S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Fred
Henderson Moore, Respondent.
Opinion No. 25172
Heard May 23, 2000 - Filed July 17, 2000
DISBARRED
Russell Brown, of Charleston, for respondent.
Assistant Deputy Attorney General J. Emory Smith,
Jr., of Columbia, for the Office of Disciplinary
Counsel.
PER CURIAM: In this attorney grievance matter, respondent
committed misconduct relating to his escrow account and failed to timely
pay a medical provider.
FACTS
Respondent had an agreement with Dr. Themy Chakeris whereby
respondent would send clients to Dr. Chakeris and respondent would pay .
their medical bills upon settlement of their legal actions. The Panel 1 found
respondent had failed to pay Dr. Chakeris a total of $35,750 from fifty-four
settlements. 2 When Dr. Chakeris demanded payment, respondent did not
1 The full Panel adopted the Sub-panel's report on December 24, 1999.
2 Dr. Chakeris's attorney testified that respondent has since paid Dr.
Chakeris all that is owed to him. In fact, the final payment was received the (2 continued....)
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In the Matter of Moore
have the funds in his escrow account to pay him. Respondent eventually
paid Dr. Chakeris through installments. The Panel also found respondent
disbursed money to himself on many occasions from his escrow account. The
canceled checks did not have notations on them. Respondent claimed that
the disbursements were attorney's fees and also some of his own personal
money. He testified that he had deposited proceeds from the sale of some of
his property and had intended to make payments to his ex-wife through his
escrow account so that he would have some documentation of the payments.
Respondent testified his escrow account problems stemmed from
forgeries and embezzlement of the escrow account by a former law partner.
The Panel found respondent had failed to prove the allegations of
embezzlement were the cause of respondent's failure to pay Dr. Chakeris or
properly maintain his escrow account. Further, the Panel found if the
embezzlement involved only attorney's fees, as respondent testified, then the
money from the settlements which should have been paid to Dr. Chakeris
would have been in the escrow account. The Panel found respondent lacks
an appreciation of the duties and responsibilities associated with keeping an
escrow account and recommended disbarment.
There is also a procedural issue which the Office of Disciplinary
Counsel (ODC) has raised. The initial complaint was filed on January 30,
1998. Respondent filed an answer on March 4, 1998. A supplemental
complaint was filed on July 24, 1998. Respondent failed to answer and the
ODC filed an affidavit of default on the supplemental charges on September
14, 1998. On September 18, 1998, respondent filed an answer denying the
allegations. At the Panel hearing held on October 7, 1999, respondent
moved to be allowed to answer and not be deemed in default. The Panel
ruled that respondent should be allowed to answer. The hearing then began
but only the allegations in the initial complaint were tried because the ODC
did not bring its witnesses for the allegations in the supplemental complaint.
After the hearing, the Panel issued a written report on March 3, 1999,
granting respondent's request to file an untimely answer and explaining its
reasons for allowing respondent to answer. 3 The ODC filed an exception to
(2 continued...)day of the Panel hearing.
3 The Panel did not want to punish respondent for what it viewed as
respondent's attorney's negligence in failing to timely answer and the fact
that the ODC was not prejudiced by allowing respondent to answer.
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In the Matter of Moore
the Panel's failure to hold respondent in default. The ODC wants us to
decide if a respondent can be allowed to file an answer after the time to
answer has expired.
DISCUSSION
We may make our own findings of fact and conclusions of law and are
not bound by the Panel's recommendation. Burns v. Clayton, 237 S.C. 316,
117 S.E.2d 300 (1960). While we are not bound by the findings of the Panel,
their findings are entitled to great weight. Id. We must administer the
sanction we deem appropriate after a thorough review of the record. In re
Kirven, 267 S.C. 669, 230 S.E.2d 899 (1976).
