In the Matter of William Joseph Cutchin , 412 S.C. 144 ( 2015 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of William Joseph Cutchin, Respondent.
Appellate Case No. 2014-002498
Opinion No. 27518
Heard March 5, 2015 – Filed April 22, 2015
DISBARRED
Disciplinary Counsel Lesley M. Coggiola, and Assistant Disciplinary
Counsel Julie K. Martino, both of Columbia, for Office of
Disciplinary Counsel.
William Joseph Cutchin, of Tallahassee, Florida, pro se.
PER CURIAM: William Joseph Cutchin (Respondent) engaged in a course
of conduct where he undertook representation of clients but failed to perform the
services promised, accepted fees for work not completed, and comingled and
misappropriated client funds. Additionally, Respondent closed his law practice
and moved out of state without notifying clients or providing any forwarding
information. We disbar Respondent, order him to pay the costs of this proceeding,
make restitution, and to complete the Legal Ethics and Practice Program, Ethics
School, and Trust Account School prior to seeking readmission to the South
Carolina Bar.
PROCEDURAL/FACTUAL BACKGROUND
Formal charges were filed against Respondent by the Office of Disciplinary
Counsel (ODC) on November 8, 2013. Respondent filed an answer on December
12, 2013. The panel of the Commission on Lawyer Conduct served Respondent
with an order to appear before the panel on June 12, 2014, and the panel convened
on August 12, 2014. Respondent did not appear. As a result of his failure to
appear, Respondent is deemed to have admitted the factual allegations in the
formal charges pursuant to Rule 24(b), RLDE, Rule 413, SCACR. The factual
allegations are as follows:
Matter A
Respondent was retained to prepare a will and trust for a client. Respondent
prepared the documents, and they were signed by the client. After client's death,
complainants, the trustees in this matter, asked for assistance in paying medical
and funeral expenses and probating client's estate. Respondent agreed and charged
complainants $1,000.00.
Respondent suggested complainants sign several blank counter checks on
the trust account so he could pay bills as they came due. The complainants agreed,
and left several signed, blank checks in Respondent's possession. He then wrote
checks on the trust account that totaled $12,500.00, only $1,000.00 of which was
authorized as payment to him. Of the $11,500.00 fraudulently deposited into his
Respondent's operating account, only $2,381.24 was used on behalf of the trust;
$9,118.76 was misappropriated.
After repeated attempts to receive records requested regarding this matter,
ODC issued a subpoena requiring Respondent to appear for an interview with the
records. Respondent failed to appear. Instead, Respondent wrote a letter to ODC
stating he had closed his practice, never intended to practice law again, and was
moving out of the state.
Matter B
Respondent was retained by client to probate the will of client's late wife,
and took possession of the will and death certificate. When the client attempted to
contact Respondent about receiving funds from his wife's life insurance policy, he
discovered Respondent's office was empty and his telephone disconnected. The
client's e-mails were returned as undeliverable. Respondent did not inform client
that he was closing his office, provide contact information to client, or advise him
to find another attorney.
Matter C
A client retained Respondent for assistance in estate planning, and paid him
$3,900.00. The client also provided his and his wife's wills as well as the title to
their home. After Respondent drafted the estate planning documents, client
discovered an error and asked that it be corrected. The client spoke to
Respondent's paralegal, who answered him she would correct the problem.
When client returned to Respondent's office to retrieve the corrected
documents, he discovered it was vacant. There was no notice on the door saying
where Respondent had gone or what happened to the firm. When client attempted
to call, the telephone had been disconnected, and his e-mails were returned as
undeliverable. None of client's original documents were ever returned.
The client filed a complaint against Respondent with the Resolution of Fee
Disputes Board. The board found in favor of client in the amount of $2,000.00.
Matter D
Respondent was retained by client to draft a simple trust. The client initially
paid $1,000.00, and later paid an additional $500.00. The client never heard from
Respondent again. He attempted to call but the office telephone service was
disconnected, and all e-mails to Respondent were returned as undeliverable.
Matter E
Respondent was retained by client to handle his deceased father's estate.
When complainant, client's mother, took over the estate after client's death, it had
been ongoing for six years with little progress. Respondent asked for extensions to
file documents in the probate court on May 14, 2007, December 3, 2007, January
6, 2010, December 29, 2010, and October 21, 2011. On August 6, 2012,
Respondent asked for another extension and falsely represented he needed the
extension because he had just recently gotten the case and needed time to put
everything together. When complainant attempted to contact Respondent, she
discovered he had abandoned his office. Respondent's telephone was disconnected
and Respondent made no effort to inform her that he was closing his practice.
Although client paid Respondent $3,000.00 and complainant paid an additional
$2,500.00, Respondent never did the work he was hired to complete.
Matter F
Respondent was hired by client to assist him with estate planning. After
Respondent retitled deeds to client's property but filed them incorrectly, client
obtained paperwork to correct the problems and took it to Respondent. The client
later attempted to contact Respondent to ensure the corrections had been made and
discovered the telephone had been disconnected. The client drove to Respondent's
office, but it was closed and no forwarding information was available. Respondent
never returned documents to client.
Matter G
Husband and wife clients paid $400.00 for Respondent's "Estate Planning
Updating" service. Although clients had questions about the estate planning
process, Respondent was not available. The clients made an appointment to meet
with Respondent, but Respondent did not show up; his paralegal did.
Respondent's paralegal took possession of clients' car title, which was never
returned. Later, Respondent sent clients a letter telling them he was resigning as
their attorney because of an undisclosed conflict. The clients were unable to
obtain any of their original documents from Respondent.
