S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the matter of Richard L. Celsor, Respondent.
Opinion No. 24780
Heard March 4, 1998 - Filed April 13, 1998
PUBLIC REPRIMAND
Attorney General Charles M. Condon, Senior
Assistant Attorney General James G. Bogle, Jr.,
both of Columbia, for complainant.
S.R. Anderson, of Anderson & Jordan, of Columbia,
for respondent.
PER CURIAM: This is an attorney disciplinary matter.1 The
hearing Panel found respondent violated Rule 1.1, of Rule 407, SCACR, by
handling legal matters he was not competent to handle and failing to
secure a power of attorney to sign a client's name on legal documents;
Rule 3.3, of Rule 407, SCACR, by making false statements to the circuit
and probate courts and engaging in conduct which involves
misrepresentation and is prejudicial to the administration of justice; and
Rule 413, SCACR, 5A and E, by violating the oath of office and
demonstrating a lack of professional competence. The full Panel adopted
the hearing Panel's report and recommendation of a public reprimand.
We agree with the findings and conclusions made by the Panel. We
further agree the appropriate sanction is a public reprimand.
1 Respondent moved to Clarksville, Tennessee and, at the time of the
Panel hearing, he was a member of the Tennessee bar.
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IN THE MATTER OF CELSOR
DISCUSSION
Respondent's admitted misconduct centers around his handling
of a probate matter and a related wrongful death action. Bonnie Faye
Rish was murdered in Richland County in December 1991. Her only
survivor was her minor daughter, Joli Denise Rish. Joli turned eighteen
years old on October 11, 1992. Respondent represented Joli in the probate
of Bonnie's estate. Respondent also filed a wrongful death action in circuit
court on behalf of Joli on October 6, 1994. The action was brought in
Joli's name as personal representative of Bonnie's estate.2 In the wrongful
death action, respondent alleged that Joli had been appointed personal
representative of her mother's estate. However, the petition for
appointment was not filed until July 1995 and Joli was not appointed
until August 7, 1995. The Panel found respondent made a
misrepresentation to the court.
The Panel also found respondent was incompetent in his
handling of the probate and wrongful death actions. Respondent testified
that he was unaware that the only person authorized to commence a
wrongful death action was the duly appointed personal representative of
the decedent's estate.3
Respondent contends the complaint in this disciplinary matter
did not allege he was incompetent to handle the wrongful death action and
the probate matters. The complaint, however, encompasses this finding of
misconduct. It is not a new matter - the entire disciplinary proceeding
stemmed from respondent's handling of these actions. More importantly,
2 Joli Rish as Personal Representative of the Estate of Bonnie Rish,
Plaintiff v. John Dinkins and Mitchell Barkoot, Sr., d/b/a/ Bullwinkle's
Lounge, Defendants (Civil Action No. 94-CP-40-3710).
3 "The right of action for wrongful death ... may be brought only by
the executor or administrator of such deceased person. The provision that
a wrongful death action shall be brought only in the name of the
administrator or executor of the estate of the deceased means the legally
appointed administrator or executor of the estate of the deceased person. .
. . [A]n appointment by the Probate Court [is] necessary to give the
administratrix authority to act, and in the absence thereof, she had no
legal capacity to institute this wrongful death action." Glenn v. E.I.
Dupont De Nemours & Co., 254 S.C. 128, 130, 174 S.E.2d 155, 157
(1970)(Citations omitted).
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IN THE MATTER OF CELSOR
it is respondent who admitted he basically did not know what he was
doing. He testified that he had never handled a probate matter or a
wrongful death action. Even though he testified he spent two years
researching the law prior to filing the wrongful death action, he still did
not follow the proper procedure.
As to the improper signing and notarizing, in the beginning of
1996, respondent filed several documents with the probate court regarding
Bonnie's estate. A probate court clerk questioned respondent about Joli's
signature appearing differently on several documents. Respondent admits
signing Joli's name on several documents and he also admits he notarized
the signature. He claims he signed Joli's name because he had an oral
power of attorney allowing him to sign her name. A Power of Attorney
dated January 3, 1996, was presented to the probate court. However,
several documents signed and notarized by respondent were filed prior to
January 3, 1996.
