Moore, Matter of

• Decision Date: 24 January 1984
• Docket Number: No. 22036,22036
• Citation: 280 S.C. 178,312 S.E.2d 1
• Court: South Carolina Supreme Court
• Parties: In the Matter of Fred Henderson MOORE and Edward M. Brown, Respondents.

Page 1

312 S.E.2d 1

280 S.C. 178

In the Matter of Fred Henderson MOORE and Edward M. Brown,

Respondents.

No. 22036.

Supreme Court of South Carolina.

Jan. 24, 1984.

Atty. Gen. T. Travis Medlock and Asst. Atty. Gen. Clifford O. Koon, Jr., Columbia, for complainant.

Morris D. Rosen and William H. Grimball, Charleston, for respondents.

PER CURIAM:

This is an attorney grievance matter dealing with the misuse of an attorneys' trust account. Respondent Fred Henderson Moore and Respondent Edward M. Brown are partners practicing law in the city of Charleston. Respondent Moore has been at the bar for more than twenty years and Respondent Brown has been practicing for approximately five years.

Respondent Moore has previously been before this Court in a disciplinary matter resulting in a finding of misconduct and a public reprimand, wherein this Court said:

The record before us indicates several instances of the respondent's neglect concerning real estate title work for his clients. Such disregard constitutes neglect of a legal matter entrusted to him in violation of DR 6-101(A)(3), and warrants imposition of a public censure. In the Matter of Moore, 275 S.C. 280, 269 S.E.2d 771 (1980).

The complaint which brings the current matter to the Court charged:

... that the Respondents had allowed checks to be issued on their client trust accounts which were returned for insufficient funds; that the Respondents had failed to maintain the integrity of their clients' funds in these trust accounts; that the Respondents had failed to, or had been unable to account for their clients' funds in the trust accounts; that the Respondents had made improper withdrawals from the trust accounts; and that the Respondents had generally misapplied and misappropriated their clients' funds held in the client trust accounts.

The evidence was taken before a hearing panel resulting in a recommendation, by a two to one vote, that both respondents be permanently disbarred from the practice of law, with one member voting that both respondents be indefinitely suspended. The action of the Panel was reviewed by the Executive Committee of the Board of Commissioners on Grievances and Discipline. It accepted the Panel's findings of fact and conclusions of law. Its independent recommendation as to sanction was that Respondent Moore be indefinitely suspended from the practice of law and that Respondent Brown be publicly reprimanded.

Rule 8 C of this Court's Rules on Disciplinary procedure provides as follows:

C. A person who, having been publicly reprimanded for misconduct, is thereafter found guilty of subsequent misconduct, shall be suspended for an indefinite period from the office of attorney at law, or permanently disbarred, depending upon the seriousness of such misconduct.

While this rule mandates at least indefinite suspension for Moore, this case would independently require this sanction.

The report of the Hearing Panel is abundantly substantiated by the record. From it, we quote:

... the Attorney General [who is charged with prosecuting these actions] proved that on numerous occasions between October 1980 and March 1981, Respondents' clients' funds had been placed in these trust accounts, but that thereafter there were insufficient funds in these accounts to pay the clients their share of the funds from these accounts.

Many examples were shown where the Respondents received funds from their clients, and several days thereafter, but before any funds were dispersed to these clients, the balance in these trust accounts was far below that necessary to cover checks that were to have been issued to these clients. The Attorney General also proved that when clients' funds were placed in these accounts, but before disbursement of the clients' share, these client funds were frequently disbursed or substantially reduced by the withdrawal by the Respondents or employees of the Respondents. The Respondents withdrew these funds for purposes of meeting their payroll; paying themselves their weekly draw; payment of bills and expenses of Respondents' law office; payment of expenses for cases that had not yet been settled; and for payments to employees. Additionally, the Attorney General proved that by January 30, 1981, the Respondents had at least constructive notice that their client trust accounts, at South Carolina National Bank was [sic] substantially depleted of funds without their clients having received their share of these funds because the Respondents had then received notice that there were two checks from this account returned to payees for lack of sufficient funds.

The panel exonerated the Respondents from splitting fees with laymen, but incident thereto said:

... that the Respondents' use of the client trust accounts to pay funds directly to laymen at times when there were insufficient funds to account to their clients, constitutes misconduct by way of misapplication and misappropriation of their clients' funds. Moreover, the Panel finds that there was, generally speaking, a total absence of proper procedures regarding Respondents' clients' funds.

....

But here, the facts revealed that the Respondents were paying themselves, making payments to their payroll account, paying other parties, and their office expenses with their clients' money. This activity, regardless of who received the checks was improper and constituted a...