In the Matter James Marshall Biddle , 412 S.C. 630 ( 2015 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter James Marshall Biddle, Respondent.
Appellate Case No. 2015-000947
Opinion No. 27536
Submitted June 3, 2015 – Filed June 24, 2015
DEFINITE SUSPENSION
Lesley M. Coggiola, Disciplinary Counsel, and Julie K.
Martino, Assistant Disciplinary Counsel, both of
Columbia, for Office of Disciplinary Counsel.
Kevin Mitchell Barth, Esquire, of Barth, Ballenger &
Lewis, LLP, of Florence, for Respondent.
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 definite suspension from one (1) to three (3) years or to
disbarment. In addition, respondent agrees to pay the costs incurred in the
investigation and prosecution of this matter by ODC and the Commission on
Lawyer Conduct (the Commission) within thirty (30) days of the imposition of
discipline and to complete the Legal Ethics and Practice Program Ethics School
prior to reinstatement or readmission. Further, upon reinstatement or readmission,
respondent agrees to hire a law office management advisor upon the terms and
conditions stated hereafter in this opinion. We accept the Agreement and suspend
respondent from the practice of law in this state for three (3) years with conditions
as stated hereafter. The facts, as set forth in the Agreement, are as follows.
Facts
Matter I
Respondent represented a client in a breach of contract action. On July 21, 2008,
respondent filed a Summons and Complaint on his client's behalf. The defendant
was served on August 1, 2008. On September 3, 2008, respondent sent a letter to
the defendant stating his client would dismiss the lawsuit without prejudice upon
receipt and verification of certain videotapes. A signature line was provided for
the defendant; the defendant signed the letter and returned it to respondent.
Less than two months later, on November 10, 2008, instead of a dismissal,
respondent filed a second Summons with an Amended Complaint on behalf of his
client. The Amended Complaint added a claim of bad faith in connection with the
alleged breach of contract. Respondent then filed an Affidavit of Default on
September 9, 2009, and a damages hearing was held on December 8, 2009.
Respondent obtained an Order of Default and Judgment against the defendant in
the amount of $618,500. The defendant filed a Motion to Alter or Amend based on
his belief that the case was to be dismissed; the motion has not yet been scheduled
for a hearing; respondent has not responded to the motion.
Respondent did not respond to ODC's initial inquiry in this matter and did not
timely respond to a reminder letter sent pursuant to In the Matter of Treacy, 277
S.C. 514, 290 S.E.2d 240 (1982).
Matter II
Respondent represented a client in a post-conviction relief (PCR) action. The
PCR application was denied by order dated February 23, 2011. The order shows a
copy was sent to respondent on February 28, 2011. However, respondent
requested a copy of the order from the Attorney General on April 28, 2011,
indicating he had not previously received the order.
Respondent's client sent several letters to the Supreme Court of South Carolina
inquiring about the status of his appeal. In response, the Court informed the client
that no appeal had been filed. The client filed a pro se Notice of Appeal. The
Court notified respondent of his client's filing and reminded respondent he was still
counsel of record. The Court required respondent to provide it with a copy of the
order on appeal, the date of receipt of the order, the Notice of Appeal, and proof of
service on opposing counsel. Respondent failed to respond to the Supreme Court
and his client's appeal was dismissed.
Respondent did not respond to ODC's initial inquiry in this matter and did not
timely respond to a reminder letter sent pursuant to In the Matter of Treacy, Id.
Matter III
Respondent represented another client in a PCR action. Respondent timely filed a
Notice of Intent to Appeal for the client on November 1, 2011. However,
respondent did not respond to several inquiries by the South Carolina Commission
on Indigent Defense, the Division of Appellate Defense to determine whether he
would continue to represent the client on appeal. Accordingly, the Supreme Court
determined respondent was still counsel of record and informed him he would need
to order the transcript. Respondent did not do so and, on March 28, 2012,
Appellate Defense ordered the PCR transcript and took over the representation of
the client.
Respondent did not respond to ODC's initial inquiry in this matter and did not
timely respond to a reminder letter sent pursuant to In the Matter of Treacy, Id.
Matter IV
Respondent was hired by a property management company. Clients and customers
of the company were to submit claim information to respondent's office so
respondent could assist the company with the decision of whether to file for
bankruptcy protection. During the gathering of this information, the company
decided it had no choice but to file for bankruptcy protection.
Claimant A was one of the bankruptcy claimants. He was told to send his
information to an email address at respondent's office. When that email address
did not work, he was given a second email address at respondent's office.
Claimant A called respondent's office but could not get any information about the
claims process. Claimant A did not receive any information from respondent.
Respondent admits that once the decision to file for bankruptcy protection was
made, he had no communication with the claimants. The claimants were notified
of the bankruptcy filing by the company's bankruptcy attorney, not respondent.