In the matter of improperly using his trust account and insufficient
recordkeeping, we find respondent violated Rule 1.15, of Rule 407, SCACR,
by commingling funds and using the trust account for personal purposes and
Rule 417, SCACR, by failing to maintain trust account records. Respondent
contends that since Rule 417, was not adopted until January 1, 1997, after
respondent's misconduct, he could not have violated that rule. 4 We disagree.
Respondent testified that he wrote checks out of his escrow account in
February 1997 for personal reasons and without notations on them. 5
Clearly, respondent violated Rule 417 after it was enacted. 6
We recently held that "[w]hen disciplinary counsel presents clear and
convincing evidence of trust account violations or other inadequate
4 Under Rule 417, effective January 1, 1997, a lawyer must keep
adequate records showing the date, source or payee, and description of each
deposit and disbursement in any bank account which affects the lawyer's
practice of law.
5 The misconduct involving the failure to pay Dr. Chakeris took place
prior to January 1, 1997.
6 We recently held that an attorney has always been charged with a
special responsibility in maintaining and preserving the integrity of trust
funds. In re Miles, 335 S.C. 242, 516 S.E.2d 661(1999) (definite suspension
for six months for failing to timely pay medical provider) (citing In re
Padgett, 290 S.C. 209, 349 S.E.2d 338 (1986) (suspending attorney who
failed to maintain adequate records in a single case)).
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In the Matter of Moore
recordkeeping, a lawyer's records must be sufficiently detailed to overcome
the allegations." Miles, 516 S.E.2d at 663. Here, respondent has failed to
show adequate recordkeeping to overcome the ODC's allegations. As noted
by the Panel, the allegations of forgery and embezzlement would not explain
respondent's failure to keep proper records and documentation, to make
notations on the checks, or to pay Dr. Chakeris.
As for the default issue raised by the ODC, we hold the Panel has the
authority to allow a respondent to answer even though the time to answer
has expired. Rule 23, RLDE, provides "[t]he respondent shall file a written
answer with the Commission and serve a copy on disciplinary counsel within
30 days after service of the formal charges, unless the time is extended by
the hearing panel." The ODC contends that upon the expiration of the thirty
days, there is no authority for an extension. We disagree.
The hearing Panel has the authority pursuant to Rule 9, RLDE, which
states "the South Carolina Rules of Civil Procedure apply in lawyer
discipline and incapacity cases." Rule 55(c), SCRCP, provides that "[f]or good
cause shown the court may set aside an entry of default and, if a judgement
by default has been entered, may likewise set it aside in accordance with
Rule 60(b)." The standard for setting aside an entry of default is whether
"good cause" exists under Rule 55(c), whereas the standard to set aside a
judgment of default is "excusable neglect" under Rule 60(b). 7
The Supplemental Complaint was filed on July 29, 1998. Respondent
did not timely answer. At the Panel hearing on October 7, 1998, respondent
moved to be allowed to answer which is well within the year time limit of
Rule 60. Accordingly, we hold the Panel had the authority to allow
respondent to answer and the Supplemental Complaint should now go
forward.
Respondent has an extensive prior disciplinary record: private
reprimand on May 5, 1972; public reprimand on September 4, 1980, for
neglect of several legal matters; indefinite suspension on January 24, 1984,
for trust account violations; suspension February 2, 1994, for failure to pay
bar fees; private reprimand on October 31, 1995; suspension on February 9,
7 We note Rule 55(c), SCRCP, should be liberally construed so as to
promote justice and dispose of cases on the merits. In re Estate of Weeks,
329 S.C..251, 495 S.E.2d 454 (Ct. App. 1997).
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In the Matter of Moore
1994, for failure to meet CLE requirements; and definite suspension for one
year on December 16, 1997, for incompetence and neglect. Accordingly,
respondent is hereby disbarred for his misconduct. 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.
DISBARRED.
s/ Jean H. Toal C.J.
s/ James E. Moore J.
s/ John H. Waller, Jr. J.
s/ E.C. Burnett, III J.
s/ L. Henry McKellar A. J.
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