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24722 - In the Matter of R. Eugene Miller

Davis Adv. Sh. No. 34
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the Matter of R.

Eugene Miller, Respondent.

Opinion No. 24722

Submitted October 29, 1997 - Filed December 8, 1997

DISBARRED

Coming B. Gibbs, Jr., of Charleston, for respondent.

Attorney General Charles Molony Condon and Senior Assistant

Attorney General James G. Bogle, Jr., both of Columbia, for

complainant.

PER CURIAM: In this attorney grievance matter, respondent

has admitted the allegations against him and consents to disbarment. We

accept his admission and disbar respondent. The admitted allegations

involve several different matters, discussed separately below.

Abundant Life Church Matter

Abundant Life Church (Church) consolidated three mortgages

into one and chose respondent to close the transaction. Respondent

received a check for $455,059 which he deposited in his trust account on

July 28, 1995. The ending balance in the trust account for July 1995 was

$434,642.99 which indicated respondent had misappropriated the Church's

funds. During August, two of the Church's mortgages were satisfied with

funds from respondent's trust account. Instead of satisfying the third

mortgage for $360,309.71, respondent began making monthly payments.

In October, an unrelated third party gave respondent a check

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IN-THE MATTER OF MILLER

for $359,209.93 which respondent deposited in his trust account.

Respondent then wrote a check to satisfy the Church's third mortgage.

However, the third party's check was not honored by the drawee bank,

and therefore the funds in respondent's trust account were insufficient to

cover the check. The bank which maintained respondent's trust account

honored the check anyway, leaving a negative balance in respondent's

trust account of $347,732.61.

Respondent negotiated with the bank to pay the amount owed.

During those negotiations, respondent attempted to dissuade the bank

from revealing his misconduct by threatening, "I must caution you,

however, that should punitive action be instigated or information leaked to

the Bar, . . . then my individual efforts to satisfy the bank and to remove

the problem as it relates to me will not only become impaired but will

become a matter of impossibility."

Estate of Raymond Fougerousee Matter

In July of 1993, respondent was asked to represent the estate

of Raymond Fougerousee. A check for $244,000, representing the principal

amount of the estate, was deposited into respondent's trust account in

July. In October, a check for $1,363.56 was also deposited. Mr.

Fougerousee's widow instructed respondent to use these proceeds to satisfy

two residential mortgages. Instead of following her instructions,

respondent made monthly payments on these mortgages from July of 1993

until the fall of 1995. These mortgages remain unsatisfied, and as of

August 4, 1997, respondent's trust account had a zero balance.

John Thomas Parker Matter

John Thomas Parker gave respondent a check for $28,060.80 in

April of 1993 to give to the South Carolina Coastal Council to release an

easement. Respondent deposited the check in his trust account and

thereafter misappropriated Parker's money.

Annie Laurie Bendt Matter

Annie Laurie Bendt is engaged in the business of buying and

selling real estate in Charleston. In December of 1994, respondent

received $189,995.93 as Bendt's escrow agent. In March of 1995, Bendt

gave respondent approximately $23,000 to hold in relation to an option to

purchase property. In April of 1995, Bendt gave respondent $142,153.23

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IN THE MATTER OF MILLER

which she received after a closing, bringing the total of her funds held by

respondent $355,149.16. During the spring of 1995, Bendt received part of

her money, thereby reducing the balance of her funds held by respondent

to $133,539.83. In October, Bendt needed $83,495.76 to purchase property

in Georgia. At that time, respondent did not have sufficient funds in his

trust account to give Bendt that sum, but arranged for an artificial

balance through a check kiting scheme with a third party. Respondent did

not give Bendt the funds she needed until eight days after she requested

them.

In December of 1994, Bendt sold a home. On behalf of Bendt,

respondent received a check payable to MARCAR Title Insurance Agency.1

Respondent endorsed the check and deposited it into his trust account. In

April of 1995, Bendt sold another home. As part of the transaction, she

wrote a check to MARCAR Title Insurance Agency, which respondent also

endorsed and deposited into his trust account. Furthermore, MARCAR

was reflected as the seller in the April transaction even though respondent

had no right to use MARCAR as an intermediary for any transaction.

Annie Laurie Bendt and Scott Elliott/Florence Medlin Matter

Bendt purchased property owned by Scott Elliott and Florence

Medlin in April of 1995. Respondent served as the closing attorney.

Instead of satisfying the prior mortgage held by Elliott and Medlin,

respondent made two monthly payments.

Margaret Schultz Matter

Margaret Schultz purchased property and hired respondent to

represent her. She entrusted respondent with a cashier's check from her

home equity line of credit for $175,000 and a check for $5,000 from her

personal account. Respondent was to bring this money to the closing.

Respondent failed to bring the money, but assured the attorney who

conducted the closing he would satisfy the seller's mortgage with the

$180,000 in his possession plus approximately $17,397.30 given to him as

a result of the closing.

Respondent exchanged the cashier's check for $175,000 for two

checks, one for $95,000 payable to respondent and one for $80,000 payable


1 Respondent and his former partner, Berry Baker, were MARCAR's officers.

Their children were the stockholders.

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IN THE MATTER OF MILLER

to First Federal Bank. The check to First Federal was used to satisfy the

debt of another client.

Respondent used the $17,397.30 check given to him at the

closing to purchase one cashier's check payable to himself in the amount

of $7,000 and another one payable to himself in the amount of $7,112.98.

He also purchased a cashier's check payable to Charleston County

Treasurer in the amount of $3,284.32. The two checks payable to

respondent were recovered and turned over to a court-appointed trustee.

