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24693 - In the Matter of Terry A. Trexler

Davis Adv. Sh. No. 27
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the Matter of Terry A. Trexler, Respondent.

Opinion No. 24693

Heard August 18, 1997 - Filed September 22, 1997

PUBLIC REPRIMAND

John C. Land, III, of Land, Parker & Reaves, P.A., of Manning, for

Respondent.

Charles Molony Condon, Attomey General, and James G. Bogle, Jr., Senior

Assistant Attomey General, both of Columbia, for Complainant.

PER CURIAM: In this disciplinary matter, two complaints have been filed against

Terry A. Trexler ("Attorney").

Borden Matter

In May 1994, Attorney was representing Tammy Finkbeiner against Kelly

Timmons. Finkbeiner's case was called by the family court on May 31, 1994 at 2:45 p.m.

At the hearing, the court inquired whether the defendant Kelly Timmons had been served.

Attorney submitted an affidavit of personal service, signed by a process server, stating the

pleadings had been left with Angela Timmons at 4460 Nazarene Church Rd., Sumter,

S.C. The affidavit was notarized by Attorney. The hearing was adjourned after the court

found that service of process was insufficient (because there had been no indication that

Angela Timmons was a person of discretion residing at 4460 Nazarene Church Rd.).

At 3:00 p.m. on the same day, the family court case of Shirl Ann Borden v.

Raymond Borden, Jr. was called. Attomey represented the plaintiff. The affidavit of

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personal service had stated that the pleadings had been left with Evelyn B. Garrett at 1831

Pinewood Rd., Sumter, S.C. Attorney was the notary on the affidavit. During the break

between the two hearings, Attorney had added to the affidavit, "Mr. Raymond Borden, Jr.

resides with Evelyn B. Garrett at this address." At the second hearing, the court asked

Attorney whether he had just added these words to the affidavit, to which Attorney

responded that he had. The court refused to hear the matter.

Before the Panel, Attorney testified that between the hearings he had gone outside

the courtroom where the process-server was standing. There, he added to the notarized

affidavit, with the process-server's permission, the words "Mr. Raymond Borden, Jr.

resides with Evelyn B. Garrett at this address."

The complaint filed against Attomey alleged that he had committed misconduct in

violating the Rules of Professional Conduct, Rule 407, SCACR, specifically Rule 3.3 and

Rule 8.4. In his answer, Attomey admitted the allegations against him, but denied that his

actions constituted misconduct. The Panel concluded that the misconduct charged in the

complaint had been proved by clear and convincing evidence. It specifically found that

Attomey had violated Rule 3.3 (a lawyer shall not knowingly make a false statement of

material fact or law to a tribunal); and Rule 8.4 (it is unprofessional misconduct for a

lawyer to engage in conduct that is prejudicial to the administration of justice).

Harvey Matter

Attorney represented Eleanor Harvey in an action to recover damages from a

construction company that had performed work on Harvey's residence. The case was set

to be heard before a Master in Equity on March 3, 1994, at 10:00 a.m. Attorney failed to

appear for the hearing, and the action was dismissed under former Rule 40(c)(3), SCRCP.

Attorney had called the Master's office before the scheduled hearing, but had not left

any message with the answering service.

There is no indication that Attorney requested a rehearing, moved to restore, or

appealed the dismissal. Attorney did not inforrn Harvey that he had missed the hearing or

that the matter had been dismissed, but told her that the Master had decided the case was

frivolous and should be settled out of court. On July 25, 1994, Attorney refiled the same

action. The matter was dismissed in December 1994 on the basis of the running of the

statute of limitations. Attorney did not inform Harvey of the dismissal.

Some time later, Harvey called Attorney to ask about the status of her case. He

indicated that he was still waiting for the court. Unexpectedly, a few weeks later, Harvey

received a settlement offer of $ 10,000.00 from Attorney. In her testimony before the

Panel, in response to the question whether the $10,000.00 had made her whole, Harvey

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stated, "I accepted that." She signed a release. As a result of the second action that

Attorney filed, the defendants filed a counterclaim against Harvey. Attorney paid

$2000.00 out of his own funds to settle this counterclaim.

The complaint alleged that Attorney violated Rules 1.1, 1.3, and 1.4 of Rule 407,

SCACR. As to the Harvey matter, Attorney fully admitted the allegations of professional

misconduct against him. The Panel concluded that all three Rules had been violated:

Rule 1.1 (a lawyer shall provide competent representation to a client); Rule 1.3 (a lawyer

shall act with reasonable, diligence and promptness in representing a client); and Rule 1.4

(a lawyer shall keep a client reasonably informed about the status of a matter and

promptly comply with reasonable requests for information).

Thomason Matter

Attorney represented Henry Thomason and Eugene Makovitch in an action that

had been brought against them. The plaintiff had been attacked by several dogs.

Thomason and Makovitch each owned a dog involved in the attack. Attorney was

retained first by Thomason, and then by Makovitch. Thomason testified that Attorney did

not discuss the potential for a conflict of interest as a result of Attorney's joint

representation of Thomason and Makovitch.

He advised both of them that they would be liable. A settlement was negotiated,

and both Thomason and Makovitch signed a confession of judgment for $20,000.00.

After supplemental proceedings on the judgment were instituted, Makovitch settled for

$3,000.00 and a tract of land.

In the complaint against Attorney, it was alleged that he violated Rule 1.7(a),

which prohibits representation of clients where the interest of one client would be directly

adverse to the interest of another. Attorney fully admitted the allegations of professional

misconduct against him. The Panel found that Rule 1.7 was violated; however, the result

reached by Attorney was good for both parties. It concluded that the interests of the

clients were not actually harmed.

