Davis Adv. Sh. No. 1
S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Fred
Henderson Moore, Respondent,
Opinion No. 24725
Heard September 16, 1997 - Filed December 16, 1997
DEFINITE SUSPENSION
Attorney General Charles M. Condon and Assistant
Deputy Attorney General J. Emory Smith, Jr., of
Columbia, for complainant.
Russell Brown, of Charleston, for respondent.
PER CURIAM: In this attorney disciplinary matter,
respondent, Fred Henderson Moore, is charged with several acts of
misconduct arising out of his representation of several of his clients. We
find respondent committed misconduct and impose a definite suspension
from the practice of law for a period of one year.
PROCEDURAL BACKGROUND
This disciplinary matter concerns several complaints filed
against respondent between March 1995 and May 1996. Respondent
denied all allegations of misconduct. A full hearing on these matters was
held on June 13, 1995, February 28, 1996, and July 24, 1996. Respondent
was represented by counsel. On January 22, 1997, the Hearing Panel
(Panel) issued its report finding misconduct and recommending a definite
suspension for three months. The Panel determined that some of the
allegations in the complaints did not constitute misconduct. The Interim
p. 3
IN THE MATTER OF MOORE
Review Committee1 (Committee) of the Board of Commissioners on
Grievances and Discipline agreed with the Panel's findings of facts and
conclusions of law; however, it disagreed with the recommended sanction.
The Committee recommended an indefinite suspension.
Both respondent and complainant filed exceptions and briefs
with this Court. Respondent claims the Panel erred in finding any
misconduct. The complainant claims the Panel erred in not finding
respondent mishandled two appeals and in not finding respondent had
engaged in a pattern and practice of neglecting legal matters entrusted to
him and incompetently representing his clients.
DISCIPLINARY VIOLATIONS
Although this Court is not bound by the findings of the Panel
and Committee, these findings are entitled to great weight, particularly
when the inferences to be drawn from the testimony depend on the
credibility of witnesses. Matter of Yarborough, Op. No. 24662 (S.C. Sup.
Ct. filed Aug. 4, 1997)(Davis Adv. Sh. No. 23 at 15). However, we may
make our own findings of fact and conclusions of law. Id. Further, a
disciplinary violation must be proven by clear and convincing evidence. Id.
We agree with the Panel's findings; however, we also find
respondent has engaged in a pattern and practice of neglecting legal
matters entrusted to him and incompetently representing his clients to
their detriment.
Clarendon County Case
In September 1993, respondent filed an action for a client in
the Clarendon County Court of Common Pleas (Clarendon County case).
Counsel for the defendants in this matter served various
discovery requests, including Interrogatories, Request for Production and
1The order adopting the new Rules for Lawyer Disciplinary
Enforcement provided that any disciplinary case in which a hearing had
been held by a hearing panel prior to January 1, 1997, would continue to
conclusion under the former Rule on Disciplinary Procedure. The Interim
Review Committee was created to fulfill the functions performed by the
Executive Committee under Paragraph 14(a) of the former Rule on
Disciplinary Procedure in those cases.
p. 4
IN THE MATTER OF MOORE
Request for Admissions, upon respondent. Except for a request for an
extension made on December 13, 1993, respondent failed to answer or
reply to any of the discovery requests and failed to return telephone calls
or reply to correspondence concerning the discovery requests. Because of
this failure to reply, the Request for Admissions were deemed admitted.
Rule 36, SCRCP. Subsequently, counsel for the defendants moved to
compel responses to the discovery. Counsel provided notice to respondent
of these motions. Respondent claimed he had assigned the discovery
portion of this case to an associate. However, respondent admitted he was
principally responsible for the file.
On May 26, 1994, the Deputy Clerk of Court for Clarendon
County prepared a non-jury roster and mailed it to all counsel who had
cases on the roster. The roster recited it was for the term of non-jury
court beginning the week of June 6, 1994, and the assigned judge would
hear motions, appeals and non-jury cases on Friday, June 10, 1994,
beginning at 9:30 a.m. There were two parts to the roster: a motions
roster and a trial roster. This case appeared on both rosters.
