Yarborough, Matter of, No. 24662

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtPER CURIAM
Citation327 S.C. 161,488 S.E.2d 871
PartiesIn the Matter of Ernest E. YARBOROUGH, Respondent. . Heard
Docket NumberNo. 24662
Decision Date18 June 1997

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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.

Page 872

[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

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

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 [327 S.C. 164] 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.

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. [327 S.C. 165] 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...

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17 practice notes
  • In re Chastain, No. 25123.
    • United States
    • United States State Supreme Court of South Carolina
    • May 15, 2000
    ...in this case. It is well established that a disciplinary violation must be proven by clear and convincing evidence. Matter of Yarborough, 327 S.C. 161, 488 S.E.2d 871 (1997). While we are not bound by the findings of the subpanel and full panel, their findings are entitled to great weight, ......
  • In re Yarborough, No. 24951.
    • United States
    • United States State Supreme Court of South Carolina
    • June 7, 1999
    ...the testimony depend on the credibility of the witnesses. Matter of Marshall, 331 S.C. 514, 498 S.E.2d 869 (1998); Matter of Yarborough, 327 S.C. 161, 488 S.E.2d 871 (1997). However, this Court may make its own findings of fact and conclusions of law. Matter of Marshall, supra. Further, a d......
  • IN RE RICE, No. 24917.
    • United States
    • United States State Supreme Court of South Carolina
    • March 8, 1999
    ...recommendation in October 1998. DISCUSSION A disciplinary violation must be proven by clear and convincing evidence. Matter of Yarborough, 327 S.C. 161, 488 334 S.C. 502 S.E.2d 871 (1997). While the Court is not bound by the findings of the subpanel and full panel, their findings are entitl......
  • In re Yarborough, No. 25407.
    • United States
    • United States State Supreme Court of South Carolina
    • February 11, 2002
    ...473 (1997). That conviction is not yet final.2 Respondent was suspended from practice for six months on August 4, 1997. In re Yarborough, 327 S.C. 161, 488 S.E.2d 871 (1997). In this matter, the Court found misconduct based on respondent utilizing criminal charges to gain advantage in a civ......
  • Request a trial to view additional results
17 cases
  • In re Chastain, No. 25123.
    • United States
    • United States State Supreme Court of South Carolina
    • May 15, 2000
    ...in this case. It is well established that a disciplinary violation must be proven by clear and convincing evidence. Matter of Yarborough, 327 S.C. 161, 488 S.E.2d 871 (1997). While we are not bound by the findings of the subpanel and full panel, their findings are entitled to great weight, ......
  • In re Yarborough, No. 24951.
    • United States
    • United States State Supreme Court of South Carolina
    • June 7, 1999
    ...the testimony depend on the credibility of the witnesses. Matter of Marshall, 331 S.C. 514, 498 S.E.2d 869 (1998); Matter of Yarborough, 327 S.C. 161, 488 S.E.2d 871 (1997). However, this Court may make its own findings of fact and conclusions of law. Matter of Marshall, supra. Further, a d......
  • IN RE RICE, No. 24917.
    • United States
    • United States State Supreme Court of South Carolina
    • March 8, 1999
    ...recommendation in October 1998. DISCUSSION A disciplinary violation must be proven by clear and convincing evidence. Matter of Yarborough, 327 S.C. 161, 488 334 S.C. 502 S.E.2d 871 (1997). While the Court is not bound by the findings of the subpanel and full panel, their findings are entitl......
  • In re Yarborough, No. 25407.
    • United States
    • United States State Supreme Court of South Carolina
    • February 11, 2002
    ...473 (1997). That conviction is not yet final.2 Respondent was suspended from practice for six months on August 4, 1997. In re Yarborough, 327 S.C. 161, 488 S.E.2d 871 (1997). In this matter, the Court found misconduct based on respondent utilizing criminal charges to gain advantage in a civ......
  • Request a trial to view additional results

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