Sanction

The Panel recommended a sanction of public reprimand. The Interim Review

Committee adopted the Panel's findings of fact and conclusions of law, but disagreed with

the recommended sanction. By a vote of 3 to 2, the Committee recommended Attorney

be suspended for ninety days. Two members of the Committee voted for a seven month

suspension. We agree with the conclusion of the Panel and impose a public reprimand.

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In relation to the Borden matter, Attorney testified, and the process-server

confirmed, that Attorney added the words to the affidavit in the process-server's presence

and with his permission. This evidence was uncontradicted. Moreover, at the hearing,

when the court asked Attorney if he had added the words to the affidavit, Attorney

truthfully responded that he had. Thus, we do not see how Attorney has made a false

statement to a tribunal. This is in contrast to other cases where sanctions have been

imposed upon attomeys for submitting affidavits that were false in substance or in the

formalities of signing. See In re Jack Francis McGuinn, 272 S.C. 366, 252 S.E.2d 122

(I 979)(attorney publicly reprimanded where he signed his secretary's signature as notary

public on two affidavits submitted to a court); In re John E. Bishop, 263 S.C. 289, 210

S.E.2d 235 (1974)(attorney publicly reprimanded where he submitted an affidavit that

was false in certain material particulars). Hence, we do not find misconduct as to the

Borden matter and dismiss this complaint.

In connection with the Harvey matter, the following cases are somewhat

analogous:

In In re Randall Edward Palmer, 289 S.C. 264, 346 S.E.2d 23 (1986), the attorney

misrepresented to a client on a number of occasions that her case was proceeding and that

he had finally settled the matter for $30,000.00. The client incurred major expenses in

reliance on attorney's representation that he had received the settlement check. When she

did not receive the proceeds, she hired another attorney who discovered that no lawsuit

had ever been filed and that the statute of limitations had run on the matter. We disbarred

Palmer for this and other misconduct. In In re Gary Michael Wood, 278 S.C. 431, 298

S.E.2d 89 (1982), the Court indefinitely suspended an attorney who had failed to file a

verified claim in a personal injury action against a governmental agency, leading to the

claim being dismissed. The client's signature verifying the complaint, notarized by the

attorney, was a forgery. Additionally, in another matter, the attorney had altered a deed

so that the mortgage would no longer secure the debt; he took advantage of this in a

subsequent foreclosure action.

An eighteen month suspension was imposed in In re M.M. Weinberg, III, 317 S.C.

300, 454 S.E.2d 316 (1995). The attorney's misconduct occurred in the course of a

number of matters in which he failed to bring a lawsuit or failed to serve a requested

notice of appeal. He misrepresented to clients that he had instituted an action or appeal

on their behalf or settled the case when he had not. In In re Alan Joel Davis, 276 S.C.

532, 280 S.E.2d 644 (1981), the attorney represented to at least five different clients that

he had brought actions on their behalf when, in fact, he had never filed suit. These

misrepresentations caused extensive delays, up to four years. In two other instances, he

failed to act, causing a delay in one case of 8 ½ years. Three justices on the Court voted

to publicly reprimand Davis.

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These cases obviously illustrate the wide range of sanctions the Court has imposed

for conduct of this nature. Although Attorney's misconduct is very serious, it appears less

reprehensible than those forming the basis of the sanctions in Palmer, Wood, Weinberg,

and Davis. To his credit, Attorney did out of his own pocket offer to Harvey $ 10,000.00,

an amount which she found acceptable; additionally, he settled the counterclaim at no

cost to her.

In relation to the Thomason matter, In re Anonymous Member of the S.C. Bar, 315

S.C. 141, 432 S.E.2d 467 (1993) is relevant. In that case, we dismissed the action where

the attorney undertook to represent clients with adverse interests, but where the conflict of

interest issues were explained to one client, and the other client dismissed the attorney

before the attorney had an opportunity to advise him of the conflict.

In the present case, there could have existed a conflict of interest1 between

Attorney's two clients, given that both had dogs in the attack. The proper course would

have been for Attorney to have secured the clients' consent before jointly representing

them. It does not appear, however, that the clients were prejudiced as a result of the joint

representation, as favorable settlements were ultimately secured for both.

In sum, we conclude that an appropriate sanction in this case is a public reprimand.

Although we are very concemed by Attorney's actions, we take into account the factors of

his complete admission, his inexperience, and the lack of prejudice to his clients.

Attorney fully admitted the charges against him. Moreover, these incidents occurred at

the very start of Attorney's career when he immediately began, out of law school, a solo


1 Rule 1.7 provides:

(a) A lawyer shall not represent a client if the representation of that client

will be directly adverse to another client, unless:

(1) The lawyer reasonably believe[s] the representation will not

adversely affect the relationship with the other client; and

(2) Each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client

may be materially limited by the lawyer's responsibilities to another client.

. . .

The Comments to this Rule declare that paragraph (a) prohibits "representation of

opposing parties in litigation"; whereas, paragraph (b) governs "[s]imultaneous

representation of parties whose interests in litigation may conflict, such as coplaintiffs or

codefendants." It would appear that Attorney's misconduct in the present case would fall

under (b); however, the complaint against him alleges violation of (a). Nevertheless,

Attorney has admitted the allegations against him.

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private practice. Additionally, we observe that the clients in these matters were not

harmed by Attorney's misconduct.

Accordingly, Terry A. Trexler is hereby publicly reprimanded.

PUBLIC REPRIMAND.

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