In re Chastain

Decision Date15 May 2000
Docket NumberNo. 25123.,25123.
Citation532 S.E.2d 264,340 S.C. 356
CourtSouth Carolina Supreme Court
PartiesIn the Matter of Randall M. CHASTAIN, Respondent.

A. Camden Lewis and Mark W. Hardee of Lewis, Babcock & Hawkins, L.L.P., of Columbia, for respondent.

Senior Assistant Attorney General James G. Bogle, Jr., of Columbia, for the Office of Disciplinary Counsel.

PER CURIAM:

In this attorney grievance matter, we must decide whether to sanction Randall M. Chastain (Respondent) following his conviction in a criminal case that involved a matter for which we had sanctioned Respondent in a prior disciplinary proceeding. We choose not to impose an additional sanction in this case.

PROCEDURAL BACKGROUND

Six years ago, this Court found that Respondent committed misconduct in nine cases by neglecting legal matters, failing to respond to clients' telephone calls and letters, failing to return unused retainer fees, and failing to respond to inquiries by disciplinary authorities. The Court imposed a two-year definite suspension on Respondent and ordered him to pay $30,790 in restitution to his clients before applying for readmission to the Bar. Matter of Chastain, 316 S.C. 438, 450 S.E.2d 578 (1994).1

The misconduct relating to the retainer fees included a $5,000 retainer paid by client David Farmer and a $3,500 retainer paid by client Hoyt M. Housand, Jr. Id. In September 1995, a Richland County grand jury indicted Respondent on two counts of breach of trust with fraudulent intent in violation of S.C.Code Ann. § 16-13-230 (Supp.1999). The charges arose out of the retainers he failed to return to Farmer and Housand. A jury found Respondent guilty of the charge involving Farmer. Respondent was sentenced in February 1998 to eighteen months in prison.

In July 1998, an investigative panel of the Commission on Lawyer Conduct (Commission) instituted formal charges against Respondent. The formal charges alleged that Respondent's breach of trust conviction in the Farmer case constituted misconduct under Rule 7(a) of the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413, SCACR. Respondent moved to dismiss the charges. After a hearing, a subpanel recommended in November 1998 that Respondent's motion be denied. The subpanel found Respondent's conviction to be a ground for discipline in Rule 7(a), RLDE, but recommended that no additional sanction be imposed because Respondent already had been sanctioned by the Court for the misconduct at issue, i.e., the failure to return Farmer's money. The full panel adopted the subpanel's report.

In December 1998, Senior Assistant Attorney General James G. Bogle, Jr., representing the Office of Disciplinary Counsel (disciplinary counsel), agreed with the panel's finding of misconduct but objected to its decision not to impose any additional sanction on Respondent.

ISSUE
May a lawyer who has been sanctioned for improperly failing to return a retainer be sanctioned a second time after he is convicted of a criminal charge stemming from his failure to return that same retainer?
DISCUSSION

Respondent concedes he may be disciplined by the Court for failing to return the retainer and then criminally prosecuted in that same case. However, Respondent argues it would violate the Double Jeopardy Clause and be unfair to sanction him a second time for failing to return Farmer's retainer after he was criminally convicted in the matter. The conviction was simply additional evidence of misconduct that, if it had been obtained earlier, could have been admitted as evidence against Respondent in the original disciplinary proceeding, he argues.

Disciplinary counsel contends that double jeopardy is not implicated because a disciplinary matter is a civil proceeding, not a criminal proceeding. Respondent's conviction is sanctionable misconduct under Rule 7.4(a)(4), RLDE, and Rule 8.4(b) of the Rules of Professional Conduct (RPC) contained in Rule 407, SCACR.2 Disciplinary counsel asserts it is proper for Commission to recommend an additional sanction because the conviction itself is a separate basis for sanction under the rules.

We will first address the double jeopardy issue, then discuss the propriety of an additional sanction.

