Matter of Marshall
| Decision Date | 23 March 1998 |
| Docket Number | No. 24775.,24775. |
| Citation | 331 S.C. 514,498 S.E.2d 869 |
| Parties | In the Matter of Sharon G. MARSHALL, Respondent. |
| Court | South Carolina Supreme Court |
J. Cordell Maddox, Jr., of Glenn, Haigler & Maddox, Anderson, for respondent.
Attorney General Charles M. Condon and Assistant Deputy Attorney General J. Emory Smith, Jr., Columbia, for Complainant.
In this attorney disciplinary matter, respondent, Sharon G. Marshall, is charged with several acts of misconduct arising out of her representation of her clients and her supervision of her employee. We find respondent committed misconduct and impose a definite suspension from the practice of law for a period of six months. In addition, respondent must complete the Law Office Management Assistance Program (LOMAP) of the South Carolina Bar and make restitution prior to reinstatement.
This disciplinary matter concerns six complaints filed against respondent between May 1995 and May 1996. The complaints alleged ten separate matters in which respondent was charged with misconduct.1 A hearing was held on June 18, 19, and 20, 1996. Respondent was represented by counsel. On April 12, 1997, the Hearing Panel (Panel) issued its report finding misconduct and recommending a definite suspension for one year. Both respondent and Complainant filed exceptions to this report. The Interim Review Committee2 of the Board of Commissioners on Grievances and Discipline (Committee) agreed with the Panel's findings of fact and conclusions of law. In addition to recommending a one year suspension, the Committee recommended respondent provide restitution to the victims and complete the LOMAP of the South Carolina Bar prior to reinstatement. Both respondent and Complainant filed exceptions and briefs with this Court. Complainant claims the Panel and Committee erred in not finding respondent was directly involved in several schemes to defraud her clients. Respondent argues, because the Panel concluded she was not involved in these schemes to defraud her clients, the recommended sanction of one year suspension is too harsh.
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 the witnesses. Matter of Yarborough, 327 S.C. 161, 488 S.E.2d 871 (1997). However, this Court may make its own findings of fact and conclusions of law. Id. Further, a disciplinary violation must be proven by clear and convincing evidence. Id.
In 1991, respondent hired Miriam Durham, whom she had known since childhood, to manage her office and to be a paralegal. Ms. Durham had previously worked for several other attorneys and respondent contacted one of these attorneys who gave Ms. Durham a good reference.
Respondent's office staff was controlled by Ms. Durham. Ms. Durham directed all of respondent's appointment making, telephone calls and mail to herself. Respondent erroneously believed the office procedure was for mail to be brought to the receptionist's desk and then to respondent. After Ms. Durham's departure in April 1994, many documents were found in her office, including original letters regarding some of the matters involved in this proceeding.
Respondent was often out of the office. She was the juvenile public defender for Anderson County and was required to be in court each Wednesday and, usually, additional mornings or afternoons each week.
From 1991 to 1994, respondent delegated to Ms. Durham unsupervised and unfettered authority within her office, including control over the day to day financial affairs. Although respondent's bookkeeping was handled by an outside company, Triple A Bookkeeping, Ms. Durham usually dealt with Triple A. All of respondent's bank statements were sent directly to Triple A and respondent rarely, if ever, closely reviewed these statements. Eventually, Ms. Durham caused respondent to terminate her relationship with Triple A. Ms. Durham then handled the bookkeeping.
In April 1994, respondent changed the office locks after a telephone conversation with another attorney regarding Ms. Durham's misrepresentation of her identity at a local jewelry store. On the day the locks were changed, respondent did not confront Ms. Durham about the misrepresentation or about the changing of the locks. Ms. Durham left that same day and never returned.
After Ms. Durham ended her employment, "clients" came to respondent inquiring about their cases. Respondent had not previously met many of these "clients." These persons brought receipts which respondent had never seen and checks which had been forged by Ms. Durham. Respondent did attempt to help several of these people or to reimburse them for the money they paid to Ms. Durham. In 1995, respondent was diagnosed with cancer and has since undergone treatment.
