In re Swan, Appellate Case No. 2017-002129
| Decision Date | 14 March 2018 |
| Docket Number | Opinion No. 27780,Appellate Case No. 2017-002129 |
| Citation | 811 S.E.2d 777,422 S.C. 328 |
| Parties | In the MATTER OF John W. SWAN, Respondent. |
| Court | South Carolina Supreme Court |
John S. Nichols, Disciplinary Counsel, and C. Tex Davis Jr., Senior Assistant Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel.
Joseph C. Wilson, IV and Carl Everette Pierce, II, both of Pierce, Herns, Sloan & Wilson, LLC, of Charleston, for Respondent.
In this attorney disciplinary matter, respondent and the Office of Disciplinary Counsel (ODC) have entered into an Agreement for Discipline by Consent (Agreement) pursuant to Rule 21 of the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court Rules (SCACR). In the Agreement, respondent admits misconduct and consents to the imposition of a public reprimand. We accept the Agreement and issue a public reprimand. The facts, as set forth in the Agreement, are as follows.
Respondent represented Client in a criminal matter. Concerned that Client was suffering from a medical emergency and that the medical treatment Client was receiving in jail was inadequate, respondent paid Client's bond. When Client ran out of money to pay for the motel room where she was living, and was at risk of having to live on the street, respondent, with his wife's permission, allowed Client to stay at respondent's house with respondent and his wife for two to three nights. Respondent's wife provided Client with clothing. Respondent provided assistance to Client, including monetary assistance, in obtaining a driver's license, car insurance, and a new cell phone. Respondent also aided Client in signing up for inpatient drug rehabilitation. Respondent briefly employed Client in his law office. Respondent represents that he had negotiated a tentative plea agreement with the solicitor and believed the matter would be concluded based on that agreement at the time he began providing financial assistance to Client.
All of the funds advanced to Client came from respondent's operating account or personal funds, and respondent expected to be repaid from Client's anticipated tax refund. Client gave respondent a power of attorney so that respondent could receive the tax refund and secure repayment of the funds advanced. Respondent maintains the funds provided to Client did not encourage Client to pursue any litigation and did not provide respondent with a financial stake in any litigation. See Rule 1.8, cmt. 10, RPC, Rule 407, SCACR.
On several occasions, respondent made sexually inappropriate comments to Client on the telephone while she was in jail, and on one occasion did the same with another client who was in jail. There is no evidence, nor have the clients claimed, respondent had sexual relations or engaged in any other inappropriate or unwarranted touching with either client, including with Client while she was staying in his home. There is also no evidence respondent requested sexual services in exchange for anything.
Respondent asserts he believed at the time the comments were made that they "were merely ‘raunchy' banter or jokes between jailed clients with a difficult past and their attorney" and that they were part of private conversations that he never imagined would become public. Respondent now acknowledges the inappropriate nature of the comments. Indeed, our review of the portions of the telephone conversations at issue revealed respondent's comments to be sexually explicit and highly offensive in nature. We find such comments made to a client by a member of the legal profession are entirely inappropriate and they will not be tolerated.
On one occasion, respondent delivered electronic cigarettes to two clients in jail. He deliberately concealed the transfer by positioning his body in order to block the surveillance camera. A second delivery to one of the clients was foiled when an officer monitoring the surveillance camera in the visitation room witnessed respondent physically embracing the client and subsequently confiscated the electronic cigarette from the client. Electronic cigarettes were sold at the jail's commissary, and, under South Carolina law, are not considered contraband or a form of tobacco products, which are banned at the jail. See S.C. Code Ann. § 16-17-501 (2015) (defining electronic cigarette); S.C. Code Ann. § 24-7-155 (Supp. 2017) (matters considered contraband); S.C. Code Reg. 33-1 (2011) (). However, as an attorney, respondent was afforded special privileges by the jail facility and his delivery of the electronic cigarettes to his clients violated the trust the jail had in him as a member of the Bar.
Respondent admits his conduct violated the following provisions of the Rules of...
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