In re Atwater
| Citation | 725 S.E.2d 686,397 S.C. 518 |
| Decision Date | 24 May 2012 |
| Docket Number | No. 27117.,27117. |
| Parties | In the Matter of Michael E. ATWATER, Respondent. |
| Court | United States State Supreme Court of South Carolina |
OPINION TEXT STARTS HERE
Lesley M. Coggiola, Disciplinary Counsel, and Barbara M. Seymour, Deputy Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel.
Michael E. Atwater, of Rock Hill, pro se.
After receiving a complaint from Edward Boulware that his case went nearly ten years without resolution, the Office of Disciplinary Counsel (ODC) conducted an investigation and filed formal charges against his attorney, Michael Atwater. Following a hearing, a Panel from the Commission on Lawyer Conduct found Atwater violated various Rules of Professional Conduct and recommended Atwater receive an admonition and pay the costs of the proceedings. ODC took exception to the Panel's report, arguing it should have found Atwater violated additional Rules of Professional Conduct. Additionally, ODC argues a sanction harsher than an admonition is warranted. We agree.
Shortly after a water main adjacent to Boulware's property ruptured in January 2000, Boulware retained Atwater to bring a suit against the City of Rock Hill. At their initial meeting and in the following months, Boulware provided Atwater with several documents related to this matter, including estimates of the damage, pictures of the flooding, Boulware's recent tax returns, and the City's letter rejecting Boulware's claim. With this information in hand, Atwater filed a complaint against the City in May 2000. In February 2001, the water main broke again and flooded Boulware's property a second time. Atwater accordingly filed an amended complaint reflecting this additional damage.
At this stage, it is undisputed that Atwater engaged in at least some discovery. For example, he responded to interrogatories and requests for production from opposing counsel, and he deposed and interviewed various witnesses. By the time the case was called for trial in June 2003, Atwater believed he had enough evidence to move forward and try the case. However, just as the case was called for trial, it was removed from the circuit court docket and set for binding arbitration. The matter was scheduled to be arbitrated in 2003, and Atwater met with Boulware to prepare an arbitration packet in anticipation of the proceeding.
This arbitration ultimately fell through. Atwater's work on the matter subsequently diminished precipitously, and he never resolved the case. Atwater's main contention as to why he was unable to proceed was a lack of evidence to support Boulware's claims. However, in the six and a half years after the case was to be arbitrated, Atwater interviewed at most only a handful of witnesses, took just a few depositions, and only visited the property three times. Rather than actively investigating Boulware's claims himself, Atwater instead primarily relied on Boulware to come forward with evidence on his own initiative.
As a prime example, Atwater's chief evidentiary concern was a lack of proof as to the damages Boulware incurred.1 However, he never asked Boulware for copies of the cancelled checks he wrote for repairs to substantiate his claim of damages. It was not until opposing counsel requested them in 2005, five years after the flooding, that Atwater received them. Only then did Atwater ask Boulware for more information about his expenditures. Unfortunately, Boulware was unable to provide anything more specific to Atwater because so much time had passed since he wrote the checks; had Atwater told him to keep better records from the start, Boulware testified he would have done so. Furthermore, Atwater never had his own estimate of Boulware's damages performed despite his reservations about the estimate Boulware provided. 2
Also during these six and a half years, the evidence before us shows Atwater sent only a few letters and e-mails, and made only a few telephone calls, to Boulware. Atwater testified, however, that he was routinely in contact with Boulware and many of his meetings also were in person. On the other hand, Boulware offered copies of his telephone records to show the numerous calls he made to Atwater, the vast majority of which Boulware claims went unanswered or unreturned.3 In fact, Boulware wrote multiple e-mails and letters to Atwater expressing his frustration in reaching his attorney and the slow progress of his case.4
Over the years, the settlement offers tendered by the City ranged from $15,000 to $22,000, with an assurance that the City could go up to $25,000 if necessary. Boulware rejected each of these, claiming he needed at least $30,000 to adequately cover the necessary repairs. Also during this time period, the matter was set to be arbitrated on at least three different occasions, each of which fell through.5 Unsatisfied with Atwater's progress on his case after eight years, Boulware requested his file from Atwater in 2008. He made a second request a few months later and copied ODC in his letter. In the fall of 2009, when Atwater was suspended by this Court in another matter,6 Boulware retained a different attorney to handle his case. He settled the case seven months later for $22,000, claiming this sum was now acceptable only because the age of the case had diminished its value. ODC subsequently filed formal charges against Atwater.