However, respondent misappropriated the rest of Schultz's money.

The Stiles Point Matter

A lot in Stiles Point Plantation was sold in April of 1995,

Respondent was the escrow agent for this transaction and received

$109,654.11 which he subsequently misappropriated.

Lewis and Amy White Matter

During September of 1995, Lewis and Amy White sold property

and chose respondent as their escrow agent. He was given $110,463.99 to

satisfy an $80,000 mortgage given by First Federal and a loan of $30,000.

Respondent paid First Federal, but the money he used came from the

Margaret Schultz transaction discussed above. The loan was never paid.

Respondent then used the money given to him as a result of the Whites'

transaction to open another trust account. At the end of October, the

balance in this trust account was $26,265.23, and at the end of the year,

the balance had dipped to $7,298.83.

Erica Johnson Matter

Erica Johnson and her two children were injured in a car

accident in June of 1993. Johnson retained respondent to represent them.

In October of 1994, respondent received three insurance checks for the

Johnsons totaling $52,972.36 which he deposited in his trust account. Of

this sum, Johnson only received $14,604.66.

Mary Urie and Livisco Urie Matter

Mary Urie and her son Livisco were injured in a car accident

in November of 1994. As their attorney, respondent settled their case and

received insurance checks for $25,000. However, the Uries received only

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IN THE MATTER OF MILLER

$9,077.19 of that settlement.

The Estate of Herman Bell Matter

Respondent represented the estate of Herman Bell. Bell was

killed when he was hit by a car. Bell's personal representative brought

suit on his behalf, and a settlement was reached. The amount due the

personal representative after court costs and attorney's fees were deducted

was $15,626.50. The personal representative had agreed to share this

amount with a deceased brother. Although the personal representative

received her half, respondent misappropriated the deceased brother's half

which amounted to $7,813.25.

John Bennett Matter

A Charleston attorney, John Bennett, complained to the

Commission on Lawyer Conduct after respondent served as the closing

attorney for a Mr. and Mrs. Johnson in June of 1995. Instead of

satisfying a prior mortgage, respondent made two monthly payments

before making the final payment in August of 1995. In the meantime,

respondent misappropriated the Johnsons' funds. To cover a negative

balance in his trust account, he then engaged in a check kiting scheme,

procuring from a third party a check for $159,750. Respondent used this

sum, plus another client's funds, to satisfy the Johnsons' prior mortgage.

Heyward McDonald Matter

A Columbia attorney, Heyward McDonald, also complained to

the Commission about respondent after respondent served as the closing

attorney for a sale of real estate in April of 1995. Respondent was to

satisfy a mortgage for the seller, Mrs. Galloway, in the amount of

$286,907.62. Instead, he misappropriated these funds and continued to

make monthly payments on the mortgage. In July of 1995, respondent

used funds belonging to other clients to satisfy this mortgage.

Jack and Dorothy Jaskwhich Matter

Jack and Dorothy Jaskwhich sold real estate to Annie L. Bendt

in October of 1994. Respondent closed the transaction, but did not satisfy

the Jaskwhiches' mortgage. Instead, he converted their funds to his own

use and continued to make their monthly payments until November of

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IN THE MATTER OF MILLER

1995. At that time, respondent used funds from another source to satisfy

their loan.

Thomas C. and Julia Huffman Matter

In April of 1994, the Huffmans refinanced a loan and asked

respondent to handle the closing. As a result of the closing, respondent

received $95,565.50 which was to be used to pay the Huffmans' prior

mortgage. Instead of satisfying the mortgage, respondent made three

monthly payments and converted the Huffmans's funds to his own use.

Respondent used funds from another source to satisfy this mortgage in

June of 1994.

D.E. Palassis Matter

Respondent represented D.E. Palassis in a closing in July of

1993. As a result of prospective improvements on the land involved,

Palassis asked respondent to withhold $18,000 of the proceeds due him.

Respondent withheld these funds and converted them to his ow-n use.

Commingling of Funds

During 1994, respondent received sums of money from third

parties which he deposited into his trust account to prevent shortages

therein, thereby co-mingling non-client funds with client funds.

Check Kiting

During 1994 and 1995, respondent solicited the assistance of

other persons to engage in check kiting to create artificial balances in his

trust account until he could receive client funds to cover these shortages.

Records show seven checks totaling $842,709.93 were drawn on four

different banks as part of this scheme.

These repeated instances of improper conduct regarding client

funds demonstrate a pattern and practice of violating the Rules of

Professional Conduct. Rule 407, SCACR. Respondent has failed to act

with reasonable diligence and promptness in representing clients. Rule

1.3. He has misappropriated client funds, has failed to promptly deliver to

third persons funds they were entitled to receive, and has failed to render

a full accounting regarding the property third persons as required by Rule

1.15. He has engaged in reprehensible conduct involving dishonesty,

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IN THE MATTER OF MILLER

fraud, deceit and misrepresentation. Rule 8.4(d). He has engaged in

conduct prejudicial to the administration of justice. Rule 8.4(e). His

conduct has brought the legal profession into disrepute and has

demonstrated his unfitness to practice law. This conduct warrants

disbarment.

Accordingly, we disbar respondent from the practice of law.

Respondent has requested his disbarment be retroactive to the date of his

interim suspension. This request is denied. Within fifteen 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 the Rules for Lawyer

Disciplinary Enforcement, 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 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, to include restitution to the Lawyer's Fund for

Client Protection for any payment it may make.

DISBARRED.

C.J.

A.J.

A.J.

A.J.

Burnett, A.J., not participating.

p. 18