Bowen, Matter of, 24404
| Citation | 321 S.C. 450,469 S.E.2d 46 |
| Decision Date | 07 February 1996 |
| Docket Number | No. 24404,24404 |
| Parties | In the Matter of William M. BOWEN, Respondent. . Heard |
| Court | United States State Supreme Court of South Carolina |
In this attorney discipline matter, the Hearing Panel found respondent had committed misconduct in his handling of a checking account, belonging to a long-term client, on which he was a signatory. It recommended a public reprimand. The Executive Committee of the Board of Commissioners on Grievances and Discipline adopted the Panel's findings of fact and conclusions of law. By a vote of four to three, it also recommended a public reprimand; the three dissenting members recommended a six-month suspension. We agree with the dissenting Board members that a six-month suspension is the appropriate sanction for the misconduct that occurred in this case.
Respondent first represented John S. Cram, III in 1968 on a tax matter. Since that time he has continued to represent Mr. Cram on a variety of matters. In the early 1970s, Mr. Cram made respondent a signatory on his personal bank account. At some point respondent became a named person on the account.
Mr. Cram did not work; he received a monthly income as a beneficiary of a family trust. In 1985 this trust terminated, entitling him to a distribution of approximately $1.3 million. This sum was put in a life trust, again with Mr. Cram receiving a monthly distribution into his bank account. Respondent would then pay Mr. Cram's living expenses out of the account.
In 1990 the probate court ordered respondent to produce an accounting for Mr. Cram's bank account for the years 1988-1990 (and farther back if possible) relating to certain matters then before it. 1 After respondent produced this accounting, complainant, Mr. Cram's half brother, initiated the instant grievance.
Further investigation into Mr. Cram's account revealed that from 1985 to 1990 respondent wrote checks to his law firm and his credit card companies totalling approximately $168,000. Specifically, about $115,000 was paid to his credit cards during these years. Respondent claims all checks were written to pay legal fees or expenses, or to repay firm advances made to Mr. Cram. According to him, he paid approximately $6,000 as legal expenses, $152,000 as legal fees, and $10,000 as repayment of firm advances. In explanation, respondent asserts that between 1970 and 1985 he provided legal work for Mr. Cram, but Mr. Cram could not afford to pay him more than approximately $2,000 a year. It was agreed that when Mr. Cram's family trust terminated, respondent would be compensated for his prior work. Therefore, the payments under scrutiny represented payment for current as well as past legal work.
Respondent was only able to provide billing statements for approximately $85,000 to substantiate his claim. No invoices exist at all until January 1986. When questioned about whether he reported the payments to his credit card companies as income on his tax returns for the relevant years, respondent stated it did not occur to him until the probate accounting in 1990 that these payments were income. At that time he filed amended tax returns reflecting this additional income.
This court has the ultimate authority to discipline attorneys, and the findings of the Board are not binding. Matter of Dobson, 310 S.C. 422, 427 S.E.2d 166 (1993). However, such findings are entitled to great weight. Matter of Lake, 269 S.C. 170, 236 S.E.2d 812 (1977). This is particularly so when the inferences to be drawn from the testimony in the record depend largely on the credibility of witnesses. In re Bloom, 265 S.C. 86, 217 S.E.2d 143 (1975).
Respondent argues Mr. Cram orally authorized him to make all payments under scrutiny. However, given Mr. Cram's mental state 2, we find any authorizations given by him ineffective to justify respondent's actions, particularly when considering the methods respondent employed to receive them. Respondent testified he would tell Mr. Cram, Mr. Cram would reply, "Fine." Respondent did not tell Mr. Cram what any payments were going to, nor did he ever show Mr. Cram records of the services rendered for which Mr. Cram owed money. Respondent was in a fiduciary relationship with Mr. Cram, and it is apparent that Mr. Cram placed a great deal of trust in him. We find respondent abused that trust.
In its report, the hearing panel found:
Respondent's testimony regarding his authorization for writing the checks on the special account for the benefit of Respondent and his firm is simply not credible. Even if Respondent had an oral authorization from Mr. Cram, it was the authorization of a person who clearly was not able to handle his personal or financial affairs and who was later determined incompetent.
Respondent did not have a written fee agreement with Mr. Cram. His record keeping regarding his fees and expenses incurred regarding Mr. Cram were poor, at best. Respondent did not send an itemized bill to Mr. Cram on a regular basis or at regular intervals in any way, shape, or form. He did not keep Mr. Cram apprised as to the fees which Mr. Cram was incurring as a result of Respondent's representation of him. Respondent obviously had a close fiduciary relationship with Mr....
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Yarborough, Matter of
...... In the Matter of Bowen, 321 S.C. 450, 469 S.E.2d 46 (1996) (per curiam). Misconduct must be proven by clear and convincing evidence. In re Friday, 263 S.C. 156, 208 ......
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Harper, Matter of
...... However, the facts of the present case constitute much more than negligent recordkeeping. The case of In re Bowen, 321 S.C. 450, 469 S.E.2d 46 (1996) is instructive. In In re Bowen, the attorney was a named person on the client's bank account. Client received a ......