Yarborough, Matter of

• Decision Date: 18 June 1997
• Docket Number: No. 24662,24662
• Citation: 327 S.C. 161,488 S.E.2d 871
• Court: South Carolina Supreme Court
• Parties: In the Matter of Ernest E. YARBOROUGH, Respondent. . Heard

Page 871

488 S.E.2d 871

327 S.C. 161

In the Matter of Ernest E. YARBOROUGH, Respondent.

No. 24662.

Supreme Court of South Carolina.

Heard June 18, 1997.

Decided Aug. 4, 1997.

[327 S.C. 162] Ernest E. Yarborough, Winnsboro, pro se.

Charles M. Condon, Attorney General, and James G. Bogle, Jr., Senior Assistant Attorney General, Columbia, for complainants.

[327 S.C. 163] PER CURIAM:

In this attorney disciplinary matter, Respondent Ernest E. Yarborough is charged with presenting or threatening to present criminal charges in order to gain an advantage in a civil matter. Rule 4.5, Rule 407, SCACR. We find Respondent's actions constitute misconduct warranting a six-month suspension.

FACTS/PROCEDURAL POSTURE

Kathy Able hired Respondent on June 30, 1992, to represent her in an automobile wreck case. During the course of this representation, Able rented a car from U-Save Auto Rental ("U-Save"). Payment for the rental car was to be made by Respondent upon settlement of Able's property damage claim. Respondent subsequently settled Able's property damage claim for $1550 on or about July 17, 1992. The settlement statement Respondent prepared indicated U-Save was owed $237.60. Respondent paid this amount to U-Save on July 30, 1992. The same day he swore out an arrest warrant on Able charging her with breach of trust with fraudulent intent. A grand jury true-billed an indictment against Able for this offense December 28, 1992. ¹ However, the indictment was eventually nolle prossed by the solicitor for lack of merit on March 4, 1993.

There is conflict in the record regarding what actually happened to the $237.60. It is uncontested Respondent cashed the $1550 settlement check in Able's presence on July 17, 1992. Able testified Respondent then kept the $237.60 and was going to pay U-Save. She did not hear from him again until a day or two before she was arrested, when he called her and began screaming at her Conversely, Respondent testified he gave the $237.60 to Able on July 17, 1992, who was to pay U-Save. U-Save was not paid, however, and contacted Respondent July 30, 1992 seeking payment. It was on this day Respondent paid U-Save and swore out the warrant. He did not consult Able before paying U-Save or swearing out the warrant because "there was nothing she could have told me that would have made any difference." ² He sent Able a letter dated October 7, 1992, notifying her the case was closed and she owed him $244.21. This sum included the amount paid to U-Save as well as other outstanding expenses. Respondent also asked Able to pick up her file. Able did not respond to this letter by either making payment or picking up her file.

that "I'm going to have you locked up, you're going to pay me, and that's it."

On December 28, 1992, the same day the grand jury true-billed the indictment against Able, Respondent wrote the following letter to Able that is at the heart of the present grievance action:

Dear Ms. Able:

As you probably are aware, the Grand Jury returned a True Bill Indictment against you as a result of the warrant that I swore against you. This means that the criminal case will proceed against you.

Please be advised that I am willing to ask the Solicitor to drop all charges against you if you would make restitution in the amount of Two Hundred Forty Four Dollars and 21/100ths ($244.21). I must receive complete restitution no later than Thursday, December 31, 1992. If restitution is not received by the date stated, I will pursue the case against you.

Respondent testified when he swore out the warrant he was angry and upset Able had lied to him and he wanted her to know she could not get away with it. However, when he wrote the letter in December he was feeling guilty at having her arrested.

The complaint was filed March 4, 1996. A three-member hearing panel heard testimony regarding this matter May 16, 1996. The panel recommended dismissal of the charge, finding no clear violation of the Rules of Professional Conduct. The Interim Review Committee ³ of the Board of Commissioners on Grievances and Discipline ("IRC") disagreed with the panel's findings of fact and conclusions of law, finding Respondent's actions constituted misconduct.

