In the Matter of John Owens

THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of John Kevin Owens, Respondent.
Appellate Case No. 2016-001741
Opinion No. 27689
Submitted November 16, 2016 – Filed December 7, 2016
DISBARRED
Lesley M. Coggiola, Disciplinary Counsel, and Ericka M.
Williams, Senior Assistant Disciplinary Counsel, both of
Columbia, for Office of Disciplinary Counsel.
Robert Clyde Childs, III, Childs Law Firm, of Greenville,
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
disbarment with conditions. He requests the disbarment be imposed retroactively
to March 5, 2014, the date of his interim suspension. In the Matter of Owens, 407
S.C. 225, 755 S.E.2d 113 (2014). We accept the Agreement and disbar respondent
from the practice of law in this state, retroactive to the date of his interim
suspension. In addition, we impose the conditions set forth in this opinion. The
facts, as set forth in the Agreement, are as follows.
Matter A
Respondent was retained on February 26, 2013, to represent Client A in a domestic
matter. Respondent was paid $1,000 for his representation. On March 6, 2013,
Respondent sent a letter to Client A indicating he was enclosing a copy of the
complaint he had forwarded to the family court for filing. Respondent stated he
would serve the opposing party as soon as he received the filed copy back from the
family court. In fact, Respondent never filed the complaint with the family court.
Client A eventually terminated the representation and requested a refund of his
unused retainer. Respondent did not return the unearned portion of the fee.
ODC mailed a Notice of Investigation to Respondent on June 10, 2013, requesting
a response within fifteen (15) 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), again requesting Respondent's response. Respondent
responded on October 22, 2013, when he appeared for an on-the-record interview
pursuant to Rule 19(b), RLDE.
Matter B
On February 19, 2013, Respondent was retained to represent Client B in a
domestic matter. Client B paid Respondent $1,400 for the representation. Because
Client B was out of the country, Respondent was directed to communicate with
Client B's mother.
On March 13, 2013, Respondent sent an email to Client B's mother which read,
"Attached is the copy of the complaint I have filed with the Family Court in [Client
B's] divorce proceeding. I should reeve (sic) the cocked (sic) copy back in several
days and will begin the process of serving it through publication in a local
newspaper obviously without any identifying information." At the time,
Respondent had not filed any documents with the family court on Client B's behalf,
and in fact, Respondent never filed the referenced complaint.
On May 22, 2013, this Court placed Respondent on administrative suspension for
failure to comply with continuing legal education (CLE) requirements. Lawyer did
not inform Client B or her mother of his administrative suspension.
Client B terminated Respondent's representation on June 3, 2013, and requested a
refund of the entire amount paid to Respondent. Respondent failed to timely
refund the unearned portion of his fee. ODC mailed a Notice of Investigation to
Respondent on June 17, 2013, requesting a response within fifteen (15) days.
Respondent's written response was hand delivered on October 22, 2013, when
Respondent appeared for an interview with ODC.
Matter C
Pursuant to Rule 416, SCACR, the South Carolina Bar Resolution of Fee Disputes
Board (RFDB) ordered Respondent to pay Client B the amount of $1,400. After
Respondent failed to pay Client B, a certificate of non-compliance was issued by
RFDB. ODC mailed a Notice of Investigation to Respondent on October 7, 2013,
requesting a response within fifteen (15) days. Respondent's written response was
received by Disciplinary Counsel on July 14, 2014.
Matter D
Respondent submitted a letter to South Carolina Farm Bureau Insurance (Farm
Bureau) asserting his representation of Client C in connection with a claim arising
from an automobile accident. After agreeing to settle the claim, Farm Bureau
issued two checks to Respondent made payable to Respondent for Client C. Farm
Bureau issued a written request to Respondent to hold the drafts in trust and not
disburse any funds until a release was fully executed and returned to the claims
adjuster. Respondent negotiated the checks. Despite numerous requests and
reminders, Respondent failed to deliver the release to Farm Bureau. Further,
Respondent failed to disburse any proceeds of the settlement to Client C.
Respondent failed to safeguard Client C's settlement and converted the funds for
Respondent's personal use. ODC mailed a Notice of Investigation to Respondent
on December 30, 2013, requesting a response within fifteen (15) days. On January
8, 2014, Disciplinary Counsel issued a Notice to Appear requesting Respondent's
appearance on February 6, 2014, for an interview. Prior to his scheduled
appearance, Respondent retained counsel, and the appearance was continued at the
request of counsel. Respondent's written response was received on July 14, 2014.
Matter E
While administratively suspended, Respondent agreed to represent Client D in a
civil matter concerning Client D's business. Respondent accepted payment from
Client D but did not do any work on Client D's behalf. Due to Respondent's failure
to do any work on the matter, a default judgment was entered against Client D's
company.
ODC mailed a Notice of Investigation to Respondent, requesting a response within
fifteen (15) 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),
again requesting Respondent's response. Respondent's written response was
received on July 14, 2014.