A. DOUBLE JEOPARDY

The Fifth Amendment to the United States Constitution provides that "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb...." The South Carolina constitution contains an almost identical provision. S.C. Const. art. I, § 12 ("No person shall be subject for the same offense to be twice put in jeopardy of life or liberty"). Although we have held that a disciplinary proceeding is not criminal in nature, see Burns v. Clayton, 237 S.C. 316, 331, 117 S.E.2d 300, 307 (1960),

we have not previously addressed whether the Double Jeopardy Clause is implicated when a lawyer is both disciplined and criminally prosecuted for the same misconduct.

The Double Jeopardy clause protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. State v. Nelson, 336 S.C. 186, 519 S.E.2d 786 (1999); State v. Price, 333 S.C. 267, 510 S.E.2d 215 (1998); State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997); State v. Owens, 309 S.C. 402, 424 S.E.2d 473 (1992). However, the Double Jeopardy Clause is implicated only in criminal proceedings. Hudson v. United States, 522 U.S. 93, 103-05, 118 S.Ct. 488, 495-96, 139 L.Ed.2d 450, 461-63 (1997) (holding that double jeopardy did not prohibit criminal prosecution for conspiracy and violation of banking laws where federal regulatory agency had imposed money penalties and debarment in prior civil administrative proceeding); Helvering v. Mitchell, 303 U.S. 391, 398-405, 58 S.Ct. 630, 633-36, 82 L.Ed. 917, 921-25 (1938) (holding that double jeopardy did not prohibit government from imposing a civil assessment against an individual in a tax fraud case where the individual had been acquitted of fraud in a prior criminal case based on same allegations).

Some courts describe disciplinary proceedings against a lawyer as civil in nature. The Wisconsin Supreme Court has explained that

[d]isciplinary proceedings are civil in nature. Disciplinary proceedings do not constitute a second "trial," nor is the sanction which may be imposed a secondary penalty or punishment. Rather, the primary purpose of a disciplinary proceeding is the ascertainment of moral fitness and professional competency of the attorney, and a determination of whether it is necessary for the protection of the public interest that the attorney be disciplined, suspended, or disbarred. These are public interests not addressed by the underlying criminal proceeding. Whatever ancillary punitive effects might be said to attach in a practical sense to an attorney's civil disciplinary proceeding do not violate the state constitutional proscription against being put twice in jeopardy of "punishment" for the same "offense."

Matter of Rabideau, 102 Wis.2d 16, 306 N.W.2d 1, 6-7 (1981) (citations omitted); see also Matter of Discipline of Babilis, 951 P.2d 207, 214 (Utah 1997)

(disciplinary proceedings are civil in nature and do not involve a criminal penalty; goal is to maintain the honesty, integrity and professionalism of the Bar).

Some courts describe disciplinary proceedings as quasi-criminal in nature because the lawyer has certain procedural and substantive rights to ensure due process. See In Re Ruffalo, 390 U.S. 544, 550-51, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117, 121-23 (1968)

; Mississippi State Bar v. Young, 509 So.2d 210, 212 (Miss.1987); Office of Disciplinary Counsel v. Campbell, 463 Pa. 472, 345 A.2d 616, 620 (1975).

Other courts describe disciplinary matters as special proceedings that constitute a class unto themselves because they do not fall squarely into either the civil or criminal categories. The Seventh Circuit Court of Appeals has explained that

it would be well to note that disbarment and suspension proceedings are neither civil nor criminal in nature but are special proceedings, sui generis, and result from the inherent power of courts over their officers. Such proceedings are not lawsuits between parties litigant but rather are in the nature of an inquest or inquiry as to the conduct of the respondent. They are not for the purpose of punishment, but rather seek to determine the fitness of an officer of the court to continue in that capacity and to protect the courts and the public from the official ministration of persons unfit to practice. Thus the real question at issue in a disbarment proceeding is the public interest and an attorney's right to continue to practice a profession imbued with public trust.