Based on the foregoing, the Panel concluded Atwater violated the following Rules of Professional Conduct, Rule 407, SCACR: Rule 1.1 (competence); Rule 1.3 (diligence and promptness); and Rule 3.2 (). However, the Panel found ODC had not set forth clear and convincing evidence that Atwater violated Rule 1.2 (), Rule 1.4 (communication), Rule 3.1 (), and 8.4(e) (), RPC, Rule 407, SCACR.
In particular, the Panel found Atwater violated Rule 1.1 by exhibiting a lack of thoroughness and preparation. While the Panel did note that Atwater possesses the necessary legal skill and knowledge to practice law, it nevertheless found his lack of investigation and preparation constituted a violation of Rule 1.1.
As to Rules 1.3 and 3.2, the Panel similarly found that Atwater failed to diligently prosecute the claims he brought on Boulware's behalf. While the Panel agreed that some delays are inevitable and outside of an attorney's control, it was extremely concerned with Atwater's refusal to accept any responsibility for the numerous delays that caused a case “uncomplicated both factually and legally” to drag on for nearly ten years. As the Panel found, there was much Atwater could have done to advance the matter even if there were obstacles to his progress along the way. Although Atwater maintained he thoroughly investigated the case, the Panel found no evidence to support this contention and resolved this credibility issue in favor of Boulware.
With respect to Rules 1.2 and 1.4, the Panel noted there was a factual dispute as to the extent Atwater maintained contact with Boulware. In the end, the Panel found credible Atwater's testimony that he routinely discussed the case with Boulware in person and over the telephone. Atwater's “shortcoming,” according to the Panel, was instead with “his failure to adequately document his client file to reflect those discussions and meetings.” The Panel therefore found ODC failed to meet its burden in proving Atwater violated Rules 1.2 and 1.4.
As to Rule 3.1 regarding meritorious claims and contentions, the Panel summarily found ODC presented no evidence as to any violation of this rule. In a similarly summary fashion, the Panel also concluded that Atwater's conduct did not violate Rule 8.4(e) and therefore was not prejudicial to the administration of justice.
In aggravation, the Panel considered Atwater's failure to acknowledge any wrongdoing, his prior disciplinary history, and his pattern of misconduct. First, as noted previously, Atwater failed to take any responsibility for the delays in prosecuting Boulware's case, instead laying the blame primarily on Boulware for not coming forward with evidence on his own and other individuals for cancelling the scheduled arbitrations.
With respect to Atwater's prior history, he has been sanctioned twice in the past for misconduct. In 2003, he received a public reprimand for violating Rules 1.1; 1.3; 1.4(b); 1.5(b)–(c) (fee agreements); 3.2; 3.3(a) (); 3.7 (lawyer acting as a witness at trial); 8.1 (making false statements of material fact in connection with disciplinary proceedings); 8.4(d) (); and 8.4(e), RPC, Rule 407, SCACR. In re Atwater, 355 S.C. 620, 625–27, 586 S.E.2d 589, 592 (2003)( Atwater I ). Additionally, Atwater received a six-month definite suspension in 2009 for multiple violations of Rule 8.1(b), RPC, Rule 407, SCACR (failing to cooperate with ODC).7Atwater II, 385 S.C. at 262, 684 S.E.2d at 559–60.
Of particular concern to the Panel were Atwater's actions in Atwater I. In that case, among other things, Atwater failed to respond to the opposing party's motion for summary judgment. Atwater I, 355 S.C. at 623, 586 S.E.2d at 591. As a result, his client's claims were dismissed. See id. The Panel accordingly viewed his prior dilatory representation as demonstrating a pattern of misconduct. Furthermore, Atwater received this public reprimand in Atwater I during his representationof Boulware, and more specifically, at the very time when he essentially ceased working on Boulware's case.
In mitigation, the Panel considered Atwater's lack of dishonest or selfish motive. The Panel found that Atwater did not personally benefit in any way from his misconduct as he took this case on...
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...selfish motive, did not profit from his misconduct, and showed remorse for the harm caused to the investors. See In re Atwater , 397 S.C. 518, 530, 725 S.E.2d 686, 693 (2012) (stating a respondent's lack of personal gain and dishonest motive is a relevant mitigation factor); In re Glover , ......