Moore, Matter of
| Decision Date | 16 September 1997 |
| Docket Number | No. 24725,24725 |
| Citation | 494 S.E.2d 804,329 S.C. 294 |
| Parties | In the Matter of Fred Henderson MOORE, Respondent. . Heard |
| Court | South Carolina Supreme Court |
Russell Brown, Charleston, for respondent.
In this attorney disciplinary matter, respondent, Fred Henderson Moore, is charged with several acts of misconduct arising out of his representation of several of his clients. We find respondent committed misconduct and impose a definite suspension from the practice of law for a period of one year.
This disciplinary matter concerns several complaints filed against respondent between March 1995 and May 1996. Respondent denied all allegations of misconduct. A full hearing on these matters was held on June 13, 1995, February 28, 1996, and July 24, 1996. Respondent was represented by counsel. On January 22, 1997, the Hearing Panel (Panel) issued its report finding misconduct and recommending a definite suspension for three months. The Panel determined that some of the allegations in the complaints did not constitute misconduct. The Interim Review Committee 1 (Committee) of the Board of Commissioners on Grievances and Discipline agreed with the Panel's findings of facts and conclusions of law; however, it disagreed with the recommended sanction. The Committee recommended an indefinite suspension.
Both respondent and complainant filed exceptions and briefs with this Court. Respondent claims the Panel erred in finding any misconduct. The complainant claims the Panel erred in not finding respondent mishandled two appeals and in not finding respondent had engaged in a pattern and practice of neglecting legal matters entrusted to him and incompetently representing his clients.
Although this Court is not bound by the findings of the Panel and Committee, these findings are entitled to great weight, particularly when the inferences to be drawn from the testimony depend on the credibility of witnesses. Matter of Yarborough, 327 S.C. 161, 488 S.E.2d 871 (1997). However, we may make our own findings of fact and conclusions of law. Id. Further, a disciplinary violation must be proven by clear and convincing evidence. Id.
We agree with the Panel's findings; however, we also find respondent has engaged in a pattern and practice of neglecting legal matters entrusted to him and incompetently representing his clients to their detriment.
In September 1993, respondent filed an action for a client in the Clarendon County Court of Common Pleas (Clarendon County case).
Counsel for the defendants in this matter served various discovery requests, including Interrogatories, Request for Production and Request for Admissions, upon respondent. Except for a request for an extension made on December 13, 1993, respondent failed to answer or reply to any of the discovery requests and failed to return telephone calls or reply to correspondence concerning the discovery requests. Because of this failure to reply, the Request for Admissions were deemed admitted. Rule 36, SCRCP. Subsequently, counsel for the defendants moved to compel responses to the discovery . Counsel provided notice to respondent of these motions. Respondent claimed he had assigned the discovery portion of this case to an associate. However, respondent admitted he was principally responsible for the file.
On May 26, 1994, the Deputy Clerk of Court for Clarendon County prepared a non-jury roster and mailed it to all counsel who had cases on the roster. The roster recited it was for the term of non-jury court beginning the week of June 6, 1994, and the assigned judge would hear motions, appeals and non-jury cases on Friday, June 10, 1994, beginning at 9:30 a.m. There were two parts to the roster: a motions roster and a trial roster. This case appeared on both rosters.
According to the testimony of the Deputy Clerk of Court, on May 26, 1994, a copy of the roster was mailed to respondent at 41 Morris Street, Post Office Box 20275, Charleston, South Carolina 29413, the address which appeared on the Summons and Complaint. This roster was not returned to the clerk's office by the Postal Service.
Respondent claimed he never received the roster. According to respondent, he moved his office to 150-A St. Phillip Street in mid-December 1993; however, respondent retained the same post office box address. Respondent failed to notify others, including the Clarendon County Clerk of Court and opposing counsel, of his move. As evidence that respondent was having difficulty receiving mail during this time period, respondent introduced a letter sent by the United States Postal Service apologizing to its customers for misboxing and missending mail. However, respondent offered no evidence that the Clarendon County roster was missent or misboxed. Respondent conceded the post office box address used by the Clerk of Court's Office was correct. Further, according to respondent, all his mail was posted to his post office box regardless of the mailing address used.
The Motions to Compel were heard on June 10, 1994. Counsel for defendants was present. Respondent was not present and did not contact the court to explain his absence. The judge granted defendants' motions. Counsel for defendants remained in the courtroom and waited until the case was reached on the trial roster. When the case was called, respondent still was not present and counsel for defendants moved for dismissal of the complaint for lack of prosecution. Defendants' motion was granted.
After receiving the order of dismissal, respondent moved for reconsideration and for an order to defer judgment. These motions were denied because the judge found respondent had failed to present any evidence to substantiate any grounds to justify vacating the previous order of dismissal. Respondent then filed and served notice of his intent to appeal. During the early stages of the appeal, the Supreme Court determined the transcript had not been timely ordered by respondent and instructed respondent to forward an original and six copies of a Motion to Order Transcript Out of Time, along with proof of service and a $25.00 filing fee, within ten days or the appeal would be dismissed. Respondent failed to respond. After the appeal was dismissed, respondent notified the Supreme Court the transcript had been requested from the court reporter in a timely fashion.
The Panel and Committee found respondent received notice from the Clarendon County Clerk of Court scheduling the Motions to Compel and the non-jury trial for June 10, 1994, but respondent failed to appear, thereby violating Rule 407, SCACR, Rule 1.1 () and Rule 1.3 (). The Panel and Committee also found respondent demonstrated a lack of competence in representing his client by failing to timely order the transcript and by failing to file a motion with the Supreme Court to order the transcript out of time. The Panel made no findings about respondent's failure to reply to the opposing parties' discovery requests.
We agree with the Panel's finding respondent committed misconduct by violating Rule 407, SCACR, Rules 1.1 and 1.3 and Rule 413, SCACR, § 5(E), in the handling of the Clarendon County case by failing to appear at the scheduled court date and by causing the appeal to be dismissed. This misconduct severely prejudiced his client. Further, we find clear and convincing evidence that respondent's failure to reply to discovery requests, including the Request for Admissions, also violated Rules 1.1 and 1.3. See Matter of Solomon, 307 S.C. 1, 413 S.E.2d 808 (1992) (). Although respondent testified he turned over all discovery matters in this case to his associate, respondent retained control of the case and it was his responsibility to ensure his associate was appropriately responding to discovery requests. Rule 407, SCACR, Rule 5.1 ().
A client retained respondent in early 1991 to represent her in connection with a medical malpractice claim allegedly arising from improper medical treatment following an injury the client sustained in August 1990. The improper treatment occurred between August and December 1990 and the client testified she was aware she had been misdiagnosed by December 1990.
Respondent did not file suit on behalf of the client until June 27, 1994. Respondent testified he waited to file suit until he obtained an opinion from another physician that the client's treating physician committed malpractice. Respondent stated that he did not think the statute of limitations would run on this cause of action until he had obtained such an opinion.
The Panel found the statute of limitations on the client's claim would have expired between August 1993 and December 1993. Therefore, the Panel found respondent demonstrated a lack of professional competence and failed to act with reasonable diligence and promptness in representing the client in this matter. Rules 1.1 & 1.3.
We agree with the Panel's findings. Respondent's testimony at the Panel hearing demonstrates his lack of understanding of the statute of limitations and the discovery rule and is evidence of incompetency. Further, respondent's delay in filing suit was fatal to his client's action.
In early 1994, respondent was retained to handle a claim against Ford Motor Company for an incident that allegedly occurred on January 17, 1994. This client alleged she received personal injuries when she was trapped in a 1992 Ford Tempo vehicle...
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