Respondent was ordered to pay $1,500.00 for the cost of prosecuting
the case and $11,469.00 in restitution to the State of South Carolina for the State
employee withholding taxes.
Matter IV
After he was placed on interim suspension, respondent spoke with a farmer about a
potential foreclosure. Respondent admits his communication with the farmer
violated the order placing him on interim suspension.
Law
Respondent admits that by his conduct he has violated the following provisions of
the Rules of Professional Conduct, Rule 407, SCACR: Rule 1.2 (lawyer shall
lawyer shall abide by client's decisions concerning objectives of representation and
shall consult with client as to means by which they are to be pursued); Rule 1.3
(lawyer shall act with reasonable diligence and promptness in representing client);
Rule 1.4 (lawyer shall provide prompt communication to client and promptly
comply with reasonable requests for information); Rule 1.15 (lawyer shall
promptly deliver to client property that client entitled to receive); Rule 1.16
(lawyer must comply with applicable law requiring notice to or permission of
tribunal when terminating representation); Rule 4.4 (in representing client, lawyer
shall not use means that have no substantial purpose other than to burden third
person); Rule 5.5 (lawyer shall not practice law in violation of regulation of legal
profession in that jurisdiction); 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); 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).
Conclusion
We accept the Agreement and suspend respondent from the practice of law in this
state for three (3) years, retroactive to the date of his interim suspension.1
Further, respondent shall pay restitution of $1,237.50 to the mediator referenced in
1
Respondent's disciplinary history includes an admonition issued in 2007 and a
public reprimand issued in 2010. In the Matter of Gay, 388 S.C. 280, 696 S.E.2d
586 (2010).
Matter II within sixty (60) days of the date of this opinion. Respondent shall pay
the costs incurred in the investigation and prosecution of this matter by the Office
of Disciplinary Counsel and Commission on Lawyer Conduct (the Commission)
within thirty (30) days of the date of this opinion and shall complete the Legal
Ethics and Practice Program Ethics School within nine (9) months of the date of
this opinion and provide proof of completion of the program to the Commission no
later than ten (10) days after the conclusion of the program. Respondent shall not
seek reinstatement until he has satisfied all conditions of his criminal sentences.
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.
DEFINITE SUSPENSION.
TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ.,
concur.