In re Dickey, 27066.

• Decision Date: 15 December 2011
• Docket Number: No. 27066.,27066.
• Citation: 395 S.C. 336,718 S.E.2d 739
• Court: South Carolina Supreme Court
• Parties: In the Matter of James H. DICKEY, Respondent.

395 S.C. 336

718 S.E.2d 739

In the Matter of James H. DICKEY, Respondent.

No. 27066.

Supreme Court of South Carolina.

Heard Oct. 6, 2011.Decided Nov. 21, 2011.Rehearing Denied Dec. 15, 2011.

Lesley Coggiola, Disciplinary Counsel, and Barbara M. Seymour, Deputy Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel.

James H. Dickey, of Atlanta, Georgia, pro se Respondent.

PER CURIAM.

In this attorney disciplinary matter, the Commission on Lawyer Conduct (“Commission”) investigated eight allegations of misconduct against James H. Dickey (“Respondent”). The allegations accused Respondent of, among other things, making false representations to judges and opposing counsel, failing to diligently pursue litigation matters, failing to comply with a fee dispute award and several court orders, engaging in conflicts of interest, and practicing law while on Interim Suspension. The Office of Disciplinary Counsel (“ODC”) filed formal charges against Respondent.

A Hearing Panel of the Commission (“Hearing Panel”) issued its Panel Report, finding Respondent had committed misconduct and recommended that Respondent: (1) be disbarred; (2) be ordered to pay the costs of the proceedings, attend the Legal Ethics and Practice Program and Trust Account school, and pay the fee dispute award prior to petitioning for reinstatement; (3) pay a fine in an appropriate amount; and (4) comply with such other directives as this Court deems appropriate. Respondent raises seven exceptions to the Panel Report. We find Respondent committed misconduct and impose the following sanctions: a definite suspension of two years, which shall run retroactively to the date of Respondent's Interim Suspension; payment of the costs of these proceedings; and payment of $1,750 to a client as directed by the South Carolina Bar Fee Disputes Resolution Board.

I. Factual/Procedural History

Respondent, whose office is located in Atlanta, Georgia, is licensed to practice law in South Carolina. The complaints that formed the basis of this disciplinary action involve Respondent's conduct from 2001 through 2006.

In 2005, an attorney filed a complaint against Respondent, alleging Respondent created a fictitious medical record in conjunction with a 1998 automobile accident case. This complaint precipitated Respondent's Interim Suspension on September 27, 2005. The Formal Charges in this case were not filed until March 10, 2009.¹ The Hearing Panel heard testimony on the eight complaints over the course of January 27, 28, 29, and March 22, 2010, and ultimately issued its report on March 15, 2011, wherein it recommended that Respondent be disbarred.

A. Allegations of Misconduct

Respondent faced formal disciplinary charges in connection with the following eight matters:

1. Medical Record Matter

Respondent was retained to represent a client who was injured in an automobile accident that occurred on May 3, 1995, in Hartsville, South Carolina. Medical records indicate the client received injuries to her head, neck, and right knee. Six days after the accident, the client sought follow-up care for headaches and knee pain. The medical record from this follow-up visit made no mention of any complaint concerning the client's heart, and instead noted that the “heart has regular rate and rhythm w/o gallops or murmurs.”

Approximately one year later, the client began to experience chest discomfort while working out at the YMCA. Then, while at work on July 31, 1996, the client experienced recurrent chest discomfort and was taken to the Byerly Hospital where she was diagnosed as having had a “myocardial infarction.” Subsequently, she underwent treatment at Providence Hospital for that condition. In a medical record dated July 31, 1996, the client's condition was described as “a history of recent exertional chest discomfort” that had been ongoing for the “last two months.” The record also states that the client was “[n]egative for a prior history of heart problems,” and concludes that the client had suffered an “[a]cute inferior posterior myocardial infarction.”

In 1998, Respondent filed a lawsuit on behalf of the client against the at-fault driver in the 1995 automobile accident. On April 27, 1998, Respondent sent a document, which appeared to be a medical record,² as part of the settlement package to the insurance company (Unisun) for the at-fault driver. Subsequently, Unisun's claims representative provided Respondent's case documents to Andrew McLeod, an attorney retained by Unisun. McLeod testified that he settled the case for the $15,000 policy limit, but clarified that he did not participate in the negotiations and primarily drafted the Covenant Not to Execute. He did, however, believe the document was part of the client's medical records.

