In re Brown

• Decision Date: 08 November 2004
• Docket Number: No. 25895.,25895.
• Parties: In the Matter of Frank Bryant BROWN, Respondent.
• Court: South Carolina Supreme Court

361 S.C. 347

605 S.E.2d 509

In the Matter of Frank Bryant BROWN, Respondent.

No. 25895.

Supreme Court of South Carolina.

Submitted September 23, 2004.

Decided November 8, 2004.

Henry B. Richardson, Jr., Disciplinary Counsel, and Barbara M. Seymour, Senior Assistant Disciplinary Counsel, both of Columbia, for the Office of Disciplinary Counsel.

Desa A. Ballard, of West Columbia, for respondent.

PER CURIAM:

In this attorney disciplinary matter, respondent and the Office of Disciplinary Counsel (ODC) have entered into two Agreements for Discipline by Consent pursuant to Rule 21, RLDE, Rule 413, SCACR. In the first agreement, respondent admits misconduct and consents to the imposition of any sanction up to and including a two year definite suspension from the practice of law. See Rule 7, RLDE, Rule 413, SCACR. We accept the first agreement and impose a definite suspension of two years from the practice of law. In the second agreement, respondent admits misconduct and consents to the imposition of any sanction set forth in Rule 7(b), RLDE. We accept the second agreement and disbar respondent. The two sanctions shall run concurrently.

FIRST AGREEMENT

The facts, as set forth in the first agreement, are as follows.

FACTS

Matter I

Respondent graduated from law school in June 1999. Before being admitted to practice law in any state, respondent obtained employment with Brock & Scott, a Winston-Salem, North Carolina-based real estate firm. He was assigned to the firm's law office in Rock Hill. Respondent worked under the supervision of an attorney licensed to practice law in South Carolina.

While employed as a non-lawyer at Brock & Scott, respondent conducted real estate closings without an attorney being present. Respondent signed his own name to the documents associated with the real estate closings. After conducting the closings, it was respondent's practice to have other employees of the firm sign as witness and/or notary on the documents even though they were not present at the closings. Respondent conducted some closings when there was no licensed South Carolina attorney on the premises. Respondent routinely signed as witness and notary to documents relating to closings at which he was not present.

In September 1999, Brock & Scott merged with the firm of Forquer & Green, a Charlotte, North Carolina-based real estate firm with an office in Columbia, The two firms remained separate in North Carolina, but operated as Green, Brock, Forquer & Scott in South Carolina. Respondent continued to conduct real estate closings without an attorney present (and sometimes without an attorney on the premises) while employed by the new firm. In connection with those real estate closings, respondent signed the name of his supervising attorney without indicating he was signing on her behalf. He continued his practice of soliciting signatures and notarizations from staff members not present at the closings and signing his own name as witness and notary to documents executed outside his presence.

In January 2000, the South Carolina attorney responsible for respondent's supervision left Green, Brock, Forquer & Scott to work for a subsidiary company of Forquer & Green in Charlotte. Respondent continued to conduct real estate loan closings without the presence or supervision of a South Carolina attorney. Respondent continued to sign his former supervising attorney's name to real estate documents.

In April 2000, Green, Brock, Forquer & Scott dissolved and respondent became employed with Forquer & Green. He continued to conduct real estate closings in the manner described above until his admission to the South Carolina Bar in November 2000.

Respondent estimates he conducted two or three closings per day from June 1999 until November 2000. During the time period in which respondent conducted closings for the three law firms, it was not his practice to inform parties he was not an attorney. While he did not affirmatively hold himself out as an attorney, respondent only disclosed the fact that he was not an attorney when a party made a specific inquiry. Respondent acknowledges that it was likely that the parties to the closings assumed he was an attorney. During the time period in which respondent was conducting the closings for the three law firms, he made no meaningful inquiry about the propriety of a nonlawyer conducting real estate closings, although he represents he did have concerns in this regard. Respondent did not question his employers, conduct research into the statutory or case law on the subject, consult with an attorney outside the firm, or seek guidance from the South Carolina Bar.

