In re Cromartie
| Decision Date | 25 January 2013 |
| Docket Number | No. 27206.,27206. |
| Citation | 736 S.E.2d 856,401 S.C. 265 |
| Parties | In the Matter of Ernest W. CROMARTIE, II, Respondent. Appellate Case No. 2012–210367. |
| Court | South Carolina Supreme Court |
OPINION TEXT STARTS HERE
Disciplinary Counsel Lesley M. Coggiola and Deputy Disciplinary Counsel Barbara M. Seymour, both of Columbia, for Office of Disciplinary Counsel.
J. Steedley Bogan, of Columbia, for Respondent.
In this attorney disciplinary action, the Commission on Lawyer Conduct (“the Commission”) considered Formal Charges filed against attorney Ernest W. Cromartie, II (“Respondent”) that arose from: (1) Respondent's plea of guilty to one count of federal income tax evasion and two counts of aggravated structuring; and (2) Respondent's failure to maintain adequate financial records related to client transactions. A Hearing Panel of the Commission (“the Panel”) found Respondent had committed misconduct and, in turn, recommended that Respondent be: (1) disbarred retroactively to the date of his interim suspension; (2) ordered to pay the costs of the disciplinary proceedings, which total $1,359.70, within thirty days; (3) required to complete the Legal Ethics and Practice Program Ethics School and the Trust Account School prior to readmission; and (4) subject to two years of trust account monitoring by the Commission upon his readmission to the practice of law.
During oral argument before this Court, Respondent agreed to resign from membership in the South Carolina Bar.1 Due to Respondent's age and ailing health, we accept Respondent's irrevocable resignation with the condition that he may never practice law in this state. Although Respondent's misconduct warrants the sanction of disbarment,we find Respondent's irrevocable resignation is a more severe sanction because Respondent is now permanently precluded from practicing law in this state. In contrast, a sanction of disbarment would permit Respondent to file a petition for reinstatement after five years from the date of the entry of the order of disbarment. Our decision also serves the primary purpose of disbarment, which is to protect the public from unscrupulous lawyers and not retribution as Respondent has already been punished by the criminal justice system. Accordingly, we accept Respondent's irrevocable resignation and order him to pay the costs of the disciplinary proceedings as recommended by the Panel.
Respondent, who is now sixty-seven years old, was admitted to the practice of law in South Carolina on April 11, 1973.
On April 10, 2000, the Court accepted an Agreement for Discipline for a Public Reprimand stemming from Respondent's admitted misconduct involving his failure to: (1) conduct monthly reconciliations of his law firm's real estate account; (2) ensure that associates and non-lawyer employees conducted such reconciliations; (3) maintain a trial balance in the real estate trust account or a running balance for each client by identifying whose money was in the account at any given time; and (4) supervise non-lawyer employees who were responsible for ensuring that correct wiring instructions were given to lenders for funds to be wired to the real estate trust account. Respondent was also found to have committed misconduct by issuing a number of checks from the general escrow account without properly identifying them. In re Cromartie, II, 340 S.C. 54, 530 S.E.2d 382 (2000).
On October 21, 2005, pursuant to an agreement entered into between Respondent and Disciplinary Counsel, the Commission issued Respondent a Letter of Caution without a finding of misconduct 2 and a Confidential Admonition 3 stemming from similar misconduct that was the subject of the Public Reprimand in 2000.
On March 9, 2010, Respondent was placed on interim suspension after he pled guilty to one count of Evasion of Income Tax Payments in violation of 26 U.S.C. § 72014 and two counts of Aggravated Structuring in violation of 31 U.S.C. § 5324(a)(3).5In re Cromartie, II, 387 S.C. 66, 690 S.E.2d 776 (2010). As a result of his guilty plea, Respondent was sentenced to three concurrent sentences of twelve months and one day. Additionally, Respondent was ordered to immediately pay a special assessment of $300 to the federal court and to pay $58,075.86 to the Internal Revenue Service (“IRS”) during his three years of supervised release.
The Office of Disciplinary Counsel (“ODC”) filed Formal Charges against Respondent on July 21, 2011, alleging he committed misconduct based on his convictions in federal court and his failure to maintain adequate trust account records.
As to Respondent's criminal conduct, ODC incorporated the federal documents underlying Respondent's guilty plea and explained that Respondent, between 2004 and 2009, engaged in a pattern of disbursement of earned fees from his client trust accounts that constituted illegal structuring in at least ten client matters. ODC further noted that, in at least one client matter, Respondent disbursed settlement proceeds to a client from his client trust accounts in a manner that constituted illegal structuring.
In terms of Respondent's inadequate financial recordkeeping, ODC noted that Respondent hired a full-time bookkeeper following his Public Reprimand in 2000. ODC alleged that Respondent did not: (1) supervise her or review any records, reports, or reconciliations; (2) provide her with specific instructions or continuing education about client trust accounting; (3) know what software she used or provide a backup system for her; (4) maintain accurate client ledgers or an accurate accounting journal for any of his six client trust accounts; and (5) retain complete copies of his bank statements, records of deposit, or canceled checks. Based on these deficiencies, Respondent was unable to find accounting records on his bookkeeper's computer and, as a result, could not provide an accurate accounting of disbursements or the balances in his accounts.
On October 18, 2011, Respondent filed his Answer to the Formal Charges. Although Respondent admitted to the material portions of the allegations, he explained that there were no client funds missing from his trust accounts and that his trust accounts had a positive balance at the time he was placed on interim suspension. Respondent further claimed that he had in fact earned the client fees but, due to his inadequate financial records, could not “determine the identity of the ownership of these funds sufficiently to make a claim on them.” Finally, Respondent denied that his conduct demonstrated an unfitness to practice law.
The Panel conducted a hearing on January 31, 2012. During the hearing, Respondent testified regarding his personal and educational background as well as his professional accomplishments in public service, particularly as a twenty-eight-year member of the Columbia City Council. Additionally, Respondent offered evidence of his good character through the testimony of former Mayor Robert D. Coble and Hamilton Osborne, Jr., with whom he served on the Columbia City Council. Respondent also submitted documents that outlined his extensive professional and community achievements.
Although Respondent did not contest the Formal Charges, he appeared before the Panel to oppose the potential sanction of disbarment. Instead, he requested to be “forever” suspended in order to avoid the “stigma” of being disbarred, particularly for the sake of his son who is a practicing attorney with the same name as Respondent. Respondent also took “full responsibility” for his conduct and emphasized that he did not intend to practice law in the future.
Based on the information provided during the disciplinary proceedings and Respondent's federal guilty plea,6 the Panel found Respondent's criminal conduct violated the following Rules of Professional Conduct (“RPC”) contained in Rule 407, SCACR: Rule 8.4(b) (); Rule 8.4(d) (); and Rule 8.4(e) ().
The Panel also found that Respondent's admissions regarding his neglect of his trust accounts, failure to supervise his bookkeeper, and failure to maintain required financial records constituted clear and convincing evidence that Respondent violated the following RPC: Rule 1.15(a) ( ) 7; Rule 5.3 (); and Rule 8.4(e) (). Finally, the Panel found Respondent's admissions regarding his financial recordkeeping constituted clear and convincing evidence that Respondent violated the provisions of Rule 417, SCACR, which identifies the requirements of a lawyer's financial recordkeeping.
The Panel concluded Respondent's conduct constituted grounds for discipline under the following provisions of the Rules...
To continue reading
Request your trial