In the Matter of Cecil Nolan , 419 S.C. 169 ( 2017 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Cecil Duff Nolan, Jr., Respondent.
Appellate Case No. 2016-002497
Opinion No. 27704
Submitted January 12, 2017 – Filed February 15, 2017
PUBLIC REPRIMAND
Lesley M. Coggiola, Disciplinary Counsel, and Barbara
M. Seymour, Deputy Disciplinary Counsel, both of
Columbia, for Office of Disciplinary Counsel.
Cecil Duff Nolan, Jr., of Stuttgart, Arkansas, pro se.
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 an admonition or public reprimand. We accept the Agreement
and issue a public reprimand. The facts, as set forth in the Agreement, are as
follows.
Facts
Respondent is licensed to practice law in Arkansas. At all times relevant to these
matters, respondent was providing or offering to provide legal services in South
Carolina. Therefore, respondent is a lawyer as defined in Rule 2(q), RLDE, and is
subject to the disciplinary authority of this Court and the Commission on Lawyer
Conduct pursuant to Rule 8.5(a) of the South Carolina Rules of Professional
Conduct, Rule 407, SCACR.
Respondent represented intellectual property holders from Georgia. In 2009,
respondent brought an infringement action on behalf of the property holders (the
plaintiffs) alleging the defendant was selling a product in violation of the plaintiffs'
rights. The lawsuit was originally filed in federal court in Georgia, but was
removed to South Carolina because the defendant is a South Carolina business and
the alleged violation occurred in South Carolina.
In the course of preparing for the litigation, respondent's private investigators
travelled to locations in South Carolina to pose as customers in an effort to obtain
evidence to prove that the defendant was violating the intellectual property rights
of the plaintiffs. During the investigation, respondent's investigators made false
statements to the defendant's employees and used tactics designed to prod the
employees into making statements about the product. Respondent's investigators
tape-recorded these conversations without notice to the employees.
Respondent was unaware that secret tape-recording, pretexting, and dissembling
were in violation of the South Carolina Rules of Professional Conduct.1 He
acknowledges that it was incumbent upon him to research the law in South
Carolina before sending his investigators to this state.
Respondent admits that the conduct of the investigators in secretly tape-recording
the conversations with the defendant's employees, posing as the defendant's
customers, and coercing and manipulating the defendant's employees violated the
following Rules of Professional Conduct, Rule 407, SCACR: Rule 4.4(a) (in
representing client, lawyer shall not use means that have no substantial purpose
other than to embarrass, delay, or burden third person, or use methods of obtaining
evidence that violate the legal rights of third person); 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). Respondent further
admits that he is responsible for the conduct of his investigators and, therefore, he
1
See In the Matter of an Anonymous Member of the Bar, 304 S.C 342, 404 S.E.2d
513 (1991); In the Matter of Warner, 286 S.C. 459, 335 S.E.2d 90 (1985); and In
the Matter of an Anonymous Member of the Bar, 283 S.C. 369, 322 S.E.2d 667(1984).
violated the following additional provisions of the Rules of Professional Conduct:
Rule 5.3(c) (lawyer shall be responsible for conduct of person that would be
violation of Rules of Professional Conduct if engaged in by lawyer if lawyer orders
or, with knowledge of specific conduct, ratifies conduct involved) and Rule 8.4(a)
(it is professional misconduct for lawyer to violate Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the acts of another).
Respondent admits that by his conduct he has violated the following Rules for
Lawyer Disciplinary Enforcement, Rule 413, SCACR: Rule 7(a)(1) (it is ground
for discipline for lawyer to violate Rules of Professional Conduct or any other rules
of this jurisdiction regarding professional conduct of lawyers).
Conclusion
We find respondent's misconduct warrants a public reprimand. Accordingly, we
accept the Agreement and publicly reprimand respondent for his misconduct.
PUBLIC REPRIMAND.
BEATTY, C.J., KITTREDGE, HEARN and FEW, JJ., concur.