THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of W. Smith Strickland, Jr., Respondent.
Opinion No. 25645
Heard April 3, 2003 - Filed April 28,
2003
DISBARRED
Henry B. Richardson, Jr., and James G. Bogle, Jr., both of Columbia, for the Office of Disciplinary Counsel.
Desa A. Ballard, of West Columbia, for Respondent.
PER CURIAM: In this attorney disciplinary matter, the sole issue before the Court is the appropriate sanction to be imposed upon respondent, who has been on interim suspension since August 12, 1998. [1] The Panel recommended that respondent be disbarred, that the disbarment be made retroactive to the August 12, 1998, suspension date, and that respondent be ordered to pay the costs of the disciplinary proceedings. Neither the Office of Disciplinary Council (ODC) nor the respondent has filed a brief. We disbar respondent, retroactive to August 12, 1998.
FACTS
Respondent has admitted the allegations of the complaint, which are summarized below:
1. Trust Fund Matter
Respondent was the sole proprietor of a firm that did a large amount of collection work. In 1997, he merged his practice with that of another firm [Firm]. As a result of the merger, certain unethical practices of respondent came to light.
From 1995 to 1997, respondent failed to maintain the integrity of his trust account and of his operating account. Respondent did not timely transmit documents and checks. Further, he misrepresented and/or converted some client funds to pay other clients.
Respondent handled a large number of collection matters for a Bank. He would collect funds from the Banks debtors, then use those funds to pay himself fees for other Bank matters. The ODC identified fifteen checks whereby approximately $89,000 was improperly withdrawn from respondents trust fund and paid into respondents operating account.
Following the 1997 merger between respondents practice and the Firm, an audit revealed a shortfall in respondents trust account of $37,000 to $45,000. The Firm immediately deposited $45,000 into the account. Respondents largest client, Bank, was subsequently billed and then paid $90,000 in legal fees for work done by respondent. This money was used to offset the Firms $45,000 deposit into respondents trust account and to offset any client fund shortfall. The Firm eventually paid respondent $16,000, apparently after repaying itself and making all of respondents clients whole.
2. Bank Matter
Respondent settled a matter for a client for $15,000, and deposited those funds into his trust account. In October 1996, he prepared a trust account check for $10,000, payable to client, and placed the check in the clients file. In February 1997, the balance in the trust account fell to $507.22, an amount insufficient to cover the $10,000 check that had still not been delivered to respondents client. The client was finally paid by a different check in May 1997.
Respondent misappropriated these funds, or misapplied them.
3. Overpayment
Respondents client received a $9,410 judgment against W. W paid respondent approximately $7,000 toward the judgment. From this payment, respondent sent his client a check for $5,424 and retained approximately $1,576 as his fee. The judgment against W remained on the record, and during a real estate transaction involving Ws property, the closing attorney tendered respondent a check for the full amount of the judgment, $9,410. Respondent deposited this check in a different trust account, and drew two checks, one to his client paying the remainder due on the judgment and one to himself representing the balance of his fee. Respondent placed the clients check and a cover letter in the clients file.
Respondent contemporaneously prepared a check representing the overpayment made payable to the closing attorney, and also placed this check in the clients file. Approximately nine months later, one of respondents employees directed respondents attention to these documents in the clients file. They remained in the file sixteen months later when this investigation began. Only after the ODC inquired were the funds returned, with interest, to W.
4. Candor
During this investigation, respondent failed to identify two open trust accounts under his control, and misrepresented to the ODC that he lacked signatory authority over any of the Firms accounts. Further, he misrepresented that he was advancing fees when in fact he was misappropriating funds, and misrepresented that he had deposited $5,000 into his trust account when he had not.
LAW
The Panel concluded respondent had violated Rules 7(a)(1), (a)(5), and (a)(6) of the Rules for Lawyer Disciplinary Enforcement (RLDE), Rule 413, SCACR. It also concluded respondent had violated the following Rules of Professional Conduct, Rule 407, SCACR: Rules 1.1, 1.3, 1.4, 1.5, 1.15, 3.3, 8.4(a), 8.4(b), 8.4(c), 8.4(d), and 8.4(e).
The Panel noted respondent has no prior disciplinary record, and that he offered no mental or physical infirmities in mitigation. It recommended a retroactive disbarment. This Court is not bound by this recommendation, but administers the sanction it deems appropriate after a thorough review of the record. E.g., In the Matter of Zenner, 348 S.C. 499, 560 S.E.2d 406 (2002).
CONCLUSION
We hold that the appropriate sanction in this matter is disbarment, with the date of the disbarment to run from August 12, 1998. Within fifteen days of the date of this opinion, respondent shall file an affidavit with the Clerk of Court showing that he has complied with Rule 30, RLDE, Rule 413, SCACR, and shall also surrender his Certificate of Admission to the Practice of Law to the Clerk of Court. Further, respondent shall, within thirty days of the date of this opinion, pay the costs of this proceeding ($538.48).
DISBARRED.
TOAL, C.J., MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.
[1] In the Matter of Strickland, 332 S.C. 87, 504 S.E.2d 317 (1998).