S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of
Benjamin C. Wofford, Respondent.
Opinion No. 24785
Heard April 21, 1998 - Filed May 11, 1998
DISBARRED
Attorney General Charles M. Condon and Senior
Assistant Attorney General James G. Bogle, Jr.,
both of Columbia, for Disciplinary Counsel.
Benjamin C. Wofford, of Columbia, pro se.
PER CURIAM: In this disciplinary matter, respondent is
charged with engaging in misconduct in violation of various provisions of
the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR (RLDE),
and the Rules of Professional Conduct, Rule 407, SCACR.
FACTS
In relevant part, the formal charges allege as follows:
1. The McKinney Matter
Respondent represented Gerald McKinney in a domestic
relations action; Mrs. McKinney was represented by Attorney Douglas N.
Truslow. The matter included the sale of jointly owned property, netting
approximately $160,740.55, which was placed into respondent's escrow
account on or about December 17, 1996. The following day, the daily
balance in the escrow account fell below the requisite amount of
p.3
In the Matter of Wofford
$160,740.55 and continued below this amount until December 26, 1996.
The balance again fell below this amount from January 6,
1997, until about February 1997, when the account was frozen pursuant to
this investigation. Upon information and belief, respondent, or someone at
his direction, misappropriated the McKinney funds, without knowledge or
permission of Mr. McKinney, Mrs. McKinney, or Douglas Truslow.
2. The Robertson Matter
Bonnie M. Robertson refinanced a mortgage. At the closing on
approximately November 20, 1996, respondent withheld the sum of
$162,914.67 to pay off a prior construction mortgage. Subsequent to the
closing, a dispute arose between Mrs. Robertson and her construction
lender as to the amount of the payoff. Mrs. Robertson brought respondent
a check for $4,794.97. Respondent was to hold all of these funds in escrow
on Mrs. Robertson's behalf. Bank records for respondent's escrow account
show a deposit of approximately $160,000.00 on or about November 20,
and $4,794.97 on or about November 21, 1996.
On January 14, 1997, Mrs. Robertson's construction lender
commenced a foreclosure action regarding the construction mortgage. Mrs.
Robertson retained another attorney who began contacting respondent to
determine the status of the funds. Respondent failed to reply to the
attorney's inquiries. On February 6, 1997, the attorney faxed respondent
a letter demanding that he either deposit Mrs. Robertson's fund with his
office or with the court pending a resolution of the foreclosure action.
Respondent did not reply to this letter.
The daily balance in the escrow account fell below the requisite
amount of approximately $162,914.67 on December 18, 1996, continued
below this amount until December 26, 1996, and again fell below this
amount from January 6, 1997, until the present. Upon information and
belief, respondent misappropriated the approximate sum of $162,914.67.
3. The Chicago Title Matter
Chicago Title Insurance Company insured a number of closings
which were to have been conducted in an appropriate manner by
respondent. However, subsequent to the closing of respondent's trust
account on the date of his interim suspension, Chicago Title established
p.4
In the Matter of Wofford
the following instances in which payoffs were not made:
(a) Waybright: the insured closing letter was issued April 18,
1995, and Respondent failed to make the required payoff of approximately
$59,473.22, misappropriating same.
(b) Hester: the insured closing letter was issued January 23,
1997, and respondent failed to make the required three payoffs of
approximately $169,729.03, misappropriating same.
(c) Phillips: the insured closing letter was issued January 3,
1997, and respondent failed to make the required payoff of approximately
$6,129.69, misappropriating same. After being advised by her bank that
her account was in arrears and no payments had been received, Mrs.
Phillips attempted to contact respondent several times over a three week
period; respondent failed to reply.
(d) Non-real estate transaction: regarding a settlement of
approximately $54,600.00, respondent collected a fee of $13,600, but the
remaining funds, approximately $41,000, were not disbursed and
misappropriated by respondent.
4. The Laura Kellum Matter
On October 15, 1996, respondent represented Laura Kellum at
the closing of the sale of her home. In mid-November, Mrs. Kellum was
contacted by the mortgage company and informed respondent had not paid
off her mortgage. Mrs. Kellum's attorney and realtor contacted respondent
about this matter. Eventually, Mrs. Kellum received money from the sale
of her home, but did not receive any interest on sums withheld by
respondent. Respondent offered no explanation for the unreasonable delay
in making the payoff to the mortgage company.
