In re Yarborough

Decision Date11 February 2002
Docket NumberNo. 25407.,25407.
Citation559 S.E.2d 836,348 S.C. 243
CourtSouth Carolina Supreme Court
PartiesIn the Matter of Ernest E. YARBOROUGH, Respondent.

Attorney General Charles M. Condon and Senior Assistant Attorney General James G. Bogle, Jr., both of Columbia, for the Office of Disciplinary Counsel.

Ernest E. Yarborough, pro se.

PER CURIAM:

In this attorney disciplinary matter, the sub-panel and the full panel recommended respondent Ernest E. Yarborough be definitely suspended for 18 months. We impose an indefinite suspension.

FACTS

The Commission on Lawyer Conduct filed formal charges against respondent regarding four matters. Respondent answered the formal charges and appeared pro se at the hearing. Respondent cross-examined the State's witnesses but did not present any evidence of his own and did not testify in his own defense. The sub-panel issued its report which made findings of misconduct and recommended a definite suspension of 18 months. The full panel adopted the sub-panel's report.

Disciplinary History

Upon being convicted of obstruction of justice,1 respondent was placed on interim suspension on April 3, 1997. In re Yarborough, 326 S.C. 62, 483 S.E.2d 473 (1997). That conviction is not yet final.2

Respondent was suspended from practice for six months on August 4, 1997. In re Yarborough, 327 S.C. 161, 488 S.E.2d 871 (1997). In this matter, the Court found misconduct based on respondent utilizing criminal charges to gain advantage in a civil matter. See Rule 4.5, RPC, of Rule 407, SCACR.

On June 7, 1999, respondent was publicly reprimanded for his improper conduct—making an unwanted sexual advance and inappropriate sexual comments—towards his female client. In re Yarborough, 337 S.C. 245, 524 S.E.2d 100 (1999). Child Support Matter

James B. Loggins is an attorney who represents his client (Mother) in a family court matter against respondent. Respondent and Mother have a child together, and respondent is under a family court order to make child support payments to Mother. Shortly after respondent's interim suspension in April 1997, respondent began falling behind in his child support payments. Initially, he was not held in contempt for his failure to pay. In October 1998, however, the family court found respondent had willfully and intentionally failed to pay at least some of his child support obligation and held respondent in contempt of court.

Following the October 1998 family court order, respondent continued to fall behind in his child support payments. In June 1999, the parties reached an agreement wherein Mother would dismiss the Rule to Show Cause provided that respondent pay $400 to the family court in Richland County by June 15, 1999, and an additional $1,000 by June 28, 1999. Respondent delivered to Loggins a $400 personal check3 made out to the family court, and Loggins forwarded the check. However, the check was returned to respondent's wife because the Richland County Family Court does not accept personal checks. Loggins testified that the $400 check was never replaced or repaid. Moreover, the $1,000 payment agreed to in the consent order was never paid.

Linda Taylor, the family court records custodian, testified that as of January 2001, respondent had an arrearage of $29,237.76. Taylor stated that the last payment made to the family court was in October 1998. Although respondent implied through cross-examination that he had made payments directly to Mother, respondent did not present her as a witness.

Tony Kennedy Matter

As noted above, respondent was convicted of obstruction of justice in 1997. One of the witnesses who testified against respondent was Lemeul "Tony" Kennedy, who worked as a private investigator for respondent. On May 20, 1998, while State v. Yarborough was on appeal, respondent wrote Kennedy a letter. The letter begins as follows: "The time has come for you to face me in a civil trial for the false allegations that you made against me." Respondent states in the letter that Kennedy "conspired with others to do great economic harm to me and my firm." Stating that Kennedy would spend "at least $10,000.00 to defend this lawsuit regardless of the outcome," respondent wrote that the purpose of the letter was to give Kennedy, and his lawyer, "an opportunity to avoid a lawsuit through negotiations." Respondent then gave Kennedy a June 15th deadline to negotiate, otherwise he would file a civil suit seeking $50 million in damages.

Kennedy testified he was initially angry about the letter and that he then became scared because he felt as if respondent was threatening him in order to get him to somehow recant his story or "maybe lie for [respondent] regarding the criminal trial." Kennedy felt that this was the only possible thing that respondent meant by suggesting that they "negotiate."

Respondent, through cross-examination and his closing argument, suggested that he was merely trying to help Kennedy "settle out" of the lawsuit he intends to file. No lawsuit was ever filed by respondent.

The panel was "unpersuaded" by respondent's characterizations of the letter as an attempt to enter into negotiations. The panel found the letter was patently shocking, outrageous, and an attempt to intimidate a witness for the prosecution in the criminal case against respondent. Moreover, the panel found respondent had failed to respond to Disciplinary Counsel's initial inquiry about the letter. Respondent answered subsequent inquiries by Disciplinary Counsel by asserting the Fifth Amendment because he felt he was being accused of a crime. The panel found that respondent, in effect, failed to respond to the notice of full investigation.

