Golden, Matter of, 24747

• Citation: 329 S.C. 335,496 S.E.2d 619
• Decision Date: 08 July 1997
• Docket Number: No. 24747,24747
• Parties: In the Matter of Harvey L. GOLDEN, Respondent. . Heard
• Court: United States State Supreme Court of South Carolina

Page 619

496 S.E.2d 619

329 S.C. 335

In the Matter of Harvey L. GOLDEN, Respondent.

No. 24747.

Supreme Court of South Carolina.

Heard July 8, 1997.

Decided Jan. 19, 1998.

J. Mark Taylor, of Kirkland, Wilson, Moore, Allen, Taylor & O'Day, P.A., West Columbia; David H. Wilkins, of Wilkins & Madden, P.A., Greenville; and John P. Freeman, Columbia, for Respondent.

Attorney General Charles Molony Condon and Senior Assistant Attorney General James G. Bogle, Jr., Columbia, for Complainant.

PER CURIAM

In this attorney grievance matter, the Respondent Harvey L. Golden ("Attorney") is alleged to have committed misconduct by making gratuitously insulting, threatening, and demeaning comments in the course of two depositions. It is alleged that Attorney's conduct violated Rules 4.4 and 8.4 of [329 S.C. 336] the Rules of Professional Conduct, Rule 407, SCACR, and section 5 of the Rule of Disciplinary Procedure, former Rule 413, SCACR. Attorney denies any misconduct. He contends his actions during the depositions were reasonable and necessary to obtain responses from hostile witnesses. Attorney further asserts his comments after one deposition were merely intended to be humorous.

Two members of the hearing Panel found misconduct as alleged and recommended attorney be privately reprimanded for misconduct; one Panel member recommended the matter be dismissed. The Interim Review Committee unanimously adopted the findings of fact and conclusions of law set forth in the majority's Panel Report. As to the sanction, all committee members participating ¹ recommended some form of public sanction. Three voted that Attorney be suspended from the practice of law for thirty days; three voted that he be publicly reprimanded. After hearing arguments of counsel, reviewing the record, including the court reporter's tape recording of one of the depositions, and considering the applicable law, we find the appropriate sanction is a public reprimand.

FACTS

Smith Deposition

Attorney represented Mrs. Doe in a divorce action. ² Pursuant to a temporary order, Mrs. Doe was receiving alimony. Attorney advised Mrs. Doe she could jeopardize her alimony if she had a boyfriend prior to her divorce. Mrs. Doe ended her relationship with Mr. Smith, apparently as a result of this advice. Thereafter, Mr. Smith contacted Mr. Doe's attorney and informed her he was having an adulterous relationship with Mrs. Doe. Based on this information, Mr. Doe filed a motion to terminate Mrs. Doe's alimony. Attorney noticed Mr. Smith's deposition.

In December 1994, Attorney deposed Mr. Smith. Smith was not represented by counsel at the deposition. He was a retired We have reviewed both the written transcript and the audio recording of the deposition. The following are a few examples from the deposition transcript that illustrate Attorney's conduct at the deposition:

school teacher who had been hospitalized for emotional problems on six occasions within the previous fifteen years. He suffered from several disabilities including injuries to his lower back as the result of an automobile accident, debilitating migraine headaches, and bipolar affective disorder for which he was being treated with a series of psychotropic medications. The witness's physical and mental disabilities were fully known to Attorney who agreed that Smith was not mentally well.

(1) [Attorney]: And who was your lawyer in your first divorce?

[Smith]: Me.

[Attorney]: Was that because you are cheap or you think you are smart enough to be your own lawyer? Is that what you think?

[Smith]: What kind of a question is that?

[Attorney]: Its a good question.

(2) [Attorney]: I don't need criticism from you. You ain't nearly as good as I am about answering questions or asking them. Just answer my questions, mister.

(3) [Attorney]: Don't get snide with me. Just answer my questions or you are going to be in severe difficulty, especially if you make me angry at you. I'm not going to try to get angry with you. Just answer my questions.

(4) [Attorney]: You are coming across as an absolutely ridiculous person. But that's okay, you will learn the hard way.

(5) [Attorney]: You are not smart enough to question my questions. You are not smart enough to even answer my questions. But do the best you can.

(6) [Attorney]: Do you understand English? I speak real clear English.

(7) [Attorney]: You--you must understand that this is not just a test of your telling the truth, this is also a test of your reasonableness. And whether you flunked or not is not going to be subject of my discussion here at this time.

(8) [Attorney]: And if you keep your mouth shut I might get on to [the] next question.

(9) [Attorney]: You are going to jail if you are an obstructionist in this State here, and especially if you are lying.

(10) [Attorney]: Well, I am not going to argue with you. You are not smart enough to argue with.

(11) [Attorney]: No, you don't tell me how to ask questions. We just take your answers down and we'll deal with you with the judge. See, and then we will see how smart you are.

(12) [Attorney]: You are just not smart enough to know what a restraining order is.

(13) [Attorney]: So you think it is your scintillating personality that caused him to want to play chess with you?

(14) [Attorney]: And when was that?

[Smith]: When was that? It was more than once. The first night was New Years Eve.

[Attorney]: What year?

[Smith]: It was, it was the New Years Eve we left the party.

[Attorney]: What year?

[Smith]: I would say it was January 1st 1994 was the first time we ever did it.

[Attorney]: 1994?

[Smith]: Uh-huh. (Indicating yes).

[Attorney]: That's not New Years Eve. January first is not New Years Eve.

[Smith]: I know but see the clock goes through 12:00. And when it goes past twelve then it is the next day, which makes it January 1st.

[Attorney]: And no longer New Years Eve, is it?

(15) [Attorney]: Did you fight them?

[Smith]: Huh?

[Attorney]: Did you fight them?

[Smith]: No, I didn't fight them.

[Attorney]: Okay. So they didn't need five, they just needed one, right?

[Smith]: I bit one.

[Attorney]: Why did you bite him?

[Smith]: 'Cause I was hungry.

[Attorney]: Okay. Where did you bite him?

[Smith]: (sigh) He had his foot--

[Attorney]: Where did--

[Smith]: --in my--

[Attorney]: I didn't say why. I--

[Smith]: Okay.

[Attorney]: --Asked you where did you bite him?

[Smith]: Okay. Somewhere around his ankle. It was right on top of my face.

[Attorney]: Uh-huh. And was that because you were trying to fight them?

[Smith]: If you had been there I would probably bite you, too.

[Attorney]: No, I'd shoot you before you could bite me.

[Smith]: Oh.

[Attorney]: Guaranteed. Guaranteed.

(16) Attorney referred to Smith, who had been a patient at Charter Hospital, as an "inmate" of the hospital.

(17) Smith injured his back moving a box of books while preparing for the school year. Attorney asked Smith, who was a teacher, if he was the janitor:

[Attorney]: You are not a janitor, are you?

[Smith]: Huh?

[Attorney]: You are not the janitor, are you?

[Smith]: Gee, now what kind of question was that?

....

[Attorney]: ... When you said you get the desks in order, that's something for the janitor to do, get the desks in order?

Attorney testified the purpose of Mr. Smith's deposition was to destroy Mr. Smith's credibility. He denied he had any intent to embarrass, delay, or otherwise burden Mr. Smith, or to pollute the administration of justice. Attorney admitted he made some mistakes in the deposition. For instance, he stated he allowed Mr. Smith to "get to him" and admitted he should have set the tone for the deposition.

Jones Deposition

In May 1994, Attorney, who was representing Mr. Jones, deposed Mrs. Jones, the adverse party in a domestic proceeding. Mrs. Jones's attorney was present during the course of her deposition, although some of the alleged comments by Attorney took place off the record when her attorney was not present.

The grievance complaint alleged that after the deposition, Attorney stated to Mrs. Jones: "You are a mean-spirited, vicious witch and I don't like your face and I don't like your voice. What I'd like, is to be locked in a room with you naked with a very sharp knife." Thereafter, it is alleged that Attorney said: "What we need for her [pointing to Mrs. Jones] is a big bag to put her in without the mouth cut out."

At the Panel hearing, Mrs. Jones testified as follows regarding Attorney's comments after the deposition:

... It was at the end, and the court reporter was beginning to put her things away. [Attorney] pushed all of his papers at me like that, and he leaned across the table, and he pointed his finger, and he said, "You are a meanspirited, vicious witch, and I don't like your face, and I don't like your voice, and what I want," and at that point he stood up, and he screamed, "What I want is to be locked in a room naked with you with a sharp knife," and I said, "Naked?" He said, "Yes, naked with a sharp--locked in a room naked," and I said "Uh," ... I then said to [Attorney], "What? Naked? What are you going to do? ..." And he said, "No, I will kill you with the thing." And at that point ..., the paralegal for [opposing counsel], came in ... and [Attorney] then pointed ... and he said to [the paralegal], "what we need for her is a big bag to put her in without the mouth cut out."

Opposing counsel's legal assistant testified that during a break in the deposition, she entered the conference room to give opposing counsel a note. She testified she heard Attorney state that he would like to put a In his answer, Attorney "adamantly denie[d]" making the "big bag" comment. However, during the Panel hearing, he admitted making the "big bag" comment, but stated Mrs. Jones took it out of context. Secondly, he contended that he had jokingly said that the only way the matter could be resolved would be to lock Mr. and Mrs. Jones naked in a room with a knife on...