5. The John P. Dunmire Matter
Mr. Dunmire retained respondent about July 1996 to represent
him on the purchase of a lot. The closing was held on October 23, 1996,
and Mr. Dunmire made his final payment in full, completing the sale on
or about January 10, 1997. When Mr. Dunmire wrote his February 21,
1997, letter of complaint to the Commission, respondent had not provided
Mr. Dunmire with the original mortgage, title, title insurance policy, or
p.5
In the Matter of Wofford
any of the other necessary documents to effect the closing. Repeated
attempts by Mr. Dun-mire to contact respondent went without reply.
6. Escrow Account
Bank records indicate Respondent's escrow account had a
negative balance on twenty-two occasions in 1995, ranging from -$343.00
to -$60,462.03.
Respondent did not file an answer to the formal charges (or
request an extension in which to do so or file any other motion). He did
not appear at the hearing before the subpanel of the Commission on
Lawyer Conduct (the Commission) and he filed no exceptions to the
subpanel's report recommending he be disbarred. The full panel adopted
the subpanel's report and recommendation. Respondent failed to appear
for oral argument before this Court.
DISCUSSION
Because he failed to answer the formal charges, failed to
appear before the hearing panel, and failed to appear for oral argument
before this Court, respondent is deemed to have admitted the factual
allegations contained in the formal charges. Rule 24, RLDE.
We find, by his various instances of misconduct, respondent
has violated Rule 7, RLDE, by violating the Rules of Professional Conduct,
engaging in conduct tending to pollute the administration of justice or
bring the court or legal profession into disrepute or demonstrating an
unfitness to practice law, and violating his oath of office. Additionally, he
has violated Rule 1.1 (failure to provide competent representation), Rule
1.4(a) (failure to keep clients reasonably informed about the status of
matters and complying with reasonable requests for information), Rule
1.2(a) (failure to consult with clients), Rule 1.3 (failure to act with
reasonable diligence), Rule 1.15 (failure to promptly deliver funds to a
third person, misappropriating client funds, and failure to promptly render
a full accounting), Rule 8.4(b) (committing a criminal act which reflects
adversely upon the lawyer's honesty), Rule 8.4(c) (engaging in conduct
involving moral turpitude), Rule 8.4(d) (engaging in conduct involving
dishonesty, fraud, deceit, and misrepresentation), and Rule 8.4(e) (engaging
in conduct prejudicial to the administration of justice) of Rule 407,
SCACR.
p.6
In the Matter of Wofford
The authority to discipline attorneys and the manner in which
the discipline is given rests entirely with the Supreme Court. Matter of
Marshall, Op. No. 24775 (S.C. Sup. Ct. filed March 23, 1998)(Davis Adv.
Sh. No. 11 at 15). The Court has disbarred attorneys for similar instances
of misconduct. Matter of Sturkie, ___ S.C.___, 489 S.E.2d 924 (1997);
Matter of Mundy, 326 S.C. 194, 485 S.E.2d 381 (1997); Matter of Boyle,
316 S.C. 375, 450 S.E.2d 578 (1994); Matter of Edwards, 323 S.C. 3, 448
S.E.2d 547 (1994).
We conclude respondent's misconduct warrants disbarment
from the practice of law.1 Within fifteen (15) days of the date of this
opinion, respondent shall file an affidavit with the Clerk of the Court
showing he has complied with Rule 30 of Rule 413, SCACR. In addition
to all other requirements respondent must meet to be reinstated under
Rule 413, no petition for reinstatement shall be accepted until respondent
has filed proof he has made full restitution to all institutions and
individuals who have lost money as a result of his fraudulent acts or
mishandling of trust funds, including restitution to the Lawyers' Fund for
Client Protection for any payment it may make.
DISBARRED.
1Because he failed to appear for oral argument before this Court,
respondent is deemed to have agreed to the sanction imposed. Rule 24(b),
RLDE.
p.7