IN RE BROOME, 25748.

• Court: United States State Supreme Court of South Carolina
• Citation: 356 S.C. 302,589 S.E.2d 188
• Decision Date: 10 November 2003
• Docket Number: No. 25748.,25748.
• Parties: In the Matter of John C. BROOME, Respondent.

356 S.C. 302
589 S.E.2d 188

In the Matter of John C. BROOME, Respondent

No. 25748.

Supreme Court of South Carolina.

Heard September 23, 2003.

Decided November 10, 2003.

356 S.C. 304

Attorney General Henry Dargan McMaster and Assistant Deputy Attorney General J. Emory Smith, Jr., both of Columbia, for The Office of Disciplinary Counsel

Carol S. Broome, of Columbia, for Respondent.

356 S.C. 305

DEFINITE SUSPENSION

PER CURIAM:

In this attorney-disciplinary matter, the Sub Panel of the Commission on Lawyer Conduct found, and the Full Panel agreed, that John C. Broome ("Respondent") committed misconduct and recommended that he receive a public reprimand and pay proceeding costs. We find that the gravity of Respondent's misconduct justifies harsher sanctions. Therefore, we hereby suspend Respondent for 90 days, order him to pay proceeding costs, and require that he be re-examined by the Committee on Character and Fitness before he may reactivate his license to practice law.

FACTUAL/PROCEDURAL BACKGROUND

This attorney-disciplinary case arises from Respondent's conduct in three separate matters: (1) adoption-related proceedings; (2) a custody dispute ("Sparks matter"); and (3) a divorce action ("Jones matter"). Respondent's conduct in the adoption-related proceedings is the most serious, most factually complex of the three matters.

A. ADOPTION-RELATED PROCEEDINGS

The same adoptive child is the subject of three distinct adoption-related proceedings. Mr. and Ms. Roe¹ filed the first action ("Adoption # 1") as a married couple seeking to adopt the infant child. A few months later, alleging that Mr. Roe had abused the child, Ms. Roe moved out of the marital home, took the infant child with her, and then filed the second action ("Support Action"), seeking separate maintenance and support and temporary custody. Shortly thereafter, Ms. Roe filed the third action ("Adoption # 2"), seeking to adopt the child as a single parent.

Respondent represented Ms. Roe in both the Support Action and Adoption # 2. In short, Respondent initiated Adoption # 2 while Adoption # 1 was pending and did not notify

356 S.C. 306

the Adoption # 1 parties that he had done so. Throughout, Respondent handled Adoption # 2 as if it were an independent action, unrelated to Adoption # 1, even though the very same child, birth parents, and prospective adoptive parents had a stake in each matter

1. TIMELINE

The following timeline illustrates the interplay among the three adoption-related proceedings:

Apr. 23, 1998 Adoption # 1 (Case No. 1766) filed in County X² by Mr. and Ms. Roe to adopt infant child.

Aug. 12, 1998 Ms. Roe filed Support Action (purportedly pro se but with documents prepared by Respondent) in County Y.³

Aug. 27, 1998 Upon learning that the Roes had separated, the birth parents' attorney, Sam Crews, wrote a letter to Respondent and other counsel requesting that the child be returned to the birth mother for temporary placement with the birth mother's relatives. (A few days later, Respondent filed Adoption # 2 in direct opposition to this request.)

Aug. 31, 1998 Final hearing in Adoption # 1 continued until November 1. (This continuance made it possible for Respondent to go forward with plans to file Adoption # 2, contravening the birth mother's wishes as detailed in the August 27, 1998 letter from Sam Crews.)

Ms. Roe filed a Notice of Dismissal "as to [her]" (purportedly pro se but with documents prepared by Respondent) in Adoption # 1 but did not serve the other parties until November 6, 1998.⁴

356 S.C. 307

Ms. Roe signed the complaint for Adoption # 2 with Respondent as counsel.

Sept. 3, 1998 Complaint in Adoption # 2 filed but not served on Mr. Roe, his counsel, the guardian ad litem, or the birth parents. Complaint fails to make any reference to pending Support Action and states that Adoption # 1 was dismissed "as to [Ms. Roe]."

Sept. 8, 1998 Hearing held in Support Action. Respondent did not inform Judge Nuessle that Adoption # 2 had been filed.

Sept. 24, 1998 Judge Nuessle granted Ms. Roe temporary child custody. Birth mother given 30 days to intervene in Support Action.

Oct. 16, 1998 Final hearing held in Adoption # 2 before Judge Brown. While Ms. Roe was on the witness stand, Respondent asked her whether Adoption # 1 "was dismissed by [her]" to which she answered, "Yes." Without knowledge that Adoption # 1 and Support Action were pending, Judge Brown issued an order of adoption to Ms. Roe.

Nov. 6, 1998 Ms. Roe finally served parties with Notice of Dismissal as to her only in Adoption # 1.

Nov. 9, 1998 Respondent filed a Notice of Representation in Adoption # 1.

