Mixson, In re, 19419

Decision Date22 May 1972
Docket NumberNo. 19419,19419
Citation189 S.E.2d 12,258 S.C. 408
CourtSouth Carolina Supreme Court
PartiesIn the Matter of Benjamin Eugene MIXSON, Respondent.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Irvin D. Parker, Columbia, for complainant.

Clinton Green, of Green & Hastings, Miami, Fla., for respondent.

PER CURIAM:

This disciplinary proceeding was commenced August 18, 1970, by The Grievance Committee of the Richland County Bar Association against the respondent, who has been admitted and qualified to practice law in this State. Since the respondent could not be found, service was had under the provisions of section 21 of the Rule on Disciplinary Procedure.

The complaint alleged two instances of misconduct tending to pollute the administration of justice or to bring the courts or the legal profession into disrepute. The complaint first alleged that respondent bore the onus of a civil contempt order of the Richland County Court. The complaint further alleged mishandling of client trust funds.

Two weeks after service of notice, respondent filed by mail with the Board of Commissioners on Grievances and Discipline a number of motions, together with his answer to the complaint. In substance, respondent moved the Board to:

(1) dismiss the complaint on the ground that respondent was not a member of any local or state bar association;

(2) order the complaint to be made more definite and certain;

(3) extend all time limits, and devise some procedure whereby respondent could conduct his defense from out-of-state;

(4) produce for respondent's inspection the records of all past disciplinary proceedings ever taken before the Board;

(5) disqualify itself.

In his answer, respondent admitted the contempt order, branding it unconstitutional, and denied having mishandled trust funds.

The three-member panel appointed to conduct hearings in the matter granted the motion to make more definite and certain but denied the others. An amended complaint, dated December 14, 1970, was duly served. An evidentiary hearing was conducted on August 10, 1971, at which respondent did not appear and was unrepresented.

The testimony before the panel fully supports the panel's findings of fact, substantially as follows.

As to the contempt sentence: Following the decision of this Court in Mixson v. Mixson, 253 S.C. 436, 171 S.E.2d 581 (1969), respondent was adjudged in contempt of Richland County Court by order of May 5, 1970, unless and until he should purge the contempt by payment of alimony and child support in arrears, in addition to certain attorney fees and costs.

As to mishandling trust funds: On February 13, 1969, respondent deposited in his attorney account a check in the amount of $2,442.00, dated two days earlier, drawn in his favor by a client for use in satisfying a mortgage debt owed by the client. The mortgagee had refused to accept this amount in satisfaction, necessitating payment through Richland County Court. On June 23, 1969, respondent obtained an order of that court permitting the amount in question, less $323.00 attorney fees and costs, to be paid to the clerk of court in satisfaction of the mortgage, this sum to be held in escrow by the clerk for the mortgagee. Instead of paying to the clerk the required sum of $2,119.00, respondent wrote a check in that amount, dated July 23, 1969, payable to the mortgagee personally. This check, together with the court order, was found in March, 1970, inserted in a judgment roll in the courthouse. On July 23, 1969, the date of the check, respondent's attorney account was $400.00 overdrawn. Only twice in following months--a two-day period in July and a like period in September--did the balance present in the account equal the amount of the check. Checks drawn on the account after February 13, 1969, show that the balance on that date, including the sum paid to the respondent in trust by the client, was spent by respondent at least partly for his own use.

In April, 1970, the client retained another attorney, through whom he satisfied the mortgage by paying the required $2,119.00 to the clerk. Restitution of this amount to the client was made in August, 1970, by respondent's mother-in-law. The source of the funds used for restitution is not clearly revealed in the record, but there was testimony indicating that respondent himself supplied the funds used for that purpose.

The three-member panel recommended public reprimand for violation of Canon 11 in commingling trust funds with personal funds and failing to account promptly for such funds. The panel recommended no action in regard to the contempt sentence. The full Board of Commissioners, rejecting the panel's position, recommended indefinite suspension.

Respondent has apparently resided in Florida from the inception of these proceedings. From there he has filed numerous motions, memoranda, and other documents in his defense. Respondent's contentions, though manifold, may fairly be categorized as threefold in nature. First, respondent contends that the civil contempt sentence to which he is subject is not properly a ground for disciplinary action. Second, he assigns technical error at several points in the proceedings before the Board of Commissioners and before this Court. Third is the claim that the proceedings have been fundamentally unfair throughout.

We agree with the respondent that, under the circumstances, his civil contempt sentence is not a ground for disciplinary action. The contempt power was invoked in respondent's case not as punishment but in an effort to secure compliance with his obligations of alimony and child support. Civil contempt in such cases, though a drastic remedy, does not differ in purpose from other civil remedies...

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4 cases
  • Thornton, Matter of, 24674
    • United States
    • South Carolina Supreme Court
    • July 9, 1997
    ... ... See In re Mixson ... ...
  • Christian, Matter of, 20286
    • United States
    • South Carolina Supreme Court
    • September 28, 1976
    ... ... In re Julian, 260 S.C. 48, 194 S.E.2d 195 (1973); In re Merritt, 259 S.C. 234, 191 S.E.2d 250 (1972); In re Mixson, 258 S.C. 408, 189 S.E.2d 12 (1972). While the defenses advanced by the respondent are not exculpatory, they certainly constitute extenuating ... ...
  • Kirven, Matter of, 20327
    • United States
    • South Carolina Supreme Court
    • December 10, 1976
    ... ...         [267 S.C. 671] We have heretofore emphasized that commingling of trust funds is in itself a serious offense. In re Benjamin Mixson, 258 S.C. 408, 189 S.E.2d 12 (1972). Here, the respondent has not only breached his fiduciary duty by improper financial dealing with his naive ... ...
  • Norwood, Matter of
    • United States
    • South Carolina Supreme Court
    • November 7, 1979
    ... ...         [273 S.C. 781] The decision In re Mixson, 258 S.C. 408, 189 S.E.2d 12 (1972), is distinguishable. Mixson was charged only with failing to pay alimony and attorneys' fees. Respondent, on ... ...

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