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24662 - In the Matter of Ernest E. Yarborough

THE STATE OF SOUTH CAROLINA

In the Supreme Court

In the Matter of Ernest E.

Yarborough, Respondent.

Opinion No. 24662

Heard June 18, 1997 - Filed August 4, 1997

DEFINITE SUSPENSION

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.

FACTS/PROCEDURAL POSTURE

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

against you.

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.

DISCUSSION

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

served.

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

collection suit")

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).