According to the testimony of the Deputy Clerk of Court, on
May 26, 1994, a copy of the roster was mailed to respondent at 41 Morris
Street, Post Office Box 20275, Charleston, South Carolina 29413, the
address which appeared on the Summons and Complaint. This roster was
not returned to the clerk's office by the Postal Service.
Respondent claimed he never received the roster. According to
respondent, he moved his office to 150-A St. Phillip Street in mid-
December 1993; however, respondent retained the same post office box
address. Respondent failed to notify others, including the Clarendon
County Clerk of Court and opposing counsel, of his move. As evidence
that respondent was having difficulty receiving mail during this time
period, respondent introduced a letter sent by the United States Postal
Service apologizing to its customers for misboxing and missending mail.
However, respondent offered no evidence that the Clarendon County roster
was missent or misboxed. Respondent conceded the post office box address
used by the Clerk of Court's Office was correct. Further, according to
respondent, all his mail was posted to his post office box regardless of the
mailing address used.
The Motions to Compel were heard on June 10, 1994. Counsel
for defendants was present. Respondent was not present and did not
contact the court to explain his absence. The judge granted defendants'
p. 5
IN THE MATTER OF MOORE
motions. Counsel for defendants remained in the courtroom and waited
until the case was reached on the trial roster. When the case was called,
respondent still was not present and counsel for defendants moved for
dismissal of the complaint for lack of prosecution. Defendants' motion was
granted.
After receiving the order of dismissal, respondent moved for
reconsideration and for an order to defer judgment. These motions were
denied because the judge found respondent had failed to present any
evidence to substantiate any grounds to justify vacating the previous order
of dismissal. Respondent then filed and served notice of his intent to
appeal. During the early stages of the appeal, the Supreme Court
determined the transcript had not been timely ordered by respondent and
instructed respondent to forward an original and six copies of a Motion to
Order Transcript Out of Time, along with proof of service and a $25.00
filing fee, within ten days or the appeal would be dismissed. Respondent
failed to respond. After the appeal was dismissed, respondent notified the
Supreme Court the transcript had been requested from the court reporter
in a timely fashion.
The Panel and Committee found respondent received notice
from the Clarendon County Clerk of Court scheduling the Motions to
Compel and the non-jury trial for June 10, 1994, but respondent failed to
appear, thereby violating Rule 407, SCACR, Rule 1.1 (lacked competence
in representing his client) and Rule 1.3 (failed to act with reasonable
diligence and promptness in representing a client). The Panel and
Committee also found respondent demonstrated a lack of competence in
representing his client by failing to timely order the transcript and by
failing to file a motion with the Supreme Court to order the transcript out
of time. The Panel made no findings about respondent's failure to reply to
the opposing parties' discovery requests.
We agree with the Panel's finding respondent committed
misconduct by violating Rule 407, SCACR, Rules 1.1 and 1.3 and Rule
413, SCACR, § 5(E), in the handling of the Clarendon County case by
failing to appear at the scheduled court date and by causing the appeal to
be dismissed. This misconduct severely prejudiced his client. Further, we
find clear and convincing evidence that respondent's failure to reply to
discovery requests, including the Request for Admissions, also violated
Rules 1.1 and 1.3. See Matter of Solomon, 307 S.C. 1, 413 S.E.2d 808
(1992) (finding misconduct where attorney failed to respond to requests for
admissions so they were deemed admitted and judgment was granted
p. 6
IN THE MATTER OF MOORE
against client). Although respondent testified he turned over all discovery
matters in this case to his associate, respondent retained control of the
case and it was his responsibility to ensure his associate was appropriately
responding to discovery requests. Rule 407, SCACR, Rule 5.1
(responsibilities of the supervisory lawyer).
Medical Malpractice Matter
A client retained respondent in early 1991 to represent her in
connection with a medical malpractice claim allegedly arising from
improper medical treatment following an injury the client sustained in
August 1990. The improper treatment occurred between August and
December 1990 and the client testified she was aware she had been
misdiagnosed by December 1990.