Matter II

On January 28, 2000, respondent traveled to the office of a mortgage company in Greenville to conduct a real estate closing for Mr. and Mrs. Doe. Respondent was not licensed to practice law at the time. There was no licensed attorney present at the closing or on the premises. Many of the closing documents were signed by the Does in blank. Respondent signed his supervising attorney's name to the closing documents. He returned the closing documents to the firm and solicited signatures of other staff members as witnesses and notary. Respondent's involvement in this matter was discovered during an investigation of a grievance filed after the Does attempted to refinance the property and discovered that that mortgage and deed had never been filed.

Matter III

On February 25, 2000, respondent's former supervisor at Green, Brock, Forquer & Scott conducted a real estate closing for Mr. and Mrs. Smith as a favor to the firm because respondent was studying for the bar examination and unavailable. Respondent was unaware of this arrangement.

Upon his return to the firm after taking the examination, respondent found a stack of approximately ten to twenty closing files, including the Smiths' file, waiting for him to complete. Respondent proceeded to sign his former supervisor's name to the closing documents in those files. He was unaware that his former supervisor had actually conducted the Smiths' closing. He assumed a paralegal had conducted the Smiths' closing. Respondent signed his own name as witness and/or notary on the documents in the files, including the documents in the Smiths' file, although he was not present when the documents were executed. Some of the documents in the Smiths' closing file were incomplete or contained blanks. Respondent completed the documents or filled in the blanks. Respondent's involvement in the matter was discovered during an investigation of a grievance filed after the Smiths attempted to refinance the property and discovered that the mortgage and deed had never been filed.

Matter IV

On April 26, 2000, while working as a non-lawyer for Forquer & Green, respondent was sent to a mortgage company in Greenville to conduct a closing for Mrs. Jones. At this time, respondent was being supervised by a different South Carolina attorney who was not available to conduct the closing himself. Although he was unaware of the circumstances at the time, respondent now reports that, in accordance with pleadings filed in ensuing litigation, they are as follows.

Mrs. Jones contacted the mortgage company about refinancing her home because she faced foreclosure. As a result of delays by the mortgage company, Mrs. Jones' home was sold at a foreclosure sale. Mr. Pressley, an employee of the mortgage company, purchased the home at the foreclosure sale. Mr. Pressley also persuaded Mrs. Jones to endorse the check for her portion of the sales proceeds to himself. For some reason, no deed was recorded by the special referee. At Mr. Pressley's request, respondent's firm prepared a deed from Mrs. Jones to Mr. Pressley.

Upon his arrival at the mortgage company, respondent was handed the above-mentioned deed and was informed that Mrs. Jones had signed the deed, but had left before he arrived. Respondent returned to the law office and signed his supervising attorney's name as witness and his own name as notary. Neither respondent nor his supervising attorney were present during the execution of the documents. Respondent did not confirm with Mrs. Jones that she had in fact signed the deed.

Ultimately, Mr. Pressley defaulted on the property and the home was sold at a second foreclosure. In settlement of the lawsuit filed against respondent, his supervising attorney, and Forquer & Green, the firm arranged for financing for Mrs. Jones, placed title to the property back in her name, and paid her a cash settlement.

Matter V

Respondent continued his employment with Forquer & Green following his admission to the South Carolina Bar in November 2000. He became a partner in the firm in April 2001.

After becoming a licensed attorney, respondent allowed non-lawyers under his supervision to conduct real estate closings outside his presence. During that time, respondent also continued the practices of witnessing and notarizing documents that were executed outside his presence and soliciting witness and notary signatures from individuals in the firm not present during execution. These practices continued until early in January 2002, when respondent received notice of grievances filed against him. Respondent has now discontinued these practices and has instructed the members and staff of his firm to discontinue these practices.

LAW

Respondent admits that his misconduct constitutes grounds for discipline under Rule 413, RLDE, specifically Rule 7(a)(1) (lawyer shall not violate Rules of Professional Conduct or any other rules of this jurisdiction regarding professional conduct of lawyers) and Rule 7(a)(5) (lawyer shall not engage in conduct tending to pollute the administration of justice or to bring the courts or the legal profession into disrepute or conduct demonstrating an unfitness to practice law). In addition, respondent admits he has violated the following provisions of the Rules of Professional Conduct, Rule 407, SCACR: Rule...