Hello everyone and welcome to this Ethics Alert blog which will discuss the recent South Carolina Supreme Court opinion reprimanding a lawyer for failing to attend court hearings on behalf of a client after telling the judge that he represented the person and then claiming in the discipline case that there was no representation since the client had not signed a fee agreement. The case is In the Matter of Eleazer R. Carter, South Carolina App. Case No. 2012-211406, Op. No. 27179 (October 10, 2012) and the opinion is here: http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27179.pdf.
According to the opinion, in September 2008, Stacey Daniels retained a lawyer who filed a lawsuit as a result of a car accident. That lawyer withdrew in May 2009 and the client later contacted the disciplined lawyer. The client met with the lawyer at his office and they discussed the fee arrangement, prior settlement offers, authorization for medical records, and possible witnesses if the case went to trial. At the time of the meeting, discovery and some settlement negotiations had already occurred.
In September 2009, the client attended a court proceeding on the case and told the circuit judge that the lawyer was representing him. The lawyer did not appear; however, he happened to be at the courthouse on another matter and was brought to the judge. The lawyer told the judge and opposing counsel that he was representing the client and the judge continued the case until the next term of court.
In March 2010, the lawyer again failed to attend a scheduled court proceeding and the client was again present. Opposing counsel then moved to dismiss the case, but the judge again continued the case until the next term. The following month, opposing counsel served the lawyer with notice of the deposition of the client; however, the lawyer never informed the client of the date and neither the lawyer or the client attended the deposition. The lawyer also never told opposing counsel he would not be at the deposition or that he was not representing the client.
Opposing counsel then filed a motion to dismiss the case for failure to prosecute and, when the case came up (and the lawyer was again not present), the judge called the lawyer and informed him that the case was going to move forward. Although the lawyer knew that the client was incarcerated when he received the motion to dismiss, he never contacted the client about it. The lawyer then argued against the motion to dismiss and, during that hearing, he informed the court he was not representing the client. The case was then dismissed by the judge. The lawyer forwarded the order dismissing the case to the client with a handwritten note stating the case had been dismissed because they had not appeared in court. Perhaps inevitably, the client filed a Bar grievance against the lawyer.
At the hearing held before a grievance panel, the lawyer incredibly argued he had never represented the client since there was no signed fee agreement, which was required since it was a contingent fee and the fee agreement was required to be in writing. The lawyer argued that, in the alternative, if he was actually representing the client, he represented him diligently.
The grievance panel did not agree with either of the lawyer’s theories and found that he violated South Carolina Bar Rules related to scope of representation, diligence, communication, termination of representation, and conduct prejudicial to the administration of justice. The panel also considered the lawyer’s disciplinary history in aggravation. The lawyer was admitted in 1989 and received a letter of caution in January 2002 with a finding of minor misconduct, a letter of caution finding minor misconduct in July 2002, a letter of caution in July 2008 (around the time he began representation of the client) and two letters of caution in May 2010 finding minor misconduct. Notwithstanding the above facts and the aggravation, the panel recommended that the lawyer receive an admonition. pay the cost of the proceedings, and complete Ethics School within six months of the Court’s final order.
The South Caroline Supreme Court’s opinion rejected the proposed admonition and ordered a public reprimand. In response to the lawyer’s argument that he was not representing the client since there was no signed fee agreement, the opinion stated: “Rule 1.5 and our opinions sanctioning lawyers for violation of this rule are designed to protect clients from inadequate representation, not to determine the presence of an attorney-client relationship.” The client “had reason to believe that (the lawyer) represented him”; therefore, an attorney/client relationship was established. The client also testified that he had signed a fee agreement; however, a copy was not provided to him.
After discussing and upholding the panel’s findings regarding the various Bar rule violations, the opinion stated that “(b)ased on the facts of this case as well as (the lawyer’s) extensive previous disciplinary history, we hold the misconduct warrants a public reprimand.” The lawyer was also ordered to pay the costs within thirty days and complete the Ethics School within six months of the opinion.
Bottom line: This case is somewhat bizarre for a variety of reasons, including the fact that, according to the opinion, the lawyer initially told the trial judge that he was representing the client and failed to appear at various hearings and meetings. He then failed to tell the client about a scheduled deposition and failed to appear at the deposition. He later argued against a motion to dismiss and told the judge that he was not representing the client and, when he received the Order dismissing the case, he sent it to the client with a handwritten note stating that the case was dismissed because they had not appeared in court. Finally (and most bizarrely), the lawyer argued alternatively (and contradictorily) that he did not represent the client or, if he did, he represented the client diligently. I am not making this stuff up!
Be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and/or guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670