Respondent did not file suit on behalf of the client until June
27, 1994. Respondent testified he waited to file suit until he obtained an
opinion from another physician that the client's treating physician
committed malpractice. Respondent stated that he did not think the
statute of limitations would run on this cause of action until he had
obtained such an opinion.
The Panel found the statute of limitations on the client's claim
would have expired between August 1993 and December 1993. Therefore,
the Panel found respondent demonstrated a lack of professional
competence and failed to act with reasonable diligence and promptness in
representing the client in this matter. Rules 1.1 & 1.3.
We agree with the Panel's findings. Respondent's testimony at
the Panel hearing demonstrates his lack of understanding of the statute of
limitations and the discovery rule and is evidence of incompetency.
Further, respondent's delay in filing suit was fatal to his client's action.
Ford Motor Company Matter
In early 1994, respondent was retained to handle a claim
against Ford Motor Company for an incident that allegedly occ=ed on
January 17, 1994. This client alleged she received personal injuries when
she was trapped in a 1992 Ford Tempo vehicle by a faulty seat.
Both the client and respondent admitted there was not a
written contingency fee agreement in the Ford Motor Company matter and
p. 7
IN THE MATTER OF MOORE
respondent further admitted there was no written agreement in two other
matters handled by respondent on behalf of this client.
Additionally, respondent testified he recorded a conversation he
had with a relative of this client concerning the client's Ford Motor
Company claim. Respondent alleged it was his belief that the relative had
come to his office to extort money from him on behalf of this client.
Respondent claimed the relative advised him from the outset of the
meeting that he was recording the conversation and that respondent then
told the relative he was also recording the conversation. Testimony given
by respondent on cross-examination indicated respondent's recorder was on
when the relative entered his office. Mr. Robert Bernstein, a member of
the Board of Commissioners on Grievance and Discipline, testified, while
he was investigating this complaint, respondent advised him that he had
secretly recorded a conversation between himself and the relative. Mr.
Bernstein testified when he asked respondent if the individual knew he
was being recorded the respondent answered "Oh, no, they did not know."
The Panel found respondent violated Rule 1.5 because his
contingency fee agreements were not in writing. Further, the Panel found
respondent violated the Rules of Professional Conduct by improperly
recording a conversation without a party's knowledge or consent. See
Matter of Anonymous Member, 304 S.C. 342, 404 S.E.2d 513 (1991).
We agree with the Panel's findings. The evidence clearly and
convincingly supports the finding respondent failed to have written
contingency fee agreements with this client for the Ford claim and for two
other matters. This is a violation of Rule 1.5 requiring such agreements
be in writing. The evidence also supports the finding that respondent
secretly recorded a conversation with the relative because, even if
respondent's version of facts is believed, respondent's recorder was already
running when the relative entered his office. Secretly recording a
conversation violates the Rules of Professional Conduct. Id.
Bankruptcy Matter
In 1990, respondent agreed to represent a client in connection
with an employment discrimination suit against Willbrook Plantation. The
lawsuit was filed in the United States District Court, Charleston Division,
on July 5, 1990, but was not served until October 1990. Respondent later
amended this complaint to name Litchfield Company as the defendant.
Litchfield Company filed a Chapter 11 bankruptcy petition on March 15,
p. 8
IN THE MATTER OF MOORE
1991. On July 23, 1991, the U.S. District Court issued an order staying
this lawsuit.
Respondent did not file a claim on behalf of his client in the
bankruptcy proceeding. Respondent testified he was not hired by this
client to protect his interest in the bankruptcy proceeding and because the
bankruptcy matter was pending in a North Carolina court where
respondent was not licensed to practice law, he could not assist his client.
Further, respondent indicated it was his belief that once the automatic
stay was granted there was nothing he could do until the bankruptcy
proceeding was concluded and the stay lifted. Respondent admitted he
never advised his client of the need to protect his interest in bankruptcy
court.
An expert in bankruptcy matters, Mr. Bernstein, testified
respondent should have filed a claim with the bankruptcy court or asked
the bankruptcy court to lift the stay. Further, Mr. Bernstein stated
respondent was unaware he needed to file a claim. The client testified
respondent never advised him any action should be taken concerning the
bankruptcy matter.
