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24700 - In the Matter of George K. Lyall

Davis Adv. Sh. No. 29
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court,

In the Matter of George

K. Lyall, Respondent.

Opinion No. 24700

Submitted Septembr 4, 1997 - Filed October 13, 1997

DEFINITE SUSPENSION

Wilburn Brewer, Jr., of Columbia, for respondent.

A. Camden Lewis, Special Disciplinary Counsel.

PER CURIAM: In this attorney disciplinary matter, respondent

admits he has committed misconduct and consents to a suspension of up to nine

months. We accept respondent's admissions and suspend him from the practice

of law for nine months.

Padgett Trust Matter

Respondent and his wife served as co-trustees of a trust established

on behalf of their children by respondent's father-in-law, Christian D. Padgett.

In the past several years, Mr. Padgett would forward appropriate documents to

respondent and his wife, request their endorsement as co-trustees, and have

them return the documents to Mr. Padgett for filing, recording, deposit, or

negotiation. Included in the documents were checks made payable to respondent

and his wife as co-trustees.

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In January 1995, respondent, in his capacity as co-trustee, received

a check in the amount of $23,000 from Mr. Padgett to invest in stock for the

children's trust. Instead of investing the funds as Mr. Padgett intended,

respondent converted the money to his own use to pay South Carolina state

taxes owed by him and his wife. Respondent has made cash restitution to the

children's trust.

In November 1996, respondent received a check representing the

proceeds of the sale of certain real estate by Mr. Padgett on behalf of the

children's trust. The check was made payable to respondent and his wife, in

their capacity as co-trustees, in the amount of $26,057.01. Mr. Padgett intended

for respondent and his wife to endorse the check, then return it to him for

deposit into the children's trust.

Instead, respondent endorsed the check and endorsed his wife's

signature without her prior consent or knowledge. He personally took the check

to a bank and negotiated it for two cashier's checks. Respondent negotiated one

cashier's check in the amount of $23,566.14 to Richland County Treasurer to pay

1994 delinquent taxes on three properties owned by the 1325 Partnership, of

which respondent was a partner. Respondent negotiated the second cashier's

check in the amount of $2,490.87, payable to himself, and used the funds for his

own purposes.

Respondent wrote a letter to Mr. Padgett in February 1997,

apologizing for his conduct but not revealing what he had done with the

$26,057.01 check. In March 1997, five months after demands were made of him

to explain the missing check, respondent sent Mr. Padgett an "assignment and

bill of sale" of his partnership interest in the 1325 Partnership. Respondent

stated in a letter that he was resigning as co-trustee and transferring his

partnership interest to the children's trust in exchange for the missing check.

The 1325 Partnership agreement provides that any transfer or assignment of a

partner's interest must be approved by the remaining partners. The other

partners had no knowledge of respondent's assignment of his partnership

interest. Respondent admits creating the assignment and bill of sale in early

1997 and backdating it to November 1996. Respondent has made cash

restitution to the children's trust.

1325 Partnership Matter

Respondent was the managing partner of the 1325 Partnership,

formed in 1986 to invest in real estate. As managing partner, respondent was

in charge of all records and the checking account.

An examination by the state Attorney General's Office of the

partnership's financial records from 1992 to 1997 revealed that respondent had

withdrawn, in about forty-five check transactions not authorized by the

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partnership, a total of $47,587.42 for his personal use. The transactions began

in late 1992 and continued through 1996. In an effort to make up for the

withdrawals, respondent during the same period deposited into the partnership

account or paid on the partnership's behalf the total sum of $36,656.43.

Respondent has agreed to make full restitution to the partnership.

Hathcock v. Navistar Matter

Michael Hathcock and his wife brought separate civil actions

against Navistar International Transportation Corp. ("Navistar") after Mr.

Hathcock was badly burned in an accident in which the truck he was driving

burst into flames after a collision. Hathcock alleged that Navistar,

manufacturer of the truck, had negligently designed the fuel system, making it

defective and unreasonably dangerous. Navistar retained respondent as local

counsel in 1992.

