Davis Adv. Sh. No. 27
S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Terry A. Trexler, Respondent.
Opinion No. 24693
Heard August 18, 1997 - Filed September 22, 1997
PUBLIC REPRIMAND
John C. Land, III, of Land, Parker & Reaves, P.A., of Manning, for
Respondent.
Charles Molony Condon, Attomey General, and James G. Bogle, Jr., Senior
Assistant Attomey General, both of Columbia, for Complainant.
PER CURIAM: In this disciplinary matter, two complaints have been filed against
Terry A. Trexler ("Attorney").
Borden Matter
In May 1994, Attorney was representing Tammy Finkbeiner against Kelly
Timmons. Finkbeiner's case was called by the family court on May 31, 1994 at 2:45 p.m.
At the hearing, the court inquired whether the defendant Kelly Timmons had been served.
Attorney submitted an affidavit of personal service, signed by a process server, stating the
pleadings had been left with Angela Timmons at 4460 Nazarene Church Rd., Sumter,
S.C. The affidavit was notarized by Attorney. The hearing was adjourned after the court
found that service of process was insufficient (because there had been no indication that
Angela Timmons was a person of discretion residing at 4460 Nazarene Church Rd.).
At 3:00 p.m. on the same day, the family court case of Shirl Ann Borden v.
Raymond Borden, Jr. was called. Attomey represented the plaintiff. The affidavit of
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personal service had stated that the pleadings had been left with Evelyn B. Garrett at 1831
Pinewood Rd., Sumter, S.C. Attorney was the notary on the affidavit. During the break
between the two hearings, Attorney had added to the affidavit, "Mr. Raymond Borden, Jr.
resides with Evelyn B. Garrett at this address." At the second hearing, the court asked
Attorney whether he had just added these words to the affidavit, to which Attorney
responded that he had. The court refused to hear the matter.
Before the Panel, Attorney testified that between the hearings he had gone outside
the courtroom where the process-server was standing. There, he added to the notarized
affidavit, with the process-server's permission, the words "Mr. Raymond Borden, Jr.
resides with Evelyn B. Garrett at this address."
The complaint filed against Attomey alleged that he had committed misconduct in
violating the Rules of Professional Conduct, Rule 407, SCACR, specifically Rule 3.3 and
Rule 8.4. In his answer, Attomey admitted the allegations against him, but denied that his
actions constituted misconduct. The Panel concluded that the misconduct charged in the
complaint had been proved by clear and convincing evidence. It specifically found that
Attomey had violated Rule 3.3 (a lawyer shall not knowingly make a false statement of
material fact or law to a tribunal); and Rule 8.4 (it is unprofessional misconduct for a
lawyer to engage in conduct that is prejudicial to the administration of justice).
Harvey Matter
Attorney represented Eleanor Harvey in an action to recover damages from a
construction company that had performed work on Harvey's residence. The case was set
to be heard before a Master in Equity on March 3, 1994, at 10:00 a.m. Attorney failed to
appear for the hearing, and the action was dismissed under former Rule 40(c)(3), SCRCP.
Attorney had called the Master's office before the scheduled hearing, but had not left
any message with the answering service.
There is no indication that Attorney requested a rehearing, moved to restore, or
appealed the dismissal. Attorney did not inforrn Harvey that he had missed the hearing or
that the matter had been dismissed, but told her that the Master had decided the case was
frivolous and should be settled out of court. On July 25, 1994, Attorney refiled the same
action. The matter was dismissed in December 1994 on the basis of the running of the
statute of limitations. Attorney did not inform Harvey of the dismissal.
Some time later, Harvey called Attorney to ask about the status of her case. He
indicated that he was still waiting for the court. Unexpectedly, a few weeks later, Harvey
received a settlement offer of $ 10,000.00 from Attorney. In her testimony before the
Panel, in response to the question whether the $10,000.00 had made her whole, Harvey
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stated, "I accepted that." She signed a release. As a result of the second action that
Attorney filed, the defendants filed a counterclaim against Harvey. Attorney paid
$2000.00 out of his own funds to settle this counterclaim.
The complaint alleged that Attorney violated Rules 1.1, 1.3, and 1.4 of Rule 407,
SCACR. As to the Harvey matter, Attorney fully admitted the allegations of professional
misconduct against him. The Panel concluded that all three Rules had been violated:
Rule 1.1 (a lawyer shall provide competent representation to a client); Rule 1.3 (a lawyer
shall act with reasonable, diligence and promptness in representing a client); and Rule 1.4
(a lawyer shall keep a client reasonably informed about the status of a matter and
promptly comply with reasonable requests for information).
Thomason Matter
Attorney represented Henry Thomason and Eugene Makovitch in an action that
had been brought against them. The plaintiff had been attacked by several dogs.
Thomason and Makovitch each owned a dog involved in the attack. Attorney was
retained first by Thomason, and then by Makovitch. Thomason testified that Attorney did
not discuss the potential for a conflict of interest as a result of Attorney's joint
representation of Thomason and Makovitch.
He advised both of them that they would be liable. A settlement was negotiated,
and both Thomason and Makovitch signed a confession of judgment for $20,000.00.
After supplemental proceedings on the judgment were instituted, Makovitch settled for
$3,000.00 and a tract of land.
In the complaint against Attorney, it was alleged that he violated Rule 1.7(a),
which prohibits representation of clients where the interest of one client would be directly
adverse to the interest of another. Attorney fully admitted the allegations of professional
misconduct against him. The Panel found that Rule 1.7 was violated; however, the result
reached by Attorney was good for both parties. It concluded that the interests of the
clients were not actually harmed.
