IN RE NORFLEET, 25803.
| Decision Date | 12 April 2004 |
| Docket Number | No. 25803.,25803. |
| Citation | 358 S.C. 39,595 S.E.2d 243 |
| Court | South Carolina Supreme Court |
| Parties | In the Matter of Daniel F. NORFLEET, Respondent. |
Attorney general Henry Dargan McMaster and Senior Assistant Attorney General James G. Bogle, Jr., both of Columbia, for the Office of Disciplinary Counsel.
Daniel F. Norfleet, of Summerville, pro se.
In this attorney disciplinary matter, formal charges were filed against Respondent four times between December 12, 2000 and June 13, 2001. On March 26, 2002, a hearing was held to address the various charges. The full panel of the Commission on Lawyer Conduct ("Commission") adopted the sub-panel's report, and recommended Daniel F. Norfleet ("Respondent") be suspended from the practice of law for a period of two years, with conditions. The Commission recommended Respondent be required to undergo instruction in law office management, with a particular emphasis on trust account management, along with counseling in civility and appropriate conduct toward clients and others. The Commission also recommended that Respondent be required to make restitution to Wayne Howard in the amount of $8,381.52 and to pay the costs of the Commission's proceedings, in the amount of $2,164.37. We find the gravity of Respondent's misconduct justifies harsher sanctions. Therefore, we hereby impose an indefinite suspension, with conditions, effective as of the date of this opinion.
The Byron Matter (Charlotte Riley Complaint)
The Commission found Respondent made false statements, commingled funds, and mismanaged his trust account in connection with this matter.
Respondent was the closing attorney in a real estate transaction for Patrick Byron in February 2002. As a result of the closing, two loans with Carolina First Bank were to be satisfied. Respondent's first check, issued from his trust account satisfied the first mortgage. The second check, made payable to Carolina First Bank in the amount of $8,739.77, for satisfaction of the second mortgage, was returned for non-sufficient funds.1 The second check was used to purchase two certified checks from Carolina First Bank in the amounts of $8,731.44 and $8.33.
Respondent's wife, who was serving as his bookkeeper, secretary, and office manager testified she used the second trust account check to purchase the two cashiers checks and was aware that the account may not have had sufficient funds to cover the trust account check. She testified she concealed her actions from her husband. The Commission found the requirements of Rule 417, SCACR, regarding use, balancing, and maintenance of a trust account were incumbent on Respondent, not his wife.
During this same time period, Respondent represented Wayne Howard in a Workers Compensation case. The case settled and the attorney for the defendant's insurance carrier mailed Respondent a letter enclosing a draft payable jointly to Mr. Howard and Respondent in the amount of $8,381.51. The letter accompanying the draft instructed Respondent not to negotiate the insurance company's draft until he had completed and mailed to opposing counsel the Final Lump Sum Agreement and Release, with the endorsement of the Workers Compensation Commission. Respondent did not follow the instructions in the letter. The draft, drawn on the account of Huron Insurance Company, was endorsed by Respondent's wife and deposited in Respondent's trust account. With this deposit, sufficient funds were on deposit in Respondent's trust account to purchase another check, payable to Carolina First Bank in the amount of $8,739.77, which was used to pay off the Byron's second mortgage.
The Commission found Respondent made a false statement to Wayne Howard in a letter dated August 4, 2000, in which he stated the settlement check he had received was stale and must be reissued. The Commission concluded Respondent misrepresented to his client Respondent's receipt of the settlement check.
The Commission found Respondent commingled funds. On January 7, 2000, Respondent closed a real estate transaction between Vaughan Homes and Rebecca Moore. Respondent issued a trust account check for $2,378.25, dated January 7, 2000, payable to Vaughan Realty, Inc., as commission. The check was returned for non-sufficient funds.
Matthew Neylon, an official with Vaughan Homes, Inc., telephoned Respondent's office several times. Neylon received a cashier's check from Respondent's office in satisfaction of the commission obligation.
The Commission concluded that since the Vaughan Realty check had been returned, monies used to replace it must have come from a source other than the Vaughan/Moore real estate closing.
In connection with the following incidents, the Commission found Respondent failed to maintain control over his trust account.
