Jennings, Matter of

Decision Date07 February 1996
Docket NumberNo. 24400,24400
Citation321 S.C. 440,468 S.E.2d 869
PartiesIn the Matter of Kathleen P. JENNINGS, Respondent. . Heard
CourtSouth Carolina Supreme Court

Attorney General Charles Molony Condon, and Senior Assistant Attorney General James G. Bogle, Jr., Columbia, for complainant.

John P. Freeman and Nathan M. Crystal, Columbia, for respondent.

PER CURIAM:

This is an attorney disciplinary matter. Two Panel members recommended disbarment

                and one recommended an indefinite suspension.  The Panel did not find misconduct for two allegations in the complaint.  The Executive Committee adopted the Panel Report but found misconduct regarding all of the allegations.  By a vote of 8 to 0, the Executive Committee recommended disbarment. 1  We find respondent's misconduct warrants disbarment
                
DISCUSSION

Improper billing

There are several allegations involving improper billing. Beginning in 1989, respondent began to send some of her work to an attorney, Tom Bruce. Bruce, a full-time employee of Legal Services in Greenville, did this work in his spare time to supplement his income. Respondent increased the number of hours or most often simply doubled the time spent by Bruce and billed these hours to her clients. For example, Bruce would work on a brief for two hours and respondent would bill a client for four hours.

Bruce submitted written bills with his work. Respondent wrote notes to her bookkeeper on these bills regarding how to bill for the time: "enter for 3 hours for me as my work" (Ex. C-(f)); "Pay Tom and bill under my name--double time to allow for me" (Ex. C-(h) and (r)); "Double his time as for me--pay him his actual time" (Ex. C-(z)); "Enter for me doubled time" (Ex. C-(k)); "double to me" (Ex. C-(aa)); "post as if my time and double time to cover time I spent w/Tom" (Ex. C-(cc)); "double for me" (Ex. C-(gg)); "double this for KPJ" (ex. C-(jj)); and "double to include me" (Ex. C-(mm)). In the record, there are 39 cases which reflect this billing practice.

Respondent testified she typically doubled the time which Bruce spent on a file to include her time for supervising and directing Bruce and finalizing the work. She also testified she frequently called Bruce from her home and, since she did not keep track of this time, she simply doubled his time as a rule of thumb. There are two examples in the record when respondent doubled his hours from 7 to 14 hours and from 4 to 8 hours. Bruce testified respondent sometimes called him at home but the calls rarely lasted longer than 15 minutes.

We find respondent's repeated practice of increasing or doubling Bruce's hours when billing without justification amounts to misconduct. Like the Panel, we are convinced respondent did not spend even close to the amount of time she billed on these cases. 2 Further, guessing or using a fixed rule to double time is not a proper way to keep track of hours which are billed to clients.

Destruction of Bruce Bills

The Board proceeded with copies of the Bruce bills obtained from Rhonda Boykin, an ex-employee of respondent's. The original bills were never located. The Panel and Executive Committee found respondent had destroyed the Bruce bills on February 8, 1994. Respondent contends the Panel and Executive Committee erred in making this finding. In its report, the Panel carefully weighed the evidence on this allegation and, after an in-depth discussion, concluded there was clear and convincing evidence respondent had destroyed the bills. We agree.

The Panel's findings are entitled to great weight. Matter of Lake, 269 S.C. 170, 236 S.E.2d 812 (1977). The Panel's finding and the concurrence of the full Board are advisory only and not binding upon the Court. These are, however, entitled to great respect, particularly when the transcript is lengthy and the inferences to be drawn from the testimony depend largely on the credibility of the witnesses which, of course, is assessed best by personal observation at the hearing. In re Bloom, 265 S.C. 86, 217 S.E.2d 143 (1975). See also In re Friday, 263 S.C. 156, 208 S.E.2d 535 (1974).

The following evidence was considered. After learning there was an investigation regarding the bills, Rhonda testified she copied the bills with Denise Newlan for fear something would happen to them. Newlan corroborated this. Further, Rhonda testified she gave respondent the bills on February 8th and saw respondent with a torn bill in her hand. Thereafter, she testified she heard tearing for 30-45 minutes coming from respondent's office. There was no evidence Rhonda had a motive or reason to lie.

Respondent gave Rhonda a $10,000 raise effective March 1, 1994. This reflected a 50% pay increase. Respondent contends this raise was for an increase in the workload because a paralegal, Denise Newlan, had quit. However, Rhonda was a secretary/bookkeeper and could not perform paralegal work. The pay raise coincided with a meeting which Rhonda testified took place between Rhonda, respondent, and an attorney. Rhonda had been urged to see this attorney by respondent. During her meeting with the attorney, Rhonda testified she told him about respondent's destruction of the Bruce bills. The next day respondent met with the attorney and Rhonda and respondent pled with Rhonda to reconsider what she had perceived to be the destruction of the bills. Respondent denies this meeting ever took place.

