In re Sturkey, 26426.
| Decision Date | 28 January 2008 |
| Docket Number | No. 26426.,26426. |
| Citation | 657 S.E.2d 465,376 S.C. 286 |
| Parties | In the Matter of O. Lee STURKEY, Respondent. |
| Court | South Carolina Supreme Court |
In this attorney disciplinary matter, the Office of Disciplinary Counsel (ODC) filed formal charges against respondent, O. Lee Sturkey, alleging misconduct in eight different criminal matters. Sturkey failed to answer, and he was found to be in default. After a hearing, both the sub-panel and the full panel of the Commission on Lawyer Conduct recommended that respondent be sanctioned with: a nine-month definite suspension; mandatory compliance with a law office management assistance program as a condition of reinstatement; and payment of costs of the proceedings. We impose the recommended sanction. However, we address ODC's argument on appeal that the Commission erred in allowing certain evidence to be considered in mitigation without giving ODC the opportunity to present counter-testimony.
Respondent, the part-time public defender for McCormick, Edgefield, and Saluda counties, had a caseload averaging more than 700 cases per year. Eight complaints against him by clients or spouses of clients were received by ODC. Respondent failed to respond to the formal charges, and he was held in default. The factual allegations regarding the eight matters, as admitted by virtue of respondent's default, are as follows: (1) ODC received a complaint from Client A alleging respondent failed to adequately represent him in a criminal matter; (2) ODC received a complaint from Client B alleging respondent failed to adequately communicate with him regarding a criminal matter and that he failed to appear in court; (3) ODC received a complaint from Client C alleging respondent failed to pursue his client's objectives and failed to adequately communicate with him about his criminal case; (4) ODC received a complaint from Client D alleging respondent failed to pursue his objectives in his criminal matter; (5) ODC received a complaint from Client E alleging respondent failed to provide him with information and documents he requested relating to his criminal case; (6) ODC received a complaint from. Client F alleging respondent failed to adequately communicate with him about his criminal case; (7) ODC received a complaint from Client G alleging respondent failed to diligently pursue his criminal case and failed to respond to his calls and letters; and (8) ODC received a complaint from the husband of Client H, alleging respondent engaged in confidential conversations with Client H in front of law enforcement officers and respondent failed to provide her with competent and diligent representation. Respondent failed to: comply with ODC's initial requests to respond to the complaints of Client A and Client B; respond to the request for a written response in all eight matters; and provide additional information requested by ODC, including client files, in regard to Client A, Client B, Client F, and Client G.
Because respondent admitted the factual allegations by virtue of his default, a hearing was held before the sub-panel solely for the purpose of recommending an appropriate sanction. Despite the fact that respondent only gave ODC notice of witnesses via telephone two days before the hearing, ODC did not object to the presentation of respondent's mitigation witnesses. One of the witnesses was Ervin Maye, the assistant solicitor in charge of McCormick, Edgefield, and Saluda counties. In addition to testifying favorably about his observations of respondent's skills as a trial lawyer and character, Maye began to testify regarding the favorable disposition of some of the criminal matters against the complainants. ODC objected to any testimony regarding the underlying criminal matters, arguing they were deemed admitted by default and any testimony regarding lack of harm would have no bearing on the case. The sub-panel allowed the testimony, limited to whether a client was harmed, and denied ODC's request for a continuance in order to call the complainants to testify to counter the information.
After Maye's testimony regarding the outcome of some of the matters, ODC renewed its objection to the consideration of the outcome of the clients' cases in determining harm because they were not given notice of the purpose of Maye's testimony such that they could present counter testimony regarding harm to clients. The sub-panel ultimately denied the motion, stating it considered all the matters from the complaint deemed admitted via respondent's default.
After presenting the testimony of another character witness, respondent testified. Respondent stated he had a large caseload as a public defender, but he could not explain his failure to respond to ODC's requests other than being completely overwhelmed. Over ODC's objections, respondent also testified regarding the favorable outcomes of the cases involving Clients B, C, D, E, F, and H.
After the hearing, the sub-panel found respondent engaged in misconduct in violation of: Rule 7(a)(1) of the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR (violating a Rule of Professional Conduct); Rule 7(a)(3) (); and Rule 7(a)(5) (). With regard to the specific matters before the sub-panel, it found respondent violated the following rules:
(1) Rule 1.4, RPC (failure to communicate with a client) with regard to Clients B, C, E, F, and G;
(2) Rule 1.2, RPC (failure to pursue client's objectives and scope of representation) in the matters involving Clients C and D;
(3) Rule 1.3, RPC (failure to represent with due diligence) with regard to Clients G and H; and
(4) Rule 1.1, RPC (competence), and Rule 1.6 (confidentiality) with regard to Client H.
The sub-panel considered as aggravating factors: (1) respondent's prior disciplinary history and failure to comply with the requirement that he change the way he ran his office; (2) his pattern of misconduct and multiple offenses; (3) his failure to respond to or cooperate with ODC,; and (4) his substantial experience practicing law. The sub-panel considered as mitigating factors the evidence of respondent's good character and abilities as a trial lawyer. With regard to the evidence that there was no harm to clients, the sub-panel stated:
We recognize that client harm is a subjective factor difficult to measure when clients plead guilty, but we do consider the apparent lack of harm as a mitigating factor for which we give appropriate weight in our discretion as a panel. As a result of Respondent's failure to answer the formal charges, it is undisputed that Respondent failed to adequately communicate with his clients in the [Client B], [Client C], [Client E], [Client F], and [Client G] matters; that he failed to adequately pursue his clients' objectives in the [Client C] and [Client...
To continue reading
Request your trial
-
In re Atwater
... ... See In re Sturkey, 376 S.C. 286, 290, 657 S.E.2d 465, 467 (2008) (stating panel considered prior [725 S.E.2d 693] disciplinary history and pattern of misconduct in ... ...
-
In re Moses
... ... Citing In re Boyd, 388 S.C. 516, 697 S.E.2d 603 (2010), In re Sturkey, 376 S.C. 286, 657 S.E.2d 465 (2008), and In re McFarland, 360 S.C. 101, 600 S.E.2d 537 (2004), Respondent argues the Panel should have considered ... ...
- Doe v. Baby Girl
-
In re Atwater
... ... submitted to ODC, together with other acts of misconduct, justified a two-year suspension and requiring the payment of costs); In re Sturkey, 376 S.C. 286, 657 S.E.2d 465 (2008) (finding a nine-month suspension, the payment of costs, and participation in a law office management program was ... ...