Matter F
While administratively suspended, Respondent agreed to represent Client F on a
probate matter. Client F paid Respondent $600. Respondent did not perform any
legal services for Client F and converted the money paid by Client F for
Respondent's personal use. ODC mailed a Notice of Investigation to Respondent
on March 12, 2014, requesting a response within fifteen (15) 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), again requesting
Respondent's response. Respondent's written response was received on July 14,
2014.
Matter G
Respondent accepted $750 to complete a will for Client G after his license was
administratively suspended. Respondent did not complete the will for Client G and
failed to adequately communicate with Client G. Respondent later reimbursed
Client G the amount of $750.
ODC mailed Respondent a Notice of Investigation on March 12, 2014, requesting
a response within fifteen (15) 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), again requesting Respondent's response. Respondent's written
response was received on July 14, 2014.
Matter H
Respondent represented Client H prior to being administratively suspended. After
Respondent's suspension, Respondent accepted additional fees of approximately
$6,975 from Client H. Respondent maintains some of the fees were for services
performed prior to his suspension. However, Respondent acknowledges he also
accepted fees for work he did not perform. Respondent later reimbursed Client H
$10,000.
ODC mailed a Notice of Investigation to Respondent on March 12, 2014. 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), again requesting
Respondent's response. Respondent's written response was received on July 14,
2014.
Matter I
In September 2012, Client I retained Respondent for representation in a domestic
matter. Respondent received $350 for the representation. Respondent prepared a
summons and complaint that was filed on September 13, 2012. A temporary
hearing was held on October 22, 2012. A final hearing was held on January 31,
2013. Respondent was administratively suspended prior to the completion of a
final order in the domestic matter. As part of a plea agreement reached in the
criminal case discussed in Matter R below, Respondent agreed to reimburse Client
I the amount of $350.
ODC mailed a Notice of Investigation to Respondent on March 12, 2014. 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), again requesting
Respondent's response. Respondent's written response was received on July 14,
2014.
Matter J
Client J paid respondent $500 to represent him in a matter involving the South
Carolina State Guard. At the time Respondent accepted the fee, his license to
practice law had been administratively suspended. Respondent did not perform
any legal services for Client J and converted the $500 paid by Client J for
Respondent's personal use. Respondent later reimbursed Client J the amount of
$500.
ODC mailed a Notice of Investigation to Respondent on March 12, 2014. 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), again requesting
Respondent's response. Respondent's written response was received on July 14,
2014.
Matter K
After his administrative suspension, Respondent accepted $1,500 to represent
Client K in a civil matter. Respondent performed legal services for Client K while
Respondent was administratively suspended by this Court. Respondent failed to
adequately communicate with Client K. Respondent refunded $1,500 to Client K.
ODC mailed a Notice of Investigation to Respondent on March 12, 2014. 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), again requesting
Respondent's response. Respondent's written response was received on July 14,
2014.
Matter L
Client L retained Respondent prior to Respondent's administrative suspension.
Respondent was paid $1,387.50 by Client L to prepare a deed, wills and durable
powers of attorney. Respondent continued to work for Client L following his
suspension. Respondent failed to adequately communicate with Client L regarding
the status of Client L's matters.
ODC mailed a Notice of Investigation to Respondent on March 12, 2014. 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), again requesting
Respondent's response. Respondent's written response was received on July 14,
2014.
Matter M
On May 10, 2013, Client M's grandfather paid $500 to Respondent to review
Client M's criminal charges. At that time, Client M was represented by another
attorney. Respondent made several inquiries about Client M's situation. After
Respondent was placed on administrative suspension, Responded failed to
adequately communicate with Client M and did not adequately explain the scope
and extent of his representation. Respondent did not perform any legal work on
Client M's behalf, and a public defender was appointed to represent Client M.
Respondent did not refund the unused portion of the fee paid to him for the
representation of Client M.
ODC mailed a Notice of Investigation to Respondent on March 12, 2014. 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), again requesting
Respondent's response. Respondent's written response was received on July 14,
2014.
Matter N
Client M's mother paid Respondent $5,280 to represent Client M in connection
with criminal charges. Of the funds received, Respondent paid $800 on behalf of
Client M for restitution. Respondent admits he received a portion of the funds
after he was placed on administrative suspension. Respondent failed to adequately
communicate with Client M or Client M's mother. Respondent did not refund the
unearned portion of the fee paid to him for the representation. Respondent also
failed to hold the fees in trust until earned. Respondent later reimbursed Client M
the amount of $500.
ODC mailed a Notice of Investigation to Respondent on July 18, 2014, requesting
a response within fifteen (15) 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), again requesting Respondent's response. Respondent's written
response was received on October 3, 2014.
Matter O
Client N paid Respondent $1,500 to complete a qualified domestic relations order
(QDRO). Respondent failed to complete the QDRO and failed to adequately
communicate with Client N regarding the matter. After Respondent was
administratively suspended from the practice of law, he failed to refund the unused
portion of the fee. Respondent also failed to hold the fees in trust until earned.
On July 18, 2014, ODC mailed a Notice of Investigation to Respondent, requesting
a response within fifteen (15) 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), again requesting Respondent's response. Respondent's written
response was received on October 3, 2014.
