Rushton, Matter of, 22373

• Decision Date: 12 July 1985
• Docket Number: No. 22373,22373
• Citation: 335 S.E.2d 238,286 S.C. 543
• Court: South Carolina Supreme Court
• Parties: In the Matter of Edward W. RUSHTON, Jr., Respondent. . Heard

Page 238

335 S.E.2d 238

286 S.C. 543

In the Matter of Edward W. RUSHTON, Jr., Respondent.

No. 22373.

Supreme Court of South Carolina.

Heard July 12, 1985.

Decided Sept. 25, 1985.

Atty. Gen. T. Travis Medlock, Sr. Asst. Atty. Gen. Richard B. Kale, Jr., and Deputy Atty. Gen. William K. Moore, Columbia, complainant.

Kermit S. King, Columbia, for respondent.

PER CURIAM:

This attorney disciplinary matter is before the Court as a result of a report and recommendation of the Board of Commissioners on Grievances and Discipline. We agree that the Respondent, Edward W. Rushton, Jr., is guilty of misconduct. We are not in agreement with the recommended sanction. The ultimate responsibility of determining sanctions is in this Court. Burns v. Clayton, 237 S.C. 316, 117 S.E.2d 300 (1960).

The complaint, which alleged two counts of misconduct, first charged that the Respondent appeared in his office in an intoxicated condition while conferring with clients. Secondly, it charged the Respondent had co-mingled funds of clients by depositing their monies in his personal account. Both charges are abundantly supported by the trial record which was before the hearing panel.

In response to a question, the Respondent testified as follows:

Q. When on September 30, 1983, when late in the afternoon you had these clients, the Towles and Mrs. Merritt, coming into your office, there is no question but at that time, when they were in there, you were under the influence of alcohol?

A. That is correct.

The second count grows out of representations which the Respondent made to Mrs. Towles and to Mrs. Wallen concerning their subscribing to stock in First Trident Savings and Loan Association and the handling of funds incident thereto. In 1983, the law firm of Wise and Cole, the Respondent's employer, was actively engaged in promoting and establishing Trident.

On May 27, 1983, Respondent submitted a subscription agreement for 2000 shares of stock. The application called for issuance of the stock in the Respondent's name. Thereafter, Respondent suggested to several clients that they invest in Trident.

On August 26, 1983, Charlanne Towles gave him her check payable to "Edward W. Rushton, Jr., Trustee" in the amount of $5,000.00 for purchase of 500 shares. Mrs. Towles executed a stock subscription agreement reflecting her name, the amount of stock purchased and the amount submitted.

On August 20, 1983, Mrs. Anne T. Wallen delivered a check payable to "Edward W. Rushton, Jr. as Trustee" for $5,000.00 and executed a stock subscription agreement reflecting her name as subscriber for 500 shares.

On October 10, 1983, Edward W. Rushton, Sr. (father of the Respondent) executed a stock subscription agreement reflecting the purchase of 700 shares for the amount of $7,000.00 with him as subscriber.

On September 7, 1983, Respondent reduced his original request from 2,000 shares to 1,700 shares. On September 7, 1983, Respondent deposited the funds of these three clients in his own personal account. On that same date, he issued his personal check in the amount of $17,000.00 to Trident; it cleared on September 12, 1983.

For some time, members of his employing firm had been alerted and were suspicious of the Respondent's drinking habits. After they learned of his intoxication in the office in the presence of clients on September 30, 1983 and after they learned of the co-mingled funds, they prepared a letter dated October 3, 1983, directed to Trident requiring them to issue the stock in the name of the true owners. Respondent signed at their instigation, and his employment was promptly terminated.

Apparently, Respondent led the three subscribers to believe that he was trustee for Trident which was not true. The checks given to the Respondent by these three subscribers should have been made payable to Trident or to the law firm and deposited in its trust account. Except for the letter written at the instigation of members of the employing firm, Trident presumably would have issued all of the stock to the Respondent. No explanation has been given as to why Trident was not notified at least after September 7, 1983 and before October 3, 1983, that the true recipients of the stock were Mrs. Wallen, Mrs. Towles and Mr. Rushton, Sr. We agree with the panel and board that there was an improper co-mingling of funds. The fact that no one lost money in this unusual handling of the transactions does not justify the action and at most mitigates culpability.

We have no difficulty in concluding that the Respondent has violated the Code of Ethics as relates to both counts and that a sanction is proper. The sanction involves a matter of discretion for this Court. In determining that sanction, we look to the entire record.

Respondent is 47 years of age and a graduate of Duke University Law School in 1958. He was admitted to the North Carolina Bar but permitted his license to lapse for failure to pay dues in 1969. Thereafter, he undertook various employments not especially related to the law. He stood the bar examination in the State of Virginia in the summer of 1981 but failed. The examination was taken again in February of ...