Green, Matter of, 22695
| Decision Date | 10 March 1987 |
| Docket Number | No. 22695,22695 |
| Citation | 291 S.C. 523,354 S.E.2d 557 |
| Court | South Carolina Supreme Court |
| Parties | In the Matter of Dove Walter GREEN, Jr. . Heard |
Atty. Gen. T. Travis Medlock, Sr. Asst. Atty. Gen. Richard B. Kale, Jr., and Asst. Atty. Gen. C. Havird Jones, Jr., Columbia, for complainant.
John B. McCutcheon, Jr. and O. Allen Alexander, of McCutcheon, McCutcheon & Baxter, P.A., Conway, for respondent.
This is an attorney grievance matter. Respondent was charged with misconduct as a result of his institution and settlement of a class action lawsuit without notice to all class members. Specifically, respondent was charged with violating Disciplinary Rules 5-106(A), 1-102(A)(1) & (5), 7-101(A)(3), and 6-101(A)(2). Respondent tendered a conditional admission and consent to private reprimand which was denied by the Court.
The facts are undisputed. In 1972, respondent represented Dr. Strickland, a homeowner in the Cherry Grove Subdivision seeking to enjoin the draining and filling of a recreational lake by the developer. Respondent initiated a civil action entitled Alva Lawton Strickland v. C.D. Nixon. The caption of the complaint was subsequently amended to read Alva Lawton Strickland and H.E. McArver, individually and as representatives of a class v. C.D. Nixon. Dr. Strickland later withdrew from the suit.
Respondent testified before the Panel that the class designation was chosen as a vehicle for soliciting support from other Cherry Grove homeowners. Respondent and McArver contacted other homeowners, including a corporation called Premium Investment Corporation, but none were interested in joining the suit. Respondent testified that McArver was the only client he had and that he did not think of or prosecute the case as a class action even though it was still so designated.
The case was settled. As part of the settlement, McArver received three lots and conveyed one to respondent's law firm as a fee. The settlement was later amended to give McArver five more lots, of which respondent received one and respondent's law firm received one.
In 1977, Premium Investment Corporation sued McArver and respondent to recover the proceeds of the settlement, alleging that McArver and respondent had breached their fiduciary duties to other members of the class. The circuit court found that McArver v. Dixon had been a class action, that McArver and respondent had settled the action without notice to all class members and that McArver and respondent should pay damages. The circuit court's order was affirmed by the Court of Appeals. Premium Investment Corp. v. Green, 283 S.C. 464, 324 S.E.2d 72 (Ct.App.1984). This Court denied certiorari.
Respondent contends that his failure to remove the class action designation from the caption of the law suit, even after it became clear that no other Cherry Grove residents were interested in joining the suit, was a mere oversight. Respondent claims that he "just didn't clean...
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