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24725 - In the Matter of Fred Henderson Moore

Davis Adv. Sh. No. 1
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the Matter of Fred

Henderson Moore, Respondent,

Opinion No. 24725

Heard September 16, 1997 - Filed December 16, 1997

DEFINITE SUSPENSION

Attorney General Charles M. Condon and Assistant

Deputy Attorney General J. Emory Smith, Jr., of

Columbia, for complainant.

Russell Brown, of Charleston, for respondent.

PER CURIAM: In this attorney disciplinary matter,

respondent, Fred Henderson Moore, is charged with several acts of

misconduct arising out of his representation of several of his clients. We

find respondent committed misconduct and impose a definite suspension

from the practice of law for a period of one year.

PROCEDURAL BACKGROUND

This disciplinary matter concerns several complaints filed

against respondent between March 1995 and May 1996. Respondent

denied all allegations of misconduct. A full hearing on these matters was

held on June 13, 1995, February 28, 1996, and July 24, 1996. Respondent

was represented by counsel. On January 22, 1997, the Hearing Panel

(Panel) issued its report finding misconduct and recommending a definite

suspension for three months. The Panel determined that some of the

allegations in the complaints did not constitute misconduct. The Interim

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IN THE MATTER OF MOORE

Review Committee1 (Committee) of the Board of Commissioners on

Grievances and Discipline agreed with the Panel's findings of facts and

conclusions of law; however, it disagreed with the recommended sanction.

The Committee recommended an indefinite suspension.

Both respondent and complainant filed exceptions and briefs

with this Court. Respondent claims the Panel erred in finding any

misconduct. The complainant claims the Panel erred in not finding

respondent mishandled two appeals and in not finding respondent had

engaged in a pattern and practice of neglecting legal matters entrusted to

him and incompetently representing his clients.

DISCIPLINARY VIOLATIONS

Although this Court is not bound by the findings of the Panel

and Committee, these findings are entitled to great weight, particularly

when the inferences to be drawn from the testimony depend on the

credibility of witnesses. Matter of Yarborough, Op. No. 24662 (S.C. Sup.

Ct. filed Aug. 4, 1997)(Davis Adv. Sh. No. 23 at 15). However, we may

make our own findings of fact and conclusions of law. Id. Further, a

disciplinary violation must be proven by clear and convincing evidence. Id.

We agree with the Panel's findings; however, we also find

respondent has engaged in a pattern and practice of neglecting legal

matters entrusted to him and incompetently representing his clients to

their detriment.

Clarendon County Case

In September 1993, respondent filed an action for a client in

the Clarendon County Court of Common Pleas (Clarendon County case).

Counsel for the defendants in this matter served various

discovery requests, including Interrogatories, Request for Production and


1The 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.

p. 4


IN THE MATTER OF MOORE

Request for Admissions, upon respondent. Except for a request for an

extension made on December 13, 1993, respondent failed to answer or

reply to any of the discovery requests and failed to return telephone calls

or reply to correspondence concerning the discovery requests. Because of

this failure to reply, the Request for Admissions were deemed admitted.

Rule 36, SCRCP. Subsequently, counsel for the defendants moved to

compel responses to the discovery. Counsel provided notice to respondent

of these motions. Respondent claimed he had assigned the discovery

portion of this case to an associate. However, respondent admitted he was

principally responsible for the file.

On May 26, 1994, the Deputy Clerk of Court for Clarendon

County prepared a non-jury roster and mailed it to all counsel who had

cases on the roster. The roster recited it was for the term of non-jury

court beginning the week of June 6, 1994, and the assigned judge would

hear motions, appeals and non-jury cases on Friday, June 10, 1994,

beginning at 9:30 a.m. There were two parts to the roster: a motions

roster and a trial roster. This case appeared on both rosters.

According to the testimony of the Deputy Clerk of Court, on

May 26, 1994, a copy of the roster was mailed to respondent at 41 Morris

Street, Post Office Box 20275, Charleston, South Carolina 29413, the

address which appeared on the Summons and Complaint. This roster was

not returned to the clerk's office by the Postal Service.

Respondent claimed he never received the roster. According to

respondent, he moved his office to 150-A St. Phillip Street in mid-

December 1993; however, respondent retained the same post office box

address. Respondent failed to notify others, including the Clarendon

County Clerk of Court and opposing counsel, of his move. As evidence

that respondent was having difficulty receiving mail during this time

period, respondent introduced a letter sent by the United States Postal

Service apologizing to its customers for misboxing and missending mail.

