THE STATE OF SOUTH CAROLINA
In the Supreme Court
In the Matter of Ernest E.
Opinion No. 24662
Heard June 18, 1997 - Filed August 4, 1997
Ernest E. Yarborough, of Winnsboro, pro se.
Charles M. Condon, Attorney General, and James G. Bogle, Jr., Senior
Assistant Attorney General, both of Columbia, for complainants.
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.
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 June 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 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 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 pay-ment 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
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 Comrnittee 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.
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, 746 P.2d 1289 (Cal. 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 paid U-Save (and the amount listed
on the arrest warrant and indictment). Rather, it was the total amount allegedly
owed him from his representation of Able. While the monetary difference may not
be substantial, it clearly shows Respondent was attempting to use the criminal
process to coerce Able to pay him not only the money he paid U-Save but also other
fees and expenses owed him. Such conduct violated Rule 4.5. Respondent has thus
committed misconduct in violating the Rules of Professional Conduct. T5(B), Rule
413, SCACR. Additionally, Respondent's conduct tends to pollute the administration
of justice and bring the legal profession into disrepute. T5(D), Rule 413, SCACR.
We find that for this misconduct, Respondent is hereby suspended from the
practice of law for six months, effective as of the date of this opinion.7 Respondent
shall file an affidavit with the Clerk of Court, within fifteen (15) days of service of
this opinion, showing that he has complied with Paragraph 30 of Rule 413, SCACR.
DEFINITE SUSPENSION. 1 The warrant was dismissed by a magistrate on October 28, 1992, because
Respondent did not appear at the preliminary hearing. At the panel hearing,
Respondent testified he did not receive notice of this hearing. Nonetheless, the
solicitor subsequently presented the warrant to the grand jury.
2 Apparently there is some lag time between swearing out a warrant and it being
3 The order adopting the new Rules for Lawyer Disciplinary Enforcement provided
that any disciplinary case in which a hearing had been held by a hearing panel prior
to January 1, 1997, would continue to conclusion under the former Rule on
Disciplinary Procedure. The Interim Review Committee was created to fulfill the
functions performed by the Executive Committee under Paragraph 14(a) of the former
Rule on Disciplinary Procedure in those cases. Citations in this opinion to Rule 413,
SCACR, will be to the former Rule on Disciplinary Procedure.
4 See DR 7-105, Rule 32, S.C. Sup. Ct. Rules (repealed 1990).
5 Before the ABA deleted this rule from its Model Rules in August 1983, it strictly
interpreted it as a total prohibition regardless of the factual circumstances behind the
lawyer's action. See Threatening Criminal Prosecution, Lawyer's Manual on
Professional Conduct (ABA/BNA) § 71:602 (Nov. 16, 1994). This rule was contained
in the ABA Model Code of Professional Responsibility but was intentionally
abandoned in August 1983 when the ABA adopted the Model Rules of Professional
Responsibility. The drafters of the new rule felt there might be some instances where
bringing up criminal charges in a civil matter would be appropriate. Id. at §§ 71:601
to -604. See also Committee on Legal Ethics v. Printz, 416 S.E.2d 720, 722 (W. Va.
1992) (proclaiming the rule "overbroad because [it] prohibit[s] legitimate pressure
tactics and negotiation strategies"). The fact that South Carolina chose to include
Rule 4.5 when it replaced its own state Code of Professional Responsibility in 1990
would indicate it favors the more stringent approach.
6 See, e.g., Burrell v. Disciplinary Board, 777 P.2d 1140 (Ala. 1989) (per curiam);
In the Matter of Walter, 466 N.E.2d 35 (Ind. 1984); State v. Gobel, 271 N.W.2d 41
(Neb. 1978); In the Matter of Glavin, 484 N.Y.S.2d 933 (N.Y. App. Div. 1985); Office
of Disciplinar-y Counsel v. King, 617 N.E.2d 676 (Ohio 1993) (per curiam); In re
Carpenter, 443 P.2d 238 (Ore. 1968) (per curiam) (lawyer threatened persons with
criminal prosecution unless they made good certain bad checks they had written).
But see Decato's Case, 379 A.2d 825, 827 (N.H. 1977) (no misconduct in writing letter
informing recipient of possibility of criminal sanctions when attorney never requested
payment from recipient; "The mere mention of possibly filing criminal charges does
not in itself suggest that the statement was made in an effort to gain leverage in a
7 This sanction is consistent with other cases involving similar misconduct. See,
e.g., Burrell, 777 P.2d at 1140 (one-month suspension); Strutz, 652 N.E.2d at 41 (two-
year suspension -- other misconduct also involved); Farrant, 852 P.2d at 452 (sixty-
day suspension); Smith, 773 P.2d at 522 (one year suspension); Porter, 393 S.W.2d at 881 (disbarment).