Hathcock's counsel served detailed interrogatories and requests for

production on respondent as local counsel for Navistar. In the preamble of the

discovery requests, Hathcock's counsel defined certain terms specifically,

including the term "fuel system." In an interrogatory, Hathcock's counsel asked

Navistar to provide certain information on prior lawsuits regarding the fuel

system in Hathcock's truck or any similar fuel systems in other vehicles

manufactured by Navistar.

In response, respondent signed answers listing eighteen prior

lawsuits, but unilaterally limited the answers to only those suits involving post-

collision fuel-fed fires and allegations involving the fuel system of the particular

type of truck Hathcock was driving. Hathcock's counsel asked respondent to

supplement Navistar's responses, and again informed respondent that the

interrogatories were not limited to the particular type of truck Hathcock was

driving. Respondent again denied knowledge of any additional suits in

supplemental responses.

Hathcock's counsel obtained information from sources other than

Navistar about three past lawsuits filed against Navistar by plaintiffs named

Podvin, Ryan, and Shilts. Respondent, in consultation with Navistar, had not

listed those suits in answers to interrogatories or provided any information

about them. In August 1993, Hathcock's counsel informed respondent he had

located two of the prior plaintiffs and intended to call them at trial.

Two weeks later, respondent notified Hathcock's counsel that he had

documents from the Podvin and Shilts cases, and produced hundreds of

documents from those cases. Respondent admits the three suits involved in-cab

fires in Navistar trucks with essentially the same type of fuel system as the

truck Hathcock was driving. The Shilts case involved the same type of truck as

the one Hathcock was driving; the other two cases involved a medium-duty truck

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IN THE MATTER OF LYALL

and a pickup truck.

In other interrogatories, Hathcock's counsel asked respondent to

identify all employees who helped answer the interrogatories and all employees

who would have information about prior claims. Counsel also asked for

background information about the employees. In response, respondent objected

to identifying those individuals and suggested Hathcock's counsel depose one

Navistar official and then determine whether additional information was needed.

In an internal letter from respondent to Navistar concerning this discovery

request, respondent stated,

[Ilt is my understanding we would rather not produce

the information currently available. It is my belief [the

federal court] would require us to produce some

background information if the issue were brought before

[it]; therefore, we need to consider whether we should

voluntarily produce a document of our choice or face the

risk of producing a document we would rather not

produce.

Respondent admits there is an appearance of impropriety and

misconduct in the discovery process in Hathcock's case, and respondent

acknowledges he is responsible for that appearance.

Conclusion

In the Padgett Trust and 1325 Partnership matters, respondent

admits he converted money belonging to another to his own use, concealed and

refused to explain what he had done with the money, improperly created and

backdated an assignment and bill of sale of his interest in a partnership, and

endorsed his wife's signature on a check without her prior consent. We conclude

respondent engaged in conduct involving a criminal act that reflects adversely

upon his honesty, trustworthiness, and fitness as a lawyer. He engaged in

conduct involving moral turpitude. He acted in a dishonest and fraudulent

manner, and engaged in conduct tending to pollute the administration of justice

or to bring the courts and legal profession into disrepute. By his actions,

respondent violated Rules 8.4(b), (c), (d), and (e) of the Rules of Professional

Conduct contained in Rule 407, SCACR, and Rule 7(a)(5) of the Rules for

Lawyer Disciplinary Enforcement contained in Rule 413, SCACR.

Finally, a lawyer has an obligation to not unlawfully obstruct

another party's access to evidence, and to make reasonably diligent efforts to

comply with proper discovery requests. Rules 3.4(a) and (d) of Rule 407,

SCACR. Respondent's actions in the Hathcock matter clearly create the

appearance that respondent has violated those provisions.

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We find that respondent's conduct warrants a definite suspension of

nine (9) months from the practice of law. Within fifteen (15) days of the date of

this opinion, respondent shall file an affidavit with the Clerk of 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, SCACR, no

petition for reinstatement shall be accepted until respondent has filed proof that

he has made full restitution to the 1325 Partnership as he has agreed to do.

DEFINITE SUSPENSION

Finney, C.J., not participating

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