Jasper Boykin and Mary White Matters

These two matters involve separate lawsuits brought by Jasper Boykin and Mary White against Allstate Insurance Company. The lawsuits were similar factually, both involved issues of wrongful termination, and Boykin and White knew and had worked with each other. White began her lawsuit pro se but eventually hired respondent as her attorney in late 1996; Boykin retained respondent in or about February 1997. Boykin paid the retainer fees for both lawsuits. The main issue in these matters involves respondent's participation in the lawsuits after he was placed on interim suspension in April 1997.

Respondent and his associate, James Galmore, prepared complaints in the actions, which were filed in state court but removed to federal court. The initial discovery was to be filed by July 1997 and had not been filed when respondent was placed on interim suspension in April 1997. White learned of respondent's suspension from an article in the newspaper. She contacted respondent's office but did not receive a letter from respondent regarding his suspension.

Meanwhile, Galmore filed a motion to be relieved from the Boykin case in July 1997. Galmore asserted, inter alia, that respondent was primary counsel and had been suspended and that he (Galmore) was not competent to handle the issues involved in the cases. Galmore was relieved as counsel. However, in August 1997, Galmore moved to reappear as counsel in the Boykin case because "arrangements" had been made to continue representation.4

On August 1, 1997, Boykin, White, Galmore, and respondent met in Galmore's office. White and Boykin were upset with how their cases had been handled so far. Galmore was hesitant to continue representing them, but respondent was encouraging Galmore to continue to handle their cases. According to the testimony of Galmore, Boykin, and White, respondent stated that he would help Galmore and work "behind the scenes" on the cases.

On that same day, Boykin wrote a check to Galmore for $2,300. He testified that on August 13, he went to respondent's home to complete discovery on his case. Respondent told Boykin the discovery would be promptly finalized and filed with the federal court. Boykin wrote two additional checks that day—one for $1,300 made out to respondent and another to Galmore for $1,000. Respondent also executed promissory notes in favor of Boykin in the amounts of $2,300 and $1,300. Boykin testified that the amounts paid to respondent were not loans, but were legal fees, and the promissory notes were supposed to be respondent's guarantee to perform the work properly.

White's case was dismissed with prejudice in November 1997 for failure to file discovery. After she learned of the dismissal, she telephoned respondent and told him how dissatisfied she was with his handling of the case. When White informed respondent she was going to write a letter to the South Carolina Bar complaining about him, respondent offered to pay White $30,000 to not write the letter.

In December 1997, Galmore again withdrew as counsel in the Boykin case. Boykin eventually retained other attorneys and reluctantly settled his case in April 1998. After Boykin wrote a letter regarding the settlement to federal judge Joe Anderson, Judge Anderson convened a hearing at which many of the details regarding respondent's actions were testified to by Boykin.

DISCUSSION

The panel recommended an 18-month definite suspension and that respondent pay the costs of the proceedings. Neither party filed exceptions to the report. "The failure of a party to file a brief taking exceptions to the report constitutes an acceptance to the findings of fact, conclusions of law, and recommendations." Rule 27, RLDE, of Rule 413, SCACR.

Although this Court is not bound by the findings of the panel, these findings are entitled to great weight, particularly when the inferences to be drawn from the testimony depend on the credibility of the witnesses. E.g., In re Chastain, 340 S.C. 356, 532 S.E.2d 264 (2000); In re Marshall, 331 S.C. 514, 498 S.E.2d 869 (1998). The Court, however, may make its own findings of fact and conclusions of law, and it is not bound by the panel's recommendation. Id. Indeed, the authority to discipline attorneys and the manner in...

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  • In re Tullis, 25413.
    • United States
    • United States State Supreme Court of South Carolina
    • February 11, 2002
  • In re Brooks, 26057.
    • United States
    • United States State Supreme Court of South Carolina
    • October 24, 2005
    ...six test results were submitted to the Court. 2. The Panel's award of costs has not been contested. See In re Yarborough, 348 S.C. 243, 249, 559 S.E.2d 836, 839-840 (2002) (holding that failure to take exception to the Panel's report constitutes an acceptance of the 3. Respondent is serious......
1 books & journal articles
  • Protecting the Profession and the Public: a Primer on Reporting Misconduct
    • United States
    • South Carolina Bar South Carolina Lawyer No. 34-4-1, January 2023
    • Invalid date
    ...is not grounds for reciprocal discipline. See, Matter of Kern, 423 S.C. 567, 816 S.E.2d 574 (2018). [3] See e.g., In re Yarborough, 348 S.C. 243, 559 S.E.2d 836 (2002) (finding that a lawyer "violated the spirit of Rule 4.5"? when he threatened to file a $50 million dollar lawsuit against a......

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