Respondent wrote a check for $950 from the Wyckoff and Norfleet trust account to pay his office rent. Additionally, the Commission received evidence showing the trust account had a negative balance in December 1999, February 2000, and March 2000. Between December 1, 1999, and March 31, 2000, Respondent had six instances of overdraft fees and seven instances of NSF fees.
Respondent failed to reply to two letters from the Commission concerning the Byron real estate transaction. Additionally, Respondent did not reply to the Commission's Notice of Full Investigation, which was returned unclaimed by the postal service following three attempts of service.
The Commission found Respondent failed to withhold from his employees certain taxes on behalf of the State of South Carolina, thereby breaching his fiduciary duty owed to the State of South Carolina. The Commission received into evidence a series of South Carolina Department of Revenue Warrants for Distraint filed against Respondent. Additionally, Respondent has not filed personal income tax returns since 1996.
The sub-panel found Respondent had committed attorney misconduct, in violation of the Rules of Professional Conduct, Rule 407, SCACR, and Rule 7 of Rule 413, SCACR. The subpanel found violations of numerous provisions of Rule 407, particularly Rule 1.1 (competence); Rule 1.3 (diligence); Rule 1.15 (safekeeping property); Rule 1.5 (fees); Rule 4.1 (); Rule 8.1(b)(knowingly failing to respond to a lawful demand for information from a disciplinary authority); and Rule 8.4 (misconduct), subsections (a) (), (c) (conduct involving moral turpitude) and (d) (conduct involving dishonesty, fraud, deceit or misrepresentation) and (e) (conduct prejudicial to the administration of justice).
From Rule 7 of Rule 413, Rules for Lawyer Disciplinary Enforcement, SCACR, the sub-panel found Respondent had violated Rule 7(a)(1) (violating a Rule of Professional Conduct;); Rule 7(a)(5) (); Rule 7(a)(6) (); and Rule 7(a)(3) ().
Respondent represented Leroy Ferrell in a post-conviction relief matter. Ferrell's case was dismissed. Ferrell testified that he requested Respondent appeal the order of dismissal, but Respondent failed to do so. Respondent testified he did not appeal the order because he believed it was not meritorious.
The Commission did not find clear and convincing evidence of attorney misconduct, finding "credence in Respondent's contention that he believed further appeal on Mr. Ferrell's behalf would have been fruitless."
The Commission concluded Respondent failed to respond to a Notice of Full Investigation mailed to Respondent on or about November 2, 2000, in connection with the Leroy Ferrell matter. The notice was returned as unclaimed by the U.S. Postal Service.
Respondent stated he was living in Florida at the time of the November 2, 2000, mailing and that he advised the Commission of his whereabouts. Although the Commission found there was evidence that Respondent failed to respond, the Commission found Respondent's contention he was living in Florida to be a mitigating factor.
The sub-panel found Respondent committed attorney misconduct, in violation of the Rules of Professional Conduct, Rule 407, SCACR, and Rule 7 of Rule 413, SCACR. The subpanel concluded Respondent violated Rule 1.1 (competence), Rule 8.1(b) (), and Rule 8.4, subsections (a) (violating a Rule of Professional Conduct) and (e) (conduct prejudicial to the administration of justice).
The Commission concluded Respondent committed two violations in connection with his representation of Jimmy Ray Stroud in litigation against Randy and Christina Read and Christina's parents Mr. and Mrs. Rickard. The litigation primarily involved visitation disputes concerning Mary Paige Stroud, a daughter born to Jimmy Ray Stroud and Christina Read during their marriage.
Mary Paige Stroud was enrolled at Hilton Head Elementary School. Gretchen Keefner, a principal at the school, testified Respondent unexpectedly came to the school and requested to view Paige's school records and visit with her. Keefner testified Respondent did not present any identification and was dressed in casual attire. Keefner further testified Respondent became verbally abusive when she refused him access to her file. Specifically, Keefner testified Respondent threatened to sue her personally and have her fired if she did not turn over the...
To continue reading
Request your trial
-
In the Matter of William Gary White
...letter could have served other purposes does not prevent his conduct from being in violation of Rule 4.4(a). See, e.g., In re Norfleet, 358 S.C. 39, 595 S.E.2d 243 (2004) (finding an attorney who became angry and spoke in a threatening manner to a school principal who refused to turn over a......
- In re Oxner