In Re Echeles, 430 F.2d 347, 349-50 (7th Cir.1970); see also Fitzsimmons v. State Bar, 34 Cal.3d 327, 193 Cal.Rptr. 896, 667 P.2d 700, 703 (1983)

(attorneys subject to disciplinary proceedings are not afforded all procedural safeguards which are extended to criminal defendants because such proceedings are sui generis as opposed to purely civil or criminal in character); Campbell, 345 A.2d at 619-20 (describing disciplinary proceedings as special proceedings as well as quasi-criminal).

Regardless of the exact label applied, courts uniformly have concluded that the Double Jeopardy Clause is not implicated in disciplinary proceedings. See, e.g., Matter of Caranchini, 160 F.3d 420, 423 (8th Cir.1998)

(while disbarment may be considered punishment in common parlance, attorney discipline, including disbarment and other sanctions, are not punishment for purposes of Double Jeopardy Clause); Young, 509 So.2d at 214 n. 1 ("Most states which have addressed the matter have held that disciplinary proceedings are not so criminal in nature as to evoke double jeopardy protections."); In re Brown, 12 Cal.4th 205, 48 Cal.Rptr.2d 29, 906 P.2d 1184, 1191 (1995) (disciplinary action...

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13 cases
  • In re Waechter
    • United States
    • Washington Supreme Court
    • June 14, 2018
    ...issue have concluded that the double jeopardy clause is not implicated in attorney disciplinary proceedings. See In re Chastain, 340 S.C. 356, 363-64, 532 S.E.2d 264 (2000) (citing In re Caranchini, 160 F.3d 420, 423 (8th Cir. 1998) (while disbarment may be considered punishment in common p......
  • In re Discipline of Hall, No. 40728 (NV 7/15/2004), 40728.
    • United States
    • Nevada Supreme Court
    • July 15, 2004
    ...Griev. Comm'n v. Brown, 517 A.2d 1111 (Md. 1986); Office of Disciplinary Counsel v. Campbell, 345 A.2d 616 (Pa. 1975); In re Chastain, 532 S.E.2d 264 (S.C. 2000); but see State v. Russell, 610 P.2d 1122, 1130 (Kan. 1980) and Mississippi State Bar v. Young, 509 So. 2d 210 (Miss. 1987) (both ......
  • The Mississippi Bar v. Coleman, 2001-BA-00988-SCT.
    • United States
    • Mississippi Supreme Court
    • December 12, 2002
    ...appeal. ¶ 22. This issue was recently considered by one of our sister Courts, the Supreme Court of South Carolina. In re Chastain, 340 S.C. 356, 532 S.E.2d 264 (2000). The issue was whether a lawyer who has been sanctioned under the disciplinary rules for improperly failing to return a reta......
  • Lawyer Disciplinary Bd. v. Stanton, 13–0138.
    • United States
    • West Virginia Supreme Court
    • June 5, 2014
    ...itself, the object of which is not the punishment of the offender but the protection of the court.”). See also, In re Chastain, 340 S.C. 356, 362–63, 532 S.E.2d 264, 267 (2000); In re Mitan, 119 Ill.2d 229, 245–46, 116 Ill.Dec. 179, 518 N.E.2d 1000, 1008 (1987) (“proceedings for reinstateme......
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1 books & journal articles
  • To Err is Human, to Apologize is Hard: the Role of Apologies in Lawyer Discipline
    • United States
    • Georgetown Journal of Legal Ethics No. 34-3, July 2021
    • July 1, 2021
    ...540 (D.C. Ct. App. 2000); In re Kurth, 433 P.3d 679, 692 (Kan. 2019); In re Grigsby, 815 N.W.2d 836, 844 (Minn. 2012); In re Chastain, 532 S.E.2d 264, 268 (S.C. 2000); In re Juarez, 24 P.3d 1040, 1063 (Wash. 2001); ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS, Standard 1.1 (1992). 300. See s......

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