Respondent did not notify any claimants that he was no longer involved in the
matter.
Respondent did not respond to ODC's initial inquiry in this matter and did not
timely respond to a reminder letter sent pursuant to In the Matter of Treacy, Id.
Matter V
Respondent represented Client A, the Personal Representative of Client A's
brother's estate. Client A was appointed on February 15, 2010. On February 15,
2011, a Request to Close was sent from the Horry County Probate Court to
respondent based on the passage of twelve months since Client A's appointment.
Respondent was advised that several documents needed to be filed to close the
estate. The Probate Court requested respondent file these documents within twenty
days. Respondent did not file the requested documents.
On April 18, 2011, respondent requested a sixty day extension to file the requested
documents. The extension request was granted, making the new due date July 1,
2011.
On July 14, 2011, the Horry County Probate Court informed respondent that his
extension had expired and included another Request to Close and a request for
other information. Respondent sent blank forms to Client A to complete.
On July 22, 2011, Horry County Probate Court Judge A issued a Rule to Show
Cause for a hearing on August 19, 2011, for respondent to show cause why he
should not be held in contempt for failure to file the required documents to close
the estate. On August 18, 2011, respondent filed documents in the Horry County
Probate Court. The hearing on the Rule to Show Cause was cancelled.
On September 1, 2011, the Horry County Probate Court informed respondent that
several amendments were required to be made to the documents before the estate
could be closed. Respondent was given twenty days to make the amendments. On
November 2, 2011, the Horry County Probate Court reminded respondent that the
amended documents were still outstanding and requested the documents be filed
within fourteen days.
On December 29, 2011, the Horry County Probate Court issued a third Request to
Close and reminded respondent of the repeated requests for the amended
documents. The court gave respondent an additional thirty days to file the
documents.
On March 5, 2012, Horry County Probate Court Judge A issued a Citation for
Accounting for Closing and set April 6, 2012, for respondent to provide the court
with the outstanding documents. Horry County Probate Court Judge A then issued
a Rule to Show Cause and set a hearing for May 14, 2012, for respondent to show
cause why he should not be held in contempt for failure to file the documents
necessary to close the estate.
On May 15, 2012, a Summons to Show Cause was issued by Horry County
Probate Court Judge A to respondent to appear on June 12, 2012, and show cause
why he should not be held in contempt due to his failure to respond to court
demands for documents. Horry County Probate Court Judge B presided over this
hearing during which respondent testified and assured the court that all of the
amended closing documents would be filed no later than June 30, 2012. The Rule
to Show Cause was held in abeyance pending the submission of the amended
documents.
On July 3, 2012, Horry County Probate Court Judge B issued an Order on
Summons to Show Cause based on the hearing on June 20, 2012. Horry County
Probate Court Judge B made several findings with regard to respondent's failure to
respond to repeated requests by the court for respondent to file documents in order
to close the estate. Horry County Probate Court Judge B found respondent to be in
willful contempt of court for failure to timely respond and ordered him to pay a
civil contempt fine in the amount of $500. On July 18, 2012, respondent filed the
requested documents in the Horry County Probate Court and paid the $500
contempt fine.
Respondent did not respond to ODC's initial inquiry in this matter and did not
timely respond to a reminder letter sent pursuant to In the Matter of Treacy, Id.
Matter VI
In August 2012, Jane Doe contacted respondent for assistance with a probate
matter. The matter was of some urgency as Jane Doe believed the personal
representative of the estate in question was in breach of her fiduciary duties and
Jane Doe wanted respondent to help her protect the assets of the estate.
During the initial telephone conference, respondent told Jane Doe he would go to
the probate court and look into the matter. He later told Jane Doe a petition to
remove the personal representative would need to be filed and he led her to believe
he had filed a petition in probate court when he did not do so.
Jane Doe emailed and telephoned respondent multiple times over the course of six
months inquiring about the status of the petition and to find out whether a hearing
had been scheduled. Respondent routinely ignored her inquiries, but did respond
on two noteworthy occasions. Once, in November 2012, Jane Doe asked
respondent whether she needed to retain a new lawyer because she was frustrated
with respondent's failure to return her calls or respond to her emails. She wanted
copies of the documents that had been filed and asked why no hearing had been
scheduled. Respondent replied via email, "Jane: Not necessary. Will email
documents," convincing her that he had in fact filed the petition.
On another occasion, in response to repeated requests for information from Jane
Doe, respondent informed her that he was very busy and, while he was trying to
help her, clients who had paid his standard retainer fee needed his assistance.
Although Jane Doe had not executed a fee agreement with respondent and never
paid him any money, she offered to send him money on more than one occasion.
Finally, after many more attempts to contact respondent, Jane Doe emailed
respondent on Saturday, February 16, 2013, and again complained about his lack
of communication. She gave respondent an ultimatum, stating that if she did not
hear from respondent by Monday at 5:00 p.m., she would find other representation.