Respondent contends an ex-employee, Bobbie Langley, took the bills when she was fired nine month earlier in May 1993. However, both Rhonda and Denise Newlan testified they saw the bills and copied them on February 4, 1994. Respondent contends Langley could have gained access to her office at a later time and stolen the bills as part of an ill-will scheme against respondent. Respondent filed a police report on February 8, 1994, suggesting Langley had taken these files with her when she left in May 1993. Other than respondent's bare allegations, there is no evidence to support this theory.

Respondent has the burden of showing the recommendation of the Panel and Executive Committee should not be followed by the Court. In re Pride, 276 S.C. 363, 278 S.E.2d 774 (1981). Here, credibility of the witnesses is crucial in determining whether respondent destroyed the bills. The Panel was in a much better position to review credibility of the witnesses than this Court is on a cold record. 3 We conclude there is clear and convincing evidence to support a finding respondent destroyed the Bruce bills.

Miscellaneous Billing

Respondent testified she would randomly pick a client to bill the Lexis subscription rate of $26.25 each month. She testified she billed this fee as an "overhead item." Respondent also testified Lexis was not used to research for these clients. Clearly, respondent should not have charged an overhead item to a client; particularly an overhead item from which the client received absolutely no benefit. Respondent's billing practice relieves her of the necessity of maintaining her office from her contingent fee, and the charges to the account by respondent constitute a fee. Kentucky Bar Ass'n v. Graves, 556 S.W.2d 890, 891 (Ky.1977).

Respondent also billed clients $50.00 for the $35.00 process service fee. She justified this practice by stating she reviewed the process. Respondent also argues both of these billing practices were fair because she did not always charge her clients for other items. She points to several "No Charge" items on clients' bills. We do not think respondent can justify this billing practice by stating in the long run she did not overcharge her clients and, therefore, they were not financially harmed by it. We find respondent improperly charged these items to her clients.

Respondent was also accused of doubling a court reporter's bill. Although the Panel failed to find respondent had billed a client $136.00 for a $68.00 court reporter's bill, we agree the Executive Committee's finding of misconduct. Respondent testified she did not know why the bill had been doubled, but speculated she charged for two transcripts. There was a note written in respondent's hand writing on the reporter's bill which stated: "please pay this but bill client's account $136.00." We agree there is clear and convincing evidence to support a finding respondent improperly charged her client twice the amount of the bill.

Signing satisfaction of judgment

Respondent represented Diane James in a proceeding seeking to increase alimony. When James initially entered into the fee agreement with respondent, James' father, Robert Roberts, signed as guarantor.

James's ex-husband, Gary Rank, owed Roberts $6,500 from a loan which Rank had failed to repay. An Ohio attorney obtained a judgment against Rank for Roberts. Thereafter, a check for $8,192.61 as satisfaction of the judgment was sent to respondent for Roberts. Respondent deposited this into her account on December 23, 1991. Respondent, however, did not take steps to satisfy the judgment. In October 1992, Rank's attorney inquired as to why respondent had failed to satisfy the judgment. Respondent immediately signed Roberts's name to the satisfaction of judgment form and filed it with the court. Respondent also signed the form as a witness and had her paralegal notarize the signatures.

Respondent attempted to justify her actions by stating Roberts had signed the fee agreement as guarantor. She contends the fee agreement was a power of attorney which gave respondent the authority to sign Roberts's name. Respondent herself repeatedly denied Roberts was her client and, furthermore, respondent did not follow the formalities which a power of attorney requires. Respondent also claims in the end Roberts ratified his signature and no one was damaged by her action. Even so, respondent's actions were improper under the Rules of Professional Conduct--this is not a civil action between the parties involved.

"The forgery of a signature...

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6 cases
  • Chewning v. Ford Motor Co., 3351.
    • United States
    • Court of Appeals of South Carolina
    • June 4, 2001
    ...power of attorney, notarization of that signature, and misrepresentation to court to be fraud upon the court); In re Jennings, 321 S.C. 440, 446, 468 S.E.2d 869, 873 (1996) (holding forgery of signature on court document is fraud upon the court). Therefore, we find Chewning has alleged suff......
  • Attorney Grievance v. Hess, Misc. Docket AG, No. 55
    • United States
    • Court of Appeals of Maryland
    • January 14, 1999
    ...disbarment was appropriate, despite Bar's stipulation with attorney that Bar would seek only a two-year suspension); Matter of Jennings, 321 S.C. 440, 468 S.E.2d 869 (1996) (repeated doubling of associated attorneys' time without justification, coupled with other violations, warranted In Ka......
  • In re Gray
    • United States
    • United States State Supreme Court of South Carolina
    • February 17, 2009
    ...attorney allocated time and charges to insurance company's files on which the time billed had not been spent); In the Matter of Jennings, 321 S.C. 440, 468 S.E.2d 869 (1996) (finding disbarment was warranted by misconduct including misrepresentation regarding billing of several clients, lac......
  • Taylor v. Taylor, 2899.
    • United States
    • Court of Appeals of South Carolina
    • November 16, 1998
    ...the attorney is also going to charge the client a standard hourly billing rate." Husband relies, mistakenly, on In the Matter of Jennings, 321 S.C. 440, 468 S.E.2d 869 (1996). Jennings had randomly chosen a client to which to bill a Lexis subscription rate when she had not used Lexis for th......
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