In March 2000, Respondent filed an amended lawsuit for underinsured motorist coverage. Lawrence Orr, the attorney who represented the insurance company (Horace Mann) in the underinsured motorist coverage claim, received Respondent's case documents from McLeod. This package, as well as Respondent's discovery, included the document that attributed client's heart problems to the 1995 automobile accident. Orr discovered that the document was not included in the medical records he independently subpoenaed from the client's medical providers.

Months after settling the case, Orr reported the matter to the ODC by letter dated March 7, 2005. On March 24, 2005, Larry Huffstetler, Special Investigator for the South Carolina State Attorney General's Office, received the purported medical document. That same day, Respondent came to the ODC's office to deliver documents pursuant to a subpoena in another disciplinary matter. Upon his arrival, Respondent was taken to a conference room and questioned by Investigator Huffstetler and Assistant Deputy Attorney General Robert Bogan about the document. Respondent denied that he had “manufactured or created any medical record” and “offered no explanation concerning the source of the suspected false medical record.” Based on this matter, this Court placed Respondent on Interim Suspension beginning September 27, 2005.

During the subsequent investigation and at the panel hearing on the formal charges, Respondent admitted he had directed an assistant to create the document. Although Respondent acknowledged the document had the appearance of a medical record, he denied producing it to Unisun or Orr as evidence of a medical record. Instead, Respondent claimed that his purpose for creating and producing the document was only to communicate his theory of the case during settlement negotiations, which was that any settlement for the 1995 automobile accident should include expenses for treatment of the client's heart condition. Respondent further explained that he had attached a “sticky note” to the document to apprise Orr that this document was not a medical record, but rather, his version of the damages. Orr testified there was no such note attached to the documents that he received.

2. Unauthorized Practice of Law

On June 30, 2005, Respondent filed a lawsuit against a nursing home and other medical care providers, naming himself as plaintiff “individually and as personal representative of the estate of Ruth S. Dickey, deceased” and asserting claims for wrongful death, gross negligence, and breach of contract.

After Respondent was placed on Interim Suspension for the Medical Record Matter, the circuit court granted summary judgment to the nursing home on October 12, 2005. Respondent filed a motion to reconsider, signing it “James H. Dickey, pro se.” In denying the motion, the court referenced Dickey's Interim Suspension and stated that “[w]hile Mr. Dickey is authorized to file this pleading in his individual capacity, he is not in a position to file this pleading on behalf of the Estate.” As a result, the court concluded that “Mr. Dickey's efforts to file pleadings on behalf of the Estate by virtue of his being the Personal Representative are not proper and not effective, is an unauthorized practice of law and are not being considered by the Court....” ³

On May 26, 2006, Respondent appeared in circuit court to oppose a motion for summary judgment that was filed by another defendant in the above-referenced lawsuit. The circuit court continued the hearing and ordered Respondent to retain counsel and respond to matters pending in the case no later than June 26, 2006. The circuit court granted summary judgment when it did not receive responsive pleadings and neither Respondent nor counsel for the Estate appeared at the hearing on October 3, 2006. The court further ordered that “ all claims made on behalf of the estate of Ruth S. Dickey against [defendant] are dismissed for failure to prosecute, as well as failure to comply with this Court's prior Order [to retain counsel and respond not later than June 26, 2006].” ⁴

3. Fee Dispute Matter

In October 2000, Hieshia Wright consulted Respondent about an employment discrimination claim. A time sheet summary prepared by Respondent reveals that Respondent began work on Wright's case after this initial consultation. On February 5, 2001, Respondent met with Wright and her husband at a Columbia library and wrote the following on the back of a business card:

$125 pd; consultation. Retainer Fee $1500 plus $250 (preparation and court cost) Will Return $1500 if case not filed for suit. 2/5/01

On July 10, 2001, Respondent mailed Wright a proposed Complaint for her approval. In the transmittal letter, Respondent indicated that there were “strong” claims to be pursued and that the deadline for filing was August 25, 2001. Respondent never filed the lawsuit.

On August 29, 2001, Wright wrote Respondent expressing her “disappointment” with his representation and requesting a refund of $1,750, the amount paid on February 5, 2001. Respondent disputed Wright's entitlement to a refund based on her misunderstanding regarding the terms of Respondent's...