However, respondent offered no evidence that the Clarendon County roster

was missent or misboxed. Respondent conceded the post office box address

used by the Clerk of Court's Office was correct. Further, according to

respondent, all his mail was posted to his post office box regardless of the

mailing address used.

The Motions to Compel were heard on June 10, 1994. Counsel

for defendants was present. Respondent was not present and did not

contact the court to explain his absence. The judge granted defendants'

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IN THE MATTER OF MOORE

motions. Counsel for defendants remained in the courtroom and waited

until the case was reached on the trial roster. When the case was called,

respondent still was not present and counsel for defendants moved for

dismissal of the complaint for lack of prosecution. Defendants' motion was

granted.

After receiving the order of dismissal, respondent moved for

reconsideration and for an order to defer judgment. These motions were

denied because the judge found respondent had failed to present any

evidence to substantiate any grounds to justify vacating the previous order

of dismissal. Respondent then filed and served notice of his intent to

appeal. During the early stages of the appeal, the Supreme Court

determined the transcript had not been timely ordered by respondent and

instructed respondent to forward an original and six copies of a Motion to

Order Transcript Out of Time, along with proof of service and a $25.00

filing fee, within ten days or the appeal would be dismissed. Respondent

failed to respond. After the appeal was dismissed, respondent notified the

Supreme Court the transcript had been requested from the court reporter

in a timely fashion.

The Panel and Committee found respondent received notice

from the Clarendon County Clerk of Court scheduling the Motions to

Compel and the non-jury trial for June 10, 1994, but respondent failed to

appear, thereby violating Rule 407, SCACR, Rule 1.1 (lacked competence

in representing his client) and Rule 1.3 (failed to act with reasonable

diligence and promptness in representing a client). The Panel and

Committee also found respondent demonstrated a lack of competence in

representing his client by failing to timely order the transcript and by

failing to file a motion with the Supreme Court to order the transcript out

of time. The Panel made no findings about respondent's failure to reply to

the opposing parties' discovery requests.

We agree with the Panel's finding respondent committed

misconduct by violating Rule 407, SCACR, Rules 1.1 and 1.3 and Rule

413, SCACR, ยง 5(E), in the handling of the Clarendon County case by

failing to appear at the scheduled court date and by causing the appeal to

be dismissed. This misconduct severely prejudiced his client. Further, we

find clear and convincing evidence that respondent's failure to reply to

discovery requests, including the Request for Admissions, also violated

Rules 1.1 and 1.3. See Matter of Solomon, 307 S.C. 1, 413 S.E.2d 808

(1992) (finding misconduct where attorney failed to respond to requests for

admissions so they were deemed admitted and judgment was granted

p. 6


IN THE MATTER OF MOORE

against client). Although respondent testified he turned over all discovery

matters in this case to his associate, respondent retained control of the

case and it was his responsibility to ensure his associate was appropriately

responding to discovery requests. Rule 407, SCACR, Rule 5.1

(responsibilities of the supervisory lawyer).

Medical Malpractice Matter

A client retained respondent in early 1991 to represent her in

connection with a medical malpractice claim allegedly arising from

improper medical treatment following an injury the client sustained in

August 1990. The improper treatment occurred between August and

December 1990 and the client testified she was aware she had been

misdiagnosed by December 1990.

Respondent did not file suit on behalf of the client until June

27, 1994. Respondent testified he waited to file suit until he obtained an

opinion from another physician that the client's treating physician

committed malpractice. Respondent stated that he did not think the

statute of limitations would run on this cause of action until he had

obtained such an opinion.

The Panel found the statute of limitations on the client's claim

would have expired between August 1993 and December 1993. Therefore,

the Panel found respondent demonstrated a lack of professional

competence and failed to act with reasonable diligence and promptness in

representing the client in this matter. Rules 1.1 & 1.3.

We agree with the Panel's findings. Respondent's testimony at

the Panel hearing demonstrates his lack of understanding of the statute of

limitations and the discovery rule and is evidence of incompetency.

Further, respondent's delay in filing suit was fatal to his client's action.