The Panel found respondent had committed misconduct by
improperly signing Joli's name without a valid power of attorney,
notarizing the signature, and making misrepresentations to the courts.4
At the Panel hearing, it was pointed out to respondent that even with a
power of attorney, he should have signed indicating he was signing under
this power.5 He responded, "I really didn't think the extraneous language
was necessary."
Respondent contends he improperly signed and notarized only
one document, the initial petition to have Joli appointed as personal
representative dated July 20, 1995, and filed on August 7, 1995. He
contends he signed and notarized the Inventory and Appraisement form on
February 16, 1996, after Joli had signed the Power of Attorney on January
3, 1996. He further contends he had verbal permission to sign Joli's name
from the very beginning of his representation of her when she was only
seventeen. However, Joli testified that although she was aware that
respondent was going to take care of things, she was unaware that he
would be signing her name. Further, "there is considerable authority to
4 Judge Katherine Kennedy filed a letter of complaint with the Board
regarding the signatures on the probate documents.
5 S.C. Code Ann. 26-3-60 and -70 (1991) provide that a notary
should state in the acknowledgment form that a person is signing as an
attorney in fact.
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IN THE MATTER OF CELSOR
the effect that a minor's appointment of an agent or attorney and the acts
under such appointment are not merely voidable, but void, on the theory
that the minor cannot impart a power to others which he does not himself
possess." 3 Am Jur. Agency 10 (1986). Additionally, a power of attorney
should be evidenced by an instrument in writing. 3 Am. Jur. Agency 23
(1986). Thus, Joli could not have given a valid verbal power of
appointment when respondent first began representing her. Further, as
noted above, respondent should have signed indicating he was acting
under a power of attorney.
In its report, the hearing Panel stated that if this disciplinary
action were governed by the "old rules,"6 it would recommend a private
reprimand.7 Respondent contends he is being treated unfairly because this
disciplinary action was begun under the old rules and, therefore, he should
be sanctioned under the old rules. Although we cannot issue a private
reprimand under the new rules, we can issue a "letter of caution" under
the appropriate circumstances.8 However, respondent's misconduct does
not merit a letter of caution. His misconduct warrants a public
reprimand.
In In re Powell, ____ S.C. ____, 478 S.E.2d 685 (1996), we
accepted a conditional admission to a public reprimand for illegally forging
and notarizing the signature of clients and failing to act with diligence
and promptness in filing a certificate of title. In In re McGuinn, 272 S.C.
366, 252 S.E.2d 122 (1979), we imposed a public reprimand for false
notarizations of signatures. A recent increase in the disciplinary actions
involving improper notarizations greatly concerns us and we note
as in McGuinn, we are "shocked by respondent's abuse of the office of
6 Respondent is referring to the former Rule 413, SCACR. This rule
was entirely re-written effective January 1, 1997.
7 We are not bound by the Panel's recommendation. Burns v.
Clayton, 237 S.C. 316, 117 S.E.2d 300 (1960). We are required after a
thorough review of the record to administer the sanction we deem
appropriate. In re Kirven, 267 S.C. 669, 230 S.E.2d 899 (1976).
8 On August 7, 1997, the rules were amended to provide for a
sanction known as a "letter of caution." A letter of caution is defined as
"a sanction imposed for minor misconduct not warranting the imposition of
a private admonition or deferred discipline agreement." 2(p) of Rule 413,
SCACR.
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IN THE MATTER OF CELSOR
notary public. A notary is a public officer, who, by his hand and seal,
authenticates certain classes of documents. The credibility of notarized
documents is essential to the viability of our legal system." Id. at 367, 252
S.E.2d at 123 (citations omitted). Further, when, as here, the documents
are then submitted to a court, the respondent compounds the dishonesty
and commits a fraud upon the court. We caution the members of the bar
who are also notaries that the duties required of the office of notary
should not be taken lightly.
We find respondent's misconduct warrants a public reprimand.
Accordingly, respondent is hereby publicly reprimanded for his misconduct.
PUBLIC REPRIMAND.
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