DISCUSSION

The Supreme Court has the ultimate authority to discipline attorneys, and the findings of the panel and IRC are not binding. However, such findings are entitled to great weight, particularly when the inferences to be drawn from the testimony in the record depend largely on the credibility of witnesses. In the Matter of Bowen, 321 S.C. 450, 469 S.E.2d 46 (1996) (per curiam). Misconduct must be proven by clear and convincing evidence. In re Friday, 263 S.C. 156, 208 S.E.2d 535 (1974) (per curiam).

Both the panel and the IRC believed Respondent's contention he had given Able the money to pay U-Save. They differed on whether Respondent's subsequent actions constituted misconduct. Although it chastised Respondent to "refrain from using the criminal courts to settle an otherwise civil dispute," the panel found the evidence was not clear and convincing Respondent violated Rule 4.5. The IRC, however, found misconduct because "[Respondent's conduct] clearly shows Respondent intended for the client to be intimidated by the criminal charges to repay the funds to him in a civil matter."

Rule 4.5, Rule 407, SCACR, states: "[a] lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." This court has not yet addressed the application of this rule to attorney conduct. South Carolina's former Code of Professional Responsibility, from which Rule 4.5 was taken ⁴, contains the following comment:

The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the criminal process is designed for the protection of society as a whole. Threatening to use, or using, the criminal process to coerce adjustment of private civil claims or controversies is a subversion of that process; further, the person against whom the criminal process is so misused may be deterred from asserting his legal rights and thus the usefulness of the civil process in settling private disputes is impaired. As in all cases of abuse of judicial process, the improper use of criminal process tends to diminish public confidence in our legal system.

EC 7-21, Rule 32, S.C. Sup.Ct. Rules (repealed 1990). ⁵

While Rule 4.5 may seem more applicable to an attorney's threatening criminal prosecution on behalf of a client ⁶, it has been equally applied to attorneys' disputes with their own clients. See, e.g., Marquette v. State Bar, 44 Cal.3d 253, 242 Cal.Rptr. 886, 746 P.2d 1289 (1988) (en banc) (lawyer threatened client's fiancee with criminal prosecution if she persisted in pursuing action to recover monies allegedly owed by lawyer); People v. Farrant, 852 P.2d 452 (Colo.1993) (lawyer threatened criminal prosecution against client to induce immediate payment of attorneys' fees); People v. Smith, 773 P.2d 522 (Colo.1989) (en banc) (lawyer threatened to bring criminal charges against former client unless he paid overdue legal fee and dropped grievance action); In the Matter of Strutz, 652 N.E.2d 41 (Ind.1995) (lawyer accusing client of criminal blackmail implicitly threatened to present criminal charges in order to negotiate settlement of a civil lawsuit filed by lawyer against client); In re Porter, 393 S.W.2d 881 (Ky.1965) (lawyer induced secretary to swear out criminal warrant against former client in order to deter client from pursuing monetary claim against him). Under this authority, even if Respondent did give Able the $237.60 to pay U-Save and Able neglected to do so, and we see no reason to contest what essentially was a credibility determination of the hearing panel, his subsequent actions can nonetheless violate Rule 4.5. "Although cases involving bad checks or collections legitimately implicate both the criminal and civil law, some lawyers in such matters overstep by using strong threats and intimidation to resolve the case." Threatening Criminal Prosecution, Lawyer's Manual on Professional Conduct (ABA/BNA) § 71:602 (Nov. 16, 1994) (emphasis added).

We find the letter Respondent wrote on December 28, 1992, clearly violated Rule 4.5 While it may be true that in July when he swore out the warrant, Respondent was truly angry and wanted Able criminally prosecuted, he testified he did not feel this way when he wrote this December letter making continuance of the criminal case contingent on Able's payment. This letter makes Respondent's claim he was not interested in ever getting paid but simply wanted justice served not credible. See Committee on Professional Ethics and Conduct v. Michelson, 345 N.W.2d 112, 116-17 (Iowa 1984) (en banc) (argument that lawyer and client were interested in criminal prosecution and thus actions were not "solely" to gain advantage in civil matter meritless because "plain language of the letters threatened criminal action unless the debtor immediately paid his civil obligation").

Furthermore, in the letter, the amount Respondent requested as "restitution" for the criminal charge was not the amount he...