Matter H
Respondent was retained by a client to create a living trust. After client's
death, the trustee paid $4,500.00 for representation of the estate and trust.
Respondent mismanaged the trust to the detriment of the trustee and his family.
Complainant, the trustee, paid an additional $3,895.00 to Respondent for
preparation of a personal trust. Respondent did nothing with regard to the personal
trust except provide a trust/estate planning notebook. Complainant also submitted
banking records and property deeds to Respondent, which were never returned.
Matter I
Respondent attempted to sell his practice to another attorney. Respondent
did not give written notice to his clients or publish a notice of the sale in a
newspaper of general circulation in his geographic area, as required by the rules.
Matter J
Respondent has failed to cooperate with the Attorney to Protect Client
Interests (ATP), who needed to use an Internet-based service to find Respondent
because he abandoned his office and left no forwarding information. After the
ATP found Respondent, he told the ATP he was moving to Florida but did not
provide a forwarding address or any contact information whatsoever. Respondent
left the state and has had very limited communication with the ATP.
LAW/ANALYSIS
This Court reserves the sole authority to discipline attorneys and determine
appropriate sanctions. In the Matter of Thompson, 343 S.C. 1, 10, 539 S.E.2d 396,
401 (2000). Although the Court may draw its own conclusions and make its own
findings of fact, the unanimous findings and conclusions of the panel are entitled to
significant respect and consideration. Id. at 11, 539 S.E.2d at 401.
We find based on the foregoing facts that Respondent has violated the
following Rules of Professional Conduct, Rule 407, SCACR: Rule 1.1 (competent
representation); Rule 1.2 (scope of representation); Rule 1.3 (diligence and
promptness in representing client); Rule 1.4 (communicating with clients); Rule
1.5 (unreasonable fees and expenses); Rule 1.15 (misappropriation of client funds);
Rule 1.16 (protecting client interests when terminating representation); Rule 1.17
(lawyer's responsibilities for sale of law practice), Rule 2.1 (rendering candid
advice); Rule 3.2 (expediting litigation); Rule 5.3 (lawyer's responsibilities
regarding nonlawyer assistants); Rule 8.1(b) (failure to disclose facts in connection
with a disciplinary matter); Rule 8.4(b) (committing a criminal act that reflects
adversely on honesty, trustworthiness, or fitness as a lawyer); Rule 8.4 (d)
(engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); and
Rule 8.4(e) (conduct that is prejudicial to the administration of justice). We find
Respondent has also violated Rule 402(k)(3) (lawyer's oath) and Rule 417
(financial recordkeeping), SCACR.
The panel recommended disbarment. While disbarment is an extraordinary
sanction, "the primary purpose of disbarment . . . is the removal of an unfit person
from the profession for the protection of the courts and the public, not punishment
of the offending attorney." In the Matter of Pennington, 393 S.C. 300, 304, 713
S.E.2d 261, 263 (2011) (quoting In the Matter of Burr, 267 S.C. 419, 423, 228
S.E.2d 678, 680 (1976)). We have found disbarment is an appropriate sanction in
similar cases. See, e.g., In the Matter of Trexler, 350 S.C. 483, 487, 567 S.E.2d
470, 472 (2002) (disbarring attorney for multiple acts of misconduct, including
misappropriation of client funds); In the Matter of Craig, 344 S.C. 646, 651, 545
S.E.2d 823, 826 (2001) (disbarment is appropriate sanction where attorney
commits multiple acts of misconduct, including misappropriation of client funds).
It is significant that Respondent has failed to meaningfully participate in
these disciplinary proceedings. In addition to failing to appear at the panel hearing,
Respondent did not appear during oral argument before the Court. As this Court
has stated:
An attorney usually does not abandon a license to practice law
without a fight. Those who do must understand that "neglecting to
participate [in a disciplinary proceeding] is entitled to substantial
weight in determining the sanction." An attorney's failure to answer
charges or appear to defend or explain alleged misconduct indicates
an obvious disinterest in the practice of law. Such an attorney is
likely to face the most severe sanctions . . . .
In the Matter of Hall, 333 S.C. 247, 251, 509 S.E.2d 266, 268 (1998) (quoting In
the Matter of Sifly, 279 S.C. 113, 115, 302 S.E.2d 858, 859 (1983)).
Respondent fraudulently deposited client funds into his operating account,
and misappropriated client funds. Further, Respondent failed to provide
representation he had promised, abandoned his practice without proper closure, has
not cooperated with the ATP, and failed to engage in these disciplinary
proceedings. Respondent's actions have shown a clear disinterest in continuing the
practice of law in South Carolina. We therefore agree that disbarment is the
appropriate sanction.
CONCLUSION
We disbar Respondent and order him to pay the costs of these proceedings in
the amount of $1,161.75. We also order him to make restitution in the amount of
$9,118.76 to the complainants in Matter A; $2,000.00 to the client in Matter C;
$1,500.00 to the client in Matter D; $5,500.00 to the complainant in Matter E;
$400.00 to the clients in Matter G; and $8,395.00 to the complainant in Matter H.
Respondent shall enter into a restitution payment plan with ODC within forty-five
days of the filing of this opinion. We also order Respondent to complete the Legal
Ethics and Practice Program, Ethics School, and Trust Account School as
conditions of readmission.
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,
RLDE, Rule 413, SCACR, and shall also surrender his certificate of admission to
the practice of law in South Carolina to the Clerk of Court.
DISBARRED.
TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ.,
concur.