Ford Motor Company Matter

In early 1994, respondent was retained to handle a claim

against Ford Motor Company for an incident that allegedly occ=ed on

January 17, 1994. This client alleged she received personal injuries when

she was trapped in a 1992 Ford Tempo vehicle by a faulty seat.

Both the client and respondent admitted there was not a

written contingency fee agreement in the Ford Motor Company matter and

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IN THE MATTER OF MOORE

respondent further admitted there was no written agreement in two other

matters handled by respondent on behalf of this client.

Additionally, respondent testified he recorded a conversation he

had with a relative of this client concerning the client's Ford Motor

Company claim. Respondent alleged it was his belief that the relative had

come to his office to extort money from him on behalf of this client.

Respondent claimed the relative advised him from the outset of the

meeting that he was recording the conversation and that respondent then

told the relative he was also recording the conversation. Testimony given

by respondent on cross-examination indicated respondent's recorder was on

when the relative entered his office. Mr. Robert Bernstein, a member of

the Board of Commissioners on Grievance and Discipline, testified, while

he was investigating this complaint, respondent advised him that he had

secretly recorded a conversation between himself and the relative. Mr.

Bernstein testified when he asked respondent if the individual knew he

was being recorded the respondent answered "Oh, no, they did not know."

The Panel found respondent violated Rule 1.5 because his

contingency fee agreements were not in writing. Further, the Panel found

respondent violated the Rules of Professional Conduct by improperly

recording a conversation without a party's knowledge or consent. See

Matter of Anonymous Member, 304 S.C. 342, 404 S.E.2d 513 (1991).

We agree with the Panel's findings. The evidence clearly and

convincingly supports the finding respondent failed to have written

contingency fee agreements with this client for the Ford claim and for two

other matters. This is a violation of Rule 1.5 requiring such agreements

be in writing. The evidence also supports the finding that respondent

secretly recorded a conversation with the relative because, even if

respondent's version of facts is believed, respondent's recorder was already

running when the relative entered his office. Secretly recording a

conversation violates the Rules of Professional Conduct. Id.

Bankruptcy Matter

In 1990, respondent agreed to represent a client in connection

with an employment discrimination suit against Willbrook Plantation. The

lawsuit was filed in the United States District Court, Charleston Division,

on July 5, 1990, but was not served until October 1990. Respondent later

amended this complaint to name Litchfield Company as the defendant.

Litchfield Company filed a Chapter 11 bankruptcy petition on March 15,

p. 8


IN THE MATTER OF MOORE

1991. On July 23, 1991, the U.S. District Court issued an order staying

this lawsuit.

Respondent did not file a claim on behalf of his client in the

bankruptcy proceeding. Respondent testified he was not hired by this

client to protect his interest in the bankruptcy proceeding and because the

bankruptcy matter was pending in a North Carolina court where

respondent was not licensed to practice law, he could not assist his client.

Further, respondent indicated it was his belief that once the automatic

stay was granted there was nothing he could do until the bankruptcy

proceeding was concluded and the stay lifted. Respondent admitted he

never advised his client of the need to protect his interest in bankruptcy

court.

An expert in bankruptcy matters, Mr. Bernstein, testified

respondent should have filed a claim with the bankruptcy court or asked

the bankruptcy court to lift the stay. Further, Mr. Bernstein stated

respondent was unaware he needed to file a claim. The client testified

respondent never advised him any action should be taken concerning the

bankruptcy matter.

Respondent admitted he did not have a written contingency fee

agreement with this client. According to respondent, no written agreement

was required because he requested attorney's fees as part of the damages

in the lawsuit.

The Panel found respondent failed to act with reasonable

diligence and promptness in representing this client by failing to serve the

defendant within thirty days after filing suit. Rule 1.3. Respondent

placed this client in imminent danger of having his lawsuit dismissed.

Additionally, the Panel found respondent engaged in conduct

demonstrating a lack of professional competence in the practice of law by

failing to file a claim in the bankruptcy court on this client's behalf after

receiving notice the defendant had filed for bankruptcy or by failing to

move before the bankruptcy court for release of the automatic stay. Rule

1.1. Further, the Panel found respondent did not have a written

contingency fee agreement with this client as required by Rule 1.5.2


2 We note that from the record it appears this representation was

begun before implementation of the Rules of Professional Conduct on

September 1, 1990. Under the prior disciplinary rules, the Code of

Professional Conduct, there was no