Jane Doe sent this email with a request to notify her when it was read. She
received confirmation that the email was read on Saturday.
On Monday evening, respondent sent a text message to Jane Doe and told her that
her email from Saturday had gone into his "junk folder" and that he had just read it
that day. Based on Jane Doe's confirmation receipt, this was untrue. Respondent
sent another text message to Jane Doe telling her that the hearing date was set, but
he could not remember the date and he would let her know on Tuesday.
Respondent never filed the petition and, therefore, no hearing date was scheduled.
Respondent's representations to Jane Doe that he had filed the petition and that a
hearing had been set were untrue.
Jane Doe's emails demonstrate she believed respondent was representing her and
his limited responses show that this perception was justified. In contrast to this
perception, respondent reported to ODC that he did not represent Jane Doe. He
stated he had reviewed the documents on his own time and at his own expense.
Jane Doe eventually hired another lawyer who discovered respondent had not filed
anything in probate court. The new attorney filed the petition on March 1, 2013,
requesting the removal of the personal representative based on a breach of
fiduciary duty. This petition was filed approximately eighteen months after Jane
Doe initially contacted respondent.
Matter VII
Complainant A was sued by a company for a debt allegedly owed to the company.
Complainant A sent a letter to the company's attorney denying liability and
mistakenly thought the letter would suffice as an Answer. He contended he did not
owe the money because someone forged his signature as guarantor for the debt.
The amount of the debt at the time the company filed the Complaint was
$5,588.43, not including the accruing interest. The company's attorney filed a
Motion for Default, and judgment was entered against Complainant A on January
11, 2011.
Complainant A met with respondent on February 1, 2011, for the purpose of
retaining respondent to file a Motion to Set Aside the Default Judgment based on
fraud. Complainant A paid respondent $500 at the initial meeting.
On February 4, 2011, respondent sent a retainer letter to Complainant A. In the
letter, respondent explained that the representation would cover the Motion to Set
Aside and the fee would be $1,500. Respondent acknowledged the prior receipt of
$500. The letter also stated respondent would accept a payment arrangement but
that "[w]e must receive at least half of this retainer fee prior to work being done on
the case." The engagement letter contained a signature line for Complainant A
consenting to respondent's representation based on terms of the letter.
Complainant A did not return the letter to respondent. Respondent did not refund
the $500 or any portion of it to Complainant A, did not contact Complainant A
about the case, or do any work on the case to earn the $500.
In 2013, Complainant A requested respondent assist him with the refinance of a
mortgage. As part of the title check, respondent found the prior judgment and
discussed it with Complainant A. Complainant A told respondent he thought
respondent had taken care of the judgment pursuant to their agreement.
Respondent told Complainant A he had not done any work on the matter because
Complainant A had not paid the fee.
In August of 2013, respondent filed a Motion to Set Aside Default Judgment. A
hearing on the motion was held on September 10, 2013, at which time the judge
denied the motion based on the expiration of the one year statute of limitations.
On September 26, 2013, respondent received a letter from another attorney
indicating Complainant A had hired him to take over the matter and requesting
Complainant A's file from respondent. A release signed by Complainant A was
included in the letter.
On September 30, 2013, Complainant A provided the Magistrate's Order denying
the Motion to Set Aside Default Judgment to respondent via email. Respondent
replied and informed Complainant A that he had heard from Complainant A's new
attorney and had ten days in which to file an appeal of the judge's ruling.
Respondent also indicated that Complainant A still owed him money for the
refinance matter and the default judgment matter. Respondent indicated "[u]pon
payment I will provide your files to [new attorney]."
Respondent admits he should have informed Complainant A at the initial meeting
that Complainant A had one year to file the Motion to Set Aside Default Judgment
and that he should have contacted Complainant A within the one year period. He
further admits he should have returned Complainant A's $500, requested the
outstanding fee within the statute of limitations period, or have communicated with
Complainant A before the statute of limitations expired.
Matter VIII
John Doe and other members of a Planned Development (PD) met with respondent
in the summer of 2010 and discussed suing the developer for a variety of issues
involving the lack of neighborhood amenities and problems with the Home
Owners' Association (HOA). Respondent quoted a fee of $5,000 to file suit.
Several months later, on February 1, 2011, John Doe paid respondent $2,500 to get
started on the lawsuit. No fee agreement was executed and no other homeowners
paid any money to respondent.
In 2011, the developer was foreclosed upon and the issues related to the HOA and
the amenities became moot. Respondent did no further work on the matter. He did
not send a bill to John Doe or other homeowners and, although he alleged he did a
"good bit" of work on the matter, he did not keep time records to verify this claim.
