In re Chastain
Decision Date | 15 May 2000 |
Docket Number | No. 25123.,25123. |
Citation | 532 S.E.2d 264,340 S.C. 356 |
Court | South Carolina Supreme Court |
Parties | In 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.
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.
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.
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.
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 (). 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) ( ); Helvering v. Mitchell, 303 U.S. 391, 398-405, 58 S.Ct. 630, 633-36, 82 L.Ed. 917, 921-25 (1938) ( ).
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)
(. )
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).
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)
( ); Campbell, 345 A.2d at 619-20 ( ).
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)
( ); Young, 509 So.2d at 214 n. 1 (); In re Brown, 12 Cal.4th 205, 48 Cal.Rptr.2d 29, 906 P.2d 1184, 1191 (1995) (...
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