Nov. 13, 1998 Attorney for birth parents (Sam Crews) wrote letter to Judge Brown requesting that Adoption # 2 be re-opened and an emergency hearing held.

Hearing held before Judge Riddle in Adoption # 1 in what should have been a final hearing in that case. But then Respondent announced that Ms. Roe already adopted the child in Adoption # 2.

Nov. 17, 1998 Hearing held in Support Action before Judge Sawyer. Judge Sawyer held the proceeding in abeyance until Judge Brown had an opportunity to re-hear the matter.

Nov. 20, 1998 Hearing held before Judge Brown in Adoption # 2 to re-hear order of adoption previously granted to Ms. Roe.

356 S.C. 308

Nov. 23, 1998 Judge Riddle issued order continuing Adoption # 1 once again and requiring that the contents of the Adoption # 2 proceeding be unsealed to allow the guardian ad litem to review the case.

Dec. 10, 1998 Judge Brown vacated the order of adoption he issued in Adoption # 2 finding (1) lack of notice to necessary parties; (2) Adoption # 1 was still pending; and (3) lack of notice to court that Adoption # 1 and Support Action were pending.

2. FAILURE TO INFORM THE COURT

This Court finds that on at least four different occasions in front of four different judges, Respondent engaged in deceitful conduct. The conduct in Adoption # 2 is outlined first and most thoroughly, since it is the focus of the parties' briefs.

a. JUDGE BROWN, ADOPTION # 2

The Office of Disciplinary Counsel ("ODC") and Respondent center their discussion of the adoption-related proceedings on Respondent's failure to inform the court in Adoption # 2 that Adoption # 1 and the Support Action were pending. Respondent had two opportunities to inform the Adoption # 2 court: (1) in the complaint and (2) at the final hearing for adoption.

In the complaint, Respondent referred to Adoption # 1 in two separate paragraphs. Paragraph 6 states, "[a]n action for adoption of the minor child was filed in [County X] as File No. 98-DR-40-1766. This plaintiff has had that action as to her dismissed as more fully set forth herein." (emphasis added). Also, Paragraph 16 states:

A previous action for adoption was filed under File No. 98-DR-40-1766 on April 23, 1998, which was within 60 days of placement as required by statute, by this Plaintiff and her now estranged husband, however due to his abusive behavior toward the baby, the Plaintiff determined that for her safety and the safety of the child, and the impossibility of an adoption by both under the circumstances, that the action as to her should be dismissed and an [sic] new action begun with this plaintiff alone.

(emphasis added). Respondent argues that these references to Adoption # 1 sufficiently informed the court that Adoption

356 S.C. 309

# 1 remained viable. Further, he argues that the onus was on the court to determine the status of Adoption # 1 and to inquire as to whether any other action concerning the child or parties was pending. But ODC argues that these references fall short of informing the court that Adoption # 1 was pending as to other parties

If there was any confusion concerning the status of Adoption # 1 from language in the complaint, that confusion could have been clarified in Respondent's direct examination of Ms. Roe during the final hearing in Adoption # 2. When Ms. Roe was on the witness stand, Respondent asked, "was [Adoption # 1] dismissed by you?" to which Ms. Roe replied, "Yes, sir, it was." Judge Brown relied on this testimony and thus believed Adoption # 1 had been dismissed in its entirety.

Respondent also failed to inform the court—both in the complaint and at the final hearing—that the Support Action was pending, even though Respondent was the attorney of record and had appeared in that case. He argues that he was not required by law to disclose the action in the Adoption # 2 complaint because the court in the Support Action had yet to issue an order affecting custody.⁵ In addition, Respondent argues that he did not entirely fail to inform the court because the Adoption # 2 complaint and its attached reports explained that Ms. Roe was estranged from her husband, suggesting a Support Action of sorts might exist.

Respondent also failed to inform the court in Adoption # 2 (1) that a guardian ad litem had already been appointed for the child in Adoption # 1; (2) that the natural parents had asserted an interest in the child; and (3) that Mr. Roe had not taken legal action to terminate his desire to adopt the child.

Based on the record and the testimony at the October 16, 1998 final adoption hearing in Adoption # 2, Judge Brown issued an order of adoption to Ms. Roe as the sole adoptive parent. But shortly thereafter, Mr. Roe brought a motion to vacate, and upon rehearing the matter, Judge Brown vacated this order finding (1) that the court was misled as to Adoption # 1's status, (2) that the court was not informed about the

356 S.C. 310

Support Action, and (3) that Mr. Roe, the birth parents, and the guardian ad litem appointed in Adoption # 1 were necessary parties to Adoption # 2. Judge Brown also declared that Respondent and his client had demonstrated "a willful and flagrant disregard for their statutory and ethical duties to [the] court." Finally, Judge Brown ordered Respondent and Ms. Roe to pay $5,000 in fees.

b. JUDGE NUESSLE, SUPPORT ACTION

On September...