In December 2012, John Doe, based on his belief that respondent still represented
him, contacted respondent about suing the City of Conway. John Doe alleged the
city illegally issued certificates of occupancy to the residents of the PD and issued
building permits for a new builder to build homes in the PD. John Doe's
complaint, in part, was that the new builder was intending to build smaller homes
in contravention of the PD's original plan. John Doe and respondent
communicated for several months about the issues and, on April 22, 2013,
respondent sent a text to John Doe stating: "John: I'm ready to take on the city of
Conway!"
In May 2013, the City of Conway filed a Complaint and Motion for a Restraining
Order against John Doe. The basis for the motion was that John Doe had behaved
aggressively and threateningly toward City officials. John Doe notified respondent
of the Complaint and respondent appeared at the hearing on John Doe's behalf.
There was no fee agreement addressing this representation, but respondent
represented John Doe at the hearing. He cross-examined witnesses, presented
arguments to the judge, and advocated on John Doe's behalf.
Over the next several months, John Doe sent emails and text messages to
respondent about several issues relating to the new homes, the PD, and the conduct
of certain city employees. Respondent frequently responded with messages
indicating that he was gathering evidence or working on the matters in some
fashion. John Doe's messages to respondent became more and more strident and
vitriolic toward the city, toward several people involved in the matter, and toward
respondent. The communications between John Doe and respondent became
hostile and, in November, John Doe filed a complaint against respondent with the
ODC.
In response to the Notice of Investigation, respondent indicated that he never
intended to sue the City and that he told John Doe to hire an out-of-town attorney.
This is contradicted by respondent's text message. Respondent indicated that he
did not believe John Doe had an actionable claim against the City until October
2013 when John Doe's request for a fencing permit was denied. Respondent
admits he did not inform John Doe of this opinion.
Law
Respondent admits that by his conduct he has violated the following provisions of
the Rules of Professional Conduct, Rule 407, SCACR: Rule 1.1 (lawyer shall
provide competent representation to client); Rule 1.2 (lawyer shall abide by client's
decisions concerning objective of representation); Rule 1.3 (lawyer shall act with
reasonable diligence and promptness is representing client); Rule 1.4 (lawyer shall
keep client reasonably informed about status of matter and promptly comply with
reasonable requests for information); Rule 1.5 (scope of representation and basis or
rate of fee and expenses for which client will be responsible shall be
communicated to client, preferably in writing, before or within reasonable time
after commencing representation); Rule 1.16 (upon termination of representation,
lawyer shall take steps to extent reasonably practicable to protect client's interests,
such as giving reasonable notice to client); Rule 3.2 (lawyer shall make reasonable
efforts to expedite litigation consistent with interests of client); Rule 3.3 (lawyer
shall not make false statement of fact to tribunal); Rule 3.4 (lawyer shall not
conceal document or other material having potential evidentiary value; lawyer
shall not knowingly disobey obligation under rules of tribunal); Rule 3.5(d)
(lawyer shall not engage in conduct tending to disrupt tribunal); Rule 8.1 (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); 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 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); and Rule 7(a)(3) (it
shall be ground for discipline for lawyer to willfully fail to respond to lawful
demand from disciplinary authority to include request for response).
Conclusion
We accept the Agreement and definitely suspend respondent from the practice of
law in this state for three (3) years.1 Respondent shall pay the costs incurred in the
investigation and prosecution of this matter within thirty (30) days of the date of
this opinion. He shall complete the Legal Ethics and Practice Program Ethics
School prior to filing a Petition for Reinstatement.
1
Respondent's disciplinary history includes a public reprimand issued in 2009, In
the Matter of Biddle, 382 S.C. 233, 676 S.E.2d 319 (2009), and a letter of caution
issued in 2011 warning respondent to adhere to some of the Rules of Professional
Conduct cited in the current matter. See Rule 2(r), RLDE (fact that a letter of
caution has been issued shall not be considered in subsequent disciplinary
proceeding against lawyer unless caution relevant to misconduct alleged in
proceeding).
In the event respondent is reinstated to the practice of law, he shall hire a law
office management advisor approved by the Commission and complete the
following: 1) within thirty days of retaining the advisor, respondent shall meet
with the advisor to conduct a thorough review of his law office management
practices; 2) within thirty days of the date of the review, the advisor shall file a
report concerning respondent's law office management practices with the
Commission; the report shall include a review, analysis, and recommendations
concerning respondent's practice; 3) respondent shall meet with the advisor once
every three months for two years and the advisor shall file a complete report with
the Commission within thirty days of each meeting; and 4) respondent shall be
responsible for payment of the advisor and for timely submission of the advisor's
reports. Respondent's failure to comply with any of these conditions or with the
advisor's recommendations shall constitute grounds for further discipline.
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 and KITTREDGE, JJ., concur.
HEARN, J., not participating.