Respondent admitted he did not have a written contingency fee
agreement with this client. According to respondent, no written agreement
was required because he requested attorney's fees as part of the damages
in the lawsuit.
The Panel found respondent failed to act with reasonable
diligence and promptness in representing this client by failing to serve the
defendant within thirty days after filing suit. Rule 1.3. Respondent
placed this client in imminent danger of having his lawsuit dismissed.
Additionally, the Panel found respondent engaged in conduct
demonstrating a lack of professional competence in the practice of law by
failing to file a claim in the bankruptcy court on this client's behalf after
receiving notice the defendant had filed for bankruptcy or by failing to
move before the bankruptcy court for release of the automatic stay. Rule
1.1. Further, the Panel found respondent did not have a written
contingency fee agreement with this client as required by Rule 1.5.2
2 We note that from the record it appears this representation was
begun before implementation of the Rules of Professional Conduct on
September 1, 1990. Under the prior disciplinary rules, the Code of
Professional Conduct, there was no requirement for the contingency fee
p. 9
IN THE MATTER OF MOORE
We agree with the Panel's findings. Respondent risked
dismissal of his client's lawsuit because he delayed the service of the
complaint. See Rules 1.1 & 1.3. Further, in our opinion, respondent
should have attempted to protect this client's interest in the bankruptcy
proceeding. Even though this client did not specifically instruct
respondent to protect his interest, respondent undertook this responsibility
when he agreed to represent the client in the employment discrimination
lawsuit. Rules 1.1 & 1.3.
Alleged Mishandling of Appeals
The complainant contends the Panel erred in not finding
misconduct by respondent in his handling of two appeals. Specifically, the
complainant claims respondent acted without diligence and competence in
handling these appeals and respondent attempted to mislead this Court
with respect to one of the appeals. Rules 1.1, 1.3 & 3.2 (misleading a
tribunal).
In April 1994, respondent filed an appeal on behalf of a client
(First Appeal). Respondent failed to serve and file the Appellant's Initial
Brief and Designation of Matter, thereby resulting in dismissal of the
appeal on May 10, 1994. On June 9, 1994, respondent's petition to
reinstate the appeal and for an extension of time to file the Initial Brief
and Designation of Matter was granted. Subsequently, this appeal was
dismissed on August 24, 1994, due to respondent's failure to provide proof
of service of the Record on Appeal. Respondent's petition for
reinstatement was denied and the appeal was dismissed on October 7,
1994.
Respondent testified he was unable to proceed with this appeal
because his client was unable to provide him with the funds necessary to
print the Initial Brief and Designation of Matter. Respondent claimed his
client promised to provide the funds but never did. Respondent testified
he could not afford to pay the costs of printing the appeal documents from
his own personal funds. However, respondent's petitions for reinstatement
make no mention of his client's inability to pay.
agreement to be in writing. DR 2-106, Rule 32, S.C. Sup. Ct. Rules
(repealed 1990). Therefore, the Panel erred in finding respondent
committed misconduct by not having a written fee agreement with this
client.
p. 10
IN THE MATTER OF MOORE
In a separate appeal filed by respondent (Second Appeal), on
May 8, 1995, respondent filed a Motion to Enlarge Time to File Initial
Brief and Record on Appeal with the Supreme Court. In this motion,
respondent stated he had experienced a delay in providing the court
reporter with funds for the transcript. The Court denied respondent's
motion on June 19, 1995, and directed respondent to pay the court
reporter within five days. The Court allowed respondent thirty days to file
his Initial Brief after receipt of the transcript. Respondent actually
received the transcript on or about June 14, 1995. On July 14, 1995,
respondent filed a second Motion to Enlarge Time to File Initial Brief and
Record on Appeal with the Supreme Court. In that motion, respondent
stated he had not previously requested an extension of time for the filing
of his Initial Brief and Record on Appeal. The Supreme Court granted
this motion and appeal in this case was still pending before the Court as
of the date of hearings before the Panel.
