In re Boney
| Decision Date | 15 November 2010 |
| Docket Number | No. 26893.,26893. |
| Court | South Carolina Supreme Court |
| Parties | In the Matter of Jessica R. BONEY, Respondent. |
Lesley M. Coggiola, Disciplinary Counsel, and Barbara M. Seymour, Deputy Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel.
Jessica R. Boney, of Union, pro se Respondent.
In this attorney disciplinary matter, the Commission on Lawyer Conduct ("Commission") investigated allegations of misconduct involving Jessica R. Boney ("Respondent") in six matters, including the failure to keep clients reasonably informed, the mishandling of client funds, and the failure to act with due diligence. The Office of Disciplinary Counsel ("ODC") filed formal charges against Respondent. A hearing panel of the Commission ("Hearing Panel") issued its Panel Report recommending disbarment based on the underlying misconduct, Respondent's failure to fully cooperate in the disciplinary investigation, and her failure to answer the formal charges and appear at the hearing on those charges. The Hearing Panel also recommended that Respondent be required to pay the costs of these proceedings and to reimburse the Lawyers' Fund for Client Protection for any amounts paid on her behalf. Neither Respondent nor ODC has filed a brief taking exception to the Panel Report. We agree with the recommendation of the Hearing Panel and hereby disbar Respondent for her misconduct.
[702 S.E.2d 242, 390 S.C. 409]
Respondent was admitted to the practice of law in South Carolina on September 23, 2003. Respondent closed her law practice in Union, South Carolina and left the state in January 2006.
By order of the Court, she was placed on interim suspension on February 1, 2006 and Sammy Diamaduros was appointed to protect her clients' interests.
The South Carolina Commission on Continuing Legal Education ("CLE") and Specialization administratively suspended Respondent from the practice of law on April 1, 2007 for failing to comply with CLE requirements. By order dated June 6, 2007, this Court formally suspended Respondent and ordered her to surrender her certificate to practice law in this state for her continued failure to meet the CLE requirements.
On October 6, 2009, ODC filed formal charges with the Commission alleging Respondent had committed misconduct in six matters. The formal charges were served on Respondent by certified mail sent to her last two known addresses.
Respondent failed to file an answer or otherwise respond to the formal charges, and a Default Order was issued by the Commission. The Hearing Panel subsequently conducted a hearing on the formal charges to determine the appropriate, recommended sanction, but Respondent did not appear and she was not represented by counsel.
The Hearing Panel found the allegations in the six matters were deemed admitted pursuant to Rule 24(b) of the Rules for Lawyer Disciplinary Enforcement ("RLDE"), contained in Rule 413, South Carolina Appellate Court Rules ("SCACR"), as a result of Respondent's default. The allegations, now deemed admitted, are as follows.
Ms. E. Gault consulted Respondent about possibly filing for bankruptcy. At that time, Respondent worked as an associate at the Fleming Law Firm. Respondent met with Gault and advised her that she should not file for bankruptcy. Respondent believed Gault left the meeting considering whether to accept her advice. The Fleming Law Firm collected $610.00from Gault, but Respondent did no work on the file and had no further communication with Gault until after she left the Fleming Law Firm two months later.
The client files Respondent took with her to her new practice were determined by Mr. Fleming. Respondent did not take Gault's file. When Gault contacted her several weeks later, Respondent referred her to the Fleming Law Firm, but thereafter someone from the firm delivered Gault's file to Respondent's new office. Respondent again reviewed the matter and advised Gault not to file for bankruptcy.
Gault continued to call Respondent's office and, at one point, paid $110.00 to Respondent's secretary. Respondent failed to ensure that Gault understood her advice and failed to take affirmative steps with Fleming to determine which files she was going to handle after her departure.
Respondent timely responded to ODC's initial inquiry in this matter, but did not timely respond to the notice of full investigation.
Respondent was appointed to represent Mr. Malpass in a criminal matter, and she appeared at a hearing on his behalf. Another individual, Ms. Moore, made numerous unsuccessful attempts to contact Respondent by phone and in person at her office on behalf of Malpass. Respondent did not have permission from Malpass to talk to Moore about his case; however, Respondent never consulted with Malpass about whether he would give her permission to speak to Moore, despite Moore's repeated inquiries.