Sanction
The Panel recommended a sanction of public reprimand. The Interim Review
Committee adopted the Panel's findings of fact and conclusions of law, but disagreed with
the recommended sanction. By a vote of 3 to 2, the Committee recommended Attorney
be suspended for ninety days. Two members of the Committee voted for a seven month
suspension. We agree with the conclusion of the Panel and impose a public reprimand.
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In relation to the Borden matter, Attorney testified, and the process-server
confirmed, that Attorney added the words to the affidavit in the process-server's presence
and with his permission. This evidence was uncontradicted. Moreover, at the hearing,
when the court asked Attorney if he had added the words to the affidavit, Attorney
truthfully responded that he had. Thus, we do not see how Attorney has made a false
statement to a tribunal. This is in contrast to other cases where sanctions have been
imposed upon attomeys for submitting affidavits that were false in substance or in the
formalities of signing. See In re Jack Francis McGuinn, 272 S.C. 366, 252 S.E.2d 122
(I 979)(attorney publicly reprimanded where he signed his secretary's signature as notary
public on two affidavits submitted to a court); In re John E. Bishop, 263 S.C. 289, 210
S.E.2d 235 (1974)(attorney publicly reprimanded where he submitted an affidavit that
was false in certain material particulars). Hence, we do not find misconduct as to the
Borden matter and dismiss this complaint.
In connection with the Harvey matter, the following cases are somewhat
analogous:
In In re Randall Edward Palmer, 289 S.C. 264, 346 S.E.2d 23 (1986), the attorney
misrepresented to a client on a number of occasions that her case was proceeding and that
he had finally settled the matter for $30,000.00. The client incurred major expenses in
reliance on attorney's representation that he had received the settlement check. When she
did not receive the proceeds, she hired another attorney who discovered that no lawsuit
had ever been filed and that the statute of limitations had run on the matter. We disbarred
Palmer for this and other misconduct. In In re Gary Michael Wood, 278 S.C. 431, 298
S.E.2d 89 (1982), the Court indefinitely suspended an attorney who had failed to file a
verified claim in a personal injury action against a governmental agency, leading to the
claim being dismissed. The client's signature verifying the complaint, notarized by the
attorney, was a forgery. Additionally, in another matter, the attorney had altered a deed
so that the mortgage would no longer secure the debt; he took advantage of this in a
subsequent foreclosure action.
An eighteen month suspension was imposed in In re M.M. Weinberg, III, 317 S.C.
300, 454 S.E.2d 316 (1995). The attorney's misconduct occurred in the course of a
number of matters in which he failed to bring a lawsuit or failed to serve a requested
notice of appeal. He misrepresented to clients that he had instituted an action or appeal
on their behalf or settled the case when he had not. In In re Alan Joel Davis, 276 S.C.
532, 280 S.E.2d 644 (1981), the attorney represented to at least five different clients that
he had brought actions on their behalf when, in fact, he had never filed suit. These
misrepresentations caused extensive delays, up to four years. In two other instances, he
failed to act, causing a delay in one case of 8 ½ years. Three justices on the Court voted
to publicly reprimand Davis.
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These cases obviously illustrate the wide range of sanctions the Court has imposed
for conduct of this nature. Although Attorney's misconduct is very serious, it appears less
reprehensible than those forming the basis of the sanctions in Palmer, Wood, Weinberg,
and Davis. To his credit, Attorney did out of his own pocket offer to Harvey $ 10,000.00,
an amount which she found acceptable; additionally, he settled the counterclaim at no
cost to her.
In relation to the Thomason matter, In re Anonymous Member of the S.C. Bar, 315
S.C. 141, 432 S.E.2d 467 (1993) is relevant. In that case, we dismissed the action where
the attorney undertook to represent clients with adverse interests, but where the conflict of
interest issues were explained to one client, and the other client dismissed the attorney
before the attorney had an opportunity to advise him of the conflict.
In the present case, there could have existed a conflict of interest1 between
Attorney's two clients, given that both had dogs in the attack. The proper course would
have been for Attorney to have secured the clients' consent before jointly representing
them. It does not appear, however, that the clients were prejudiced as a result of the joint
representation, as favorable settlements were ultimately secured for both.
In sum, we conclude that an appropriate sanction in this case is a public reprimand.
Although we are very concemed by Attorney's actions, we take into account the factors of
his complete admission, his inexperience, and the lack of prejudice to his clients.
Attorney fully admitted the charges against him. Moreover, these incidents occurred at
the very start of Attorney's career when he immediately began, out of law school, a solo
1 Rule 1.7 provides:
(a) A lawyer shall not represent a client if the representation of that client
will be directly adverse to another client, unless:
(1) The lawyer reasonably believe[s] the representation will not
adversely affect the relationship with the other client; and
(2) Each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client
may be materially limited by the lawyer's responsibilities to another client.
. . .
The Comments to this Rule declare that paragraph (a) prohibits "representation of
opposing parties in litigation"; whereas, paragraph (b) governs "[s]imultaneous
representation of parties whose interests in litigation may conflict, such as coplaintiffs or
codefendants." It would appear that Attorney's misconduct in the present case would fall
under (b); however, the complaint against him alleges violation of (a). Nevertheless,
Attorney has admitted the allegations against him.
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private practice. Additionally, we observe that the clients in these matters were not
harmed by Attorney's misconduct.
Accordingly, Terry A. Trexler is hereby publicly reprimanded.
PUBLIC REPRIMAND.
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