Respondent testified when he filed the July 14, 1995 motion, it
was his belief the Court had treated his May 8, 1995 motion as a motion
to extend time to order the transcript; therefore, he did not mislead the
Court.
As to the First Appeal, the Panel found respondent's testimony
credible and found it was not the duty of respondent to finance the costs
of his client's appeal. The Panel recommended dismissal of this matter.
As to the Second Appeal, the Panel found no intent on the part of
respondent to mislead the Supreme Court, and therefore, recommended
dismissing this portion of the complaint.
In our opinion, the Panel was correct in dismissing these
matters. The Panel is in the best position to judge the credibility of its
witnesses; therefore, this Court respects its finding of credibility on behalf
of respondent concerning these appeals. Yarborough, supra. Although we
do not find misconduct in respondent's handling of the two appeals,
respondent's handling of the appeals demonstrates a lack of diligence in
that respondent delayed requesting extensions until the last minute or
until after the appeal had been dismissed.
Pattern and Practice of Neglect
The complainant contends respondent's acts of misconduct
demonstrate a continuing lack of diligence and competency. We agree.
p. 11
IN THE MATTER OF MOORE
Neither the Panel nor the Committee found respondent had
engaged in a pattern of neglecting legal matters and incompetently
representing his clients. However, in our opinion, considering the entire
record, the evidence clearly and convincingly shows a pattern of neglecting
legal matters and incompetently representing his clients to their
detriment.
SANCTION
The authority to discipline an attorney and the manner in
which the discipline is given rests entirely with the Supreme Court.
Matter of Hines, 275 S.C. 271, 269 S.E.2d 766 (1980).
The Panel recommended a three month suspension.3 The
Committee recommended an indefinite suspension. These
recommendations were based upon the findings of lack of diligence,
incompetence, failure to have a written retainer agreement, improperly
recording a conversation and the fact that respondent had been disciplined
in the past.4
Incompetence is subject to sanction by this Court. Matter of
Warder, 316 S.C. 249, 449 S.E.2d 489 (1994) (public reprimand for
incompetence as well as neglect). Further, secretly recording a
conversation is subject to sanction. See Matter of Anonymous Member,
supra. The appropriate sanction for neglect of several client matters
generally is a public reprimand provided the clients are not greatly
prejudiced. Matter of Alexander, 301 S.C. 212, 391 S.E.2d 254 (1990);
Matter of Gates, 295 S.C. 516, 369 S.E.2d 841 (1988). However, when the
client is prejudiced and the attorney refused to cooperate with the Board's
investigation, the sanction imposed has been as great as a one year
suspension. See Matter of Acker, 308 S.C. 338, 417 S.E.2d 862 (1994) (six
month suspension); Matter of Palmer, 298 S.C. 324, 380 S.E.2d 813 (1989)
(one year suspension); Matter of Ballard, 312 S.C. 227, 439 S.E.2d 846
3 The Panel noted ordinarily the violations committed by respondent
would only merit a public reprimand.
4Respondent received an indefinite suspension for trust account
violations, Matter of Fred Henderson Moore, 280 S.C. 178, 312 S.E.2d 1
(1984), reinstatement granted, 298 S.C. 13, 377 S.E.2d 922 (1989); and a
public reprimand for neglecting several legal matters, Matter of Moore,
275 S.C. 280, 269 S.E.2d 771 (1980).
p. 12
IN THE MATTER OF MOORE
(1994) (one year suspension).
While there is no suggestion respondent failed to cooperate
with the investigation, respondent's clients were severely prejudiced. As a
result of respondent's neglect and incompetency, the verdict was directed
against his client and his client's appeal was dismissed in the Clarendon
County case and the statute of limitations expired in the malpractice
claim. Further, in our opinion, the facts demonstrate a detrimental
pattern of neglect and incompetency. Therefore, we find the appropriate
sanction is a suspension from the practice of law for one year.
Respondent shall file, within fifteen (15) days of this opinion,
an affidavit with the clerk of this Court stating he has complied with
Paragraph 30 of Rule 413, SCACR.
DEFINITE SUSPENSION.
C.J.
A.J.
A.J.
A.J.
A.J.
p. 13