Matter P
Client P retained Respondent to represent him in a domestic matter. Respondent
quoted Client P a fee of $750 plus costs for the representation, which Client P paid
in installments. Respondent received a portion of the fees and costs after he was
placed on administrative suspension. Respondent failed to do any work in
furtherance of the representation. According to Respondent, he could not begin
work on the matter until Client P paid the outstanding amount of his child support
obligations. Respondent did not hold the fees and costs in trust and also did not
refund Client P's fees and costs upon Respondent's suspension.
On August 4, 2014, ODC mailed a Notice of Investigation to Respondent,
requesting a response within fifteen (15) 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), again requesting Respondent's response.
Respondent's written response was received on October 3, 2014.
Matter Q
Client P paid Respondent $1,500 to complete guardianship paperwork for Client
P's relative. At the time Respondent received the funds, he was employed by a law
firm. Respondent left the law firm before completing the guardianship paperwork.
Respondent did not deposit the funds paid by Client P in the firm's trust account
and did not refund any portion of the fee to Client P. Respondent failed to notify
Client P when he left the law firm, and he failed to adequately communicate with
Client P regarding the status of the guardianship. Another attorney in the firm
continued the work on Client P's behalf without additional compensation.
Matter R
On June 13, 2016, Respondent pled of guilty to one count of Unauthorized Practice
of Law. Respondent was sentenced to five years and a $5,000 fine, suspended on
service of five years' probation and payment of restitution. The order further
provided probation could be terminated after no less than thirty months if
Respondent paid all ordered restitution. According to the Attorney General's
office, the plea resolved claims of Unauthorized Practice of Law and Breach of
Trust for Clients B, F, G, H, I, J, K, L and M, above.
Violations of the Rules of Professional Conduct
Respondent admits he violated the following provisions of the Rules of
Professional Conduct, Rule 407, SCACR: Rule 1.3 (a lawyer shall act with
reasonable diligence in representing a client); Rule 1.4 (a lawyer shall keep his or
her client reasonably informed and comply with reasonable requests for
information); Rule 1.5 (a lawyer must refund the unearned portion of a fee upon
termination); Rule 1.15(c) (a lawyer shall deposit into a client trust account
unearned legal fees and expenses that have been paid in advance, to be withdrawn
by the lawyer only as fees are earned or expenses incurred); Rule 1.15(d) (upon
receiving funds in which a client has an interest, a lawyer shall promptly notify the
client and shall promptly deliver to the client any funds the client is entitled to
receive and, upon request by the client or third person, shall promptly render a full
accounting regarding such property); Rule 1.16(a) (a lawyer shall withdraw from
representation of a client if the representation will result in violation of the Rules
of Professional Conduct or other law); Rule 1.16(d) (upon termination of
representation, a lawyer must return the unearned fee to the client); Rule 3.2 (a
lawyer shall make reasonable efforts to expedite litigation consistent with the
interests of the client); Rule 5.5(a) (a lawyer shall not practice law in a jurisdiction
in violation of any regulation of the legal profession in that jurisdiction); Rule
8.1(b) (a lawyer shall not knowingly fail to respond to a lawful demand for
information from a disciplinary authority in a disciplinary matter); Rule 8.4(a) (it is
professional misconduct for a lawyer to violate the Rules of Professional Conduct);
Rule 8.4(b) (it is professional misconduct for a lawyer to commit a criminal act
that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a
lawyer); Rule 8.4(d) (it is professional misconduct for a lawyer to engage in
conduct involving dishonesty, fraud, deceit or misrepresentation); and Rule 8.4(e)
(it is professional misconduct for a lawyer to engage in conduct that is prejudicial
to the administration of justice).
Conclusion
We accept the Agreement for Discipline by Consent and disbar Respondent from
the practice of law in this state, retroactive to March 5, 2014, the date of his interim
suspension. In addition, we impose the following conditions:
1. within thirty (30) days of the date of this opinion, Respondent shall pay the
costs incurred in the investigation and prosecution of this matter by ODC
and the Commission on Lawyer Conduct (the Commission);
2. Respondent shall complete the South Carolina Bar's Legal Ethics and
Practice Program Ethics School and Trust Account School prior to seeking
readmission;
3. within sixty days of the date of this opinion, Respondent shall enter into a
restitution agreement with the Commission for the payment of restitution in
the following amounts to the following clients, reduced by any payment
made by the Lawyer's Fund for Client Protection (Lawyers' Fund) to or on
behalf of the client, and shall repay the Lawyers' Fund for any payments it
has made to Respondent's former clients on Respondent's behalf:
(a) $1,000 to Client A;
(b) $7,000 to Client C;
(c) $300 to Client D;
(d) $3,980 to Client M;
(e) $1,500 to Client N; and
(f) $750 to Client P.
4. Respondent shall comply with the terms of the June 13, 2016 Order of
Restitution issued by the Court of General Sessions.
Within fifteen (15) 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, and shall also surrender his Certificate of Admission to the
Practice of Law to the Clerk of Court.
DISBARRED.
PLEICONES, C.J., BEATTY, KITTREDGE, HEARN and FEW, JJ., concur.