Respondent was placed on interim suspension while she was waiting for an evaluation to submit to the court regarding Malpass's release. She failed to turn over Malpass's file to the attorney appointed to protect her clients' interests, and to date Respondent has been unable to locate the file.
Respondent did not timely respond to the notice of full investigation in this matter.
Respondent conducted a real estate closing in December 2005 at which Mr. Sloan was the borrower. Respondent's paralegal miscalculated the payoff of Sloan's mortgage and Respondent did not catch this error. Sloan learned of this when he received a notice from his mortgage company in January 2006.
After Sloan was unable to reach Respondent, he enlisted the assistance of the other party to the transaction, who then contacted Respondent. Respondent issued a check for the correct amount to Sloan's lender. Respondent made up the difference resulting from her miscalculation from her attorney's fee.
Respondent did not timely respond to the notice of full investigation in this matter.
Respondent represented Mr. T. Gault in a domestic matter. After the hearing, the judge instructed Respondent to prepare an order. Respondent prepared and submitted the order, which the judge signed within eight days of the hearing. The same week, Respondent suffered from a serious medical episode. She then closed her office and moved out of state. The order was not actually filed until two and a half months after it was signed.
Respondent did not take appropriate steps to notify Gault or the court about the closing of her office and her departure from the state, or to protect Gault's interests upon her unilateral termination of representation. Respondent did not turn Gault's file over to the attorney appointed to protect her clients' interests and to date she has been unable to locate the file.
Ms. Canupp paid Respondent a $2,000.00 retainer in December 2005 to represent her on a DUI charge. Respondent represented to ODC that she referred Canupp's case to Mr. Wood, an attorney who agreed to take her cases when sheclosed her office. Wood subsequently died, however, and Respondent was unable to locate Canupp's file.
Respondent has no record of depositing Canupp's fee into her trust account or paying it to attorney Wood, and she is unable to recall or document what she did with the fee. The Lawyers' Fund for Client Protection has reimbursed Canupp the full amount of the fee she paid to Respondent.
Respondent was appointed to represent Mr. Spoone in a Department of Social Services ("DSS") matter. At the time Respondent closed her office and left South Carolina in January 2006, a hearing had been scheduled for March 2006. Respondent did not seek to be relieved as counsel or take steps to protect Spoone's interests, and she did not turn over Spoone's file to the attorney appointed to protect her clients' interests while she was on interim suspension. To date she has been unable to locate Spoone's file.
The Hearing Panel found that by her conduct, Respondent was subject to sanctions for violating the following Rules of Professional Conduct (RPC) of Rule 407, SCACR: Rule 1.1 (competence), Rule 1.2 (scope of representation), Rule 1.4 (communication with clients), Rule 1.5 (fees), Rule 1.15 (safekeeping property), Rule 1.16 (terminating representation), and Rule 8.1 ().
The Hearing Panel further found Respondent is subject to discipline for violating the following provisions of the RLDE contained in Rule 413, SCACR: Rule 7(a)(1), RLDE (violating the RPC); Rule 7(a)(3), RLDE (); Rule 7(a)(5), RLDE (); and Rule 7(a)(6), RLDE ().
The Hearing Panel took two aggravating factors into consideration: (1) Respondentfailed to fully cooperate in the disciplinary investigations, and (2) Respondent did not answer the formal charges or appear at the hearing.
The Hearing Panel noted Respondent had failed to appear at the hearing to offer evidence in mitigation, but that disciplinary counsel did report to the Hearing Panel "that Respondent had suffered a medical emergency and a subsequent domestic issue in 2005 and 2006 that interrupted her law practice and resulted in her leaving the state unexpectedly."
Respondent did return to the state for a time and during one interval she cooperated in the disciplinary investigation and was represented by counsel. However, on March 25, 2008 the Commission Chair granted counsel's motion to be relieved on...
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