Ms. Durham had a criminal record in Anderson County for fraudulent checks prior to 1991. Ms. Durham's ex-husband testified he thought respondent had represented Ms. Durham in a criminal proceeding prior to hiring her. Respondent denied ever representing Ms. Durham and denied any knowledge of Ms. Durham's past criminal record for fraudulent checks. Respondent admitted she was aware Ms. Durham had credit problems. A colleague of respondent expressed concerns to respondent about Ms. Durham's character shortly after respondent hired Ms. Durham. Respondent dismissed these concerns because Ms. Durham was doing a great job running the office and because she attributed the concerns to a personality conflict between the colleague and Ms. Durham. Further, this colleague testified her concerns partially arose out of her envy that respondent had found such a hard working employee. Respondent's brother also attempted to warn respondent in 1992 that Ms. Durham could not be trusted. Respondent's brother had entrusted respondent with a large sum of money. Respondent placed a portion of this money in her trust account and the rest she held as cash in a box at her office. Supposedly, respondent would hold this money for her brother and as he needed it, she would disburse it. Respondent's brother refused to believe the accuracy of the accounting provided to him by respondent and Ms. Durham of the disbursement of his funds; instead, he accused Ms. Durham of stealing the money. Respondent refused to believe Ms. Durham had stolen this money. Respondent testified her brother was irresponsible with money.
Ms. Durham testified during this hearing. The Panel's report did not address her testimony. We conclude her testimony is completely incredible.
Beginning in 1989, respondent represented a client on a social security disability claim. The client received an award of $12,530.10. Respondent was owed 25% of this award for attorney fees.
After receiving her disability award in May 1992, the client was required to reimburse Provident Insurance Company (Provident) for monies provided by Provident to the client before her disability award. Ms. Durham informed the client she would be required to repay Provident $12,530.10 in a lump sum. The client brought Ms. Durham a check for this amount. This check was deposited into respondent's trust account on August 8, 1992. Ms. Durham also instructed the client to cash another check for $949.67 and to bring the cash back to Ms. Durham. Ms. Durham assured the client she would send these monies to Provident as repayment but she never did. On August 28, 1992, the client gave Ms. Durham another check for $3,798.68. Ms. Durham told the client this check would also be part of the repayment to Provident. This check was deposited into respondent's trust account. Ms. Durham received from the client a total of $17,278.35.
The client then received a letter from an employee of Provident stating that Provident's overpayment to the client was $9,991.53. This amount was calculated based on the amount of the award minus the attorney fees. Provident asked the client to forward a check or money order for that amount. Because the client thought she had repaid Provident, the client contacted Ms. Durham to inquire about the letter. Ms. Durham claimed she was working on the matter and she told the client not to speak with any employees of Provident. The client then received another letter from Provident asking for repayment.
The client scheduled an appointment with respondent to discuss this matter. However, shortly before her appointment, Ms. Durham canceled the appointment. The client never talked directly to respondent about the problems arising from the Provident matter.
The client never owed Provident more than $9,991.53. Checks were written to respondent from the trust account for "[the client] SS" on August 28, 1992 in the amount of $1,200.00 and on August 31, 1992 in the amount of $2,000.00. The signatures on these checks were made by a signature stamp. Respondent testified she had authorized Ms. Durham to use this stamp in emergencies. These checks were deposited into respondent's operating account. By September 30, 1992, the trust account balance into which $15,828.78 had been deposited was $239.00. None of the missing monies were ever paid to Provident. However, from April 1993 to March 1994, respondent paid Provident $1200.00 on behalf of the client. Respondent testified in 1993 Ms. Durham told her the client could not repay Provident in a lump sum. Thus, respondent contacted Provident on behalf of the client, and Provident agreed to accept monthly payments of $200.00. Respondent conveyed this information to Ms. Durham who was to inform the client of the arrangement. Afterwards, when Ms. Durham would inform respondent the client had paid $200.00, respondent would send Provident a check for that amount.
In the fall of 1994, after the client became aware Ms. Durham had left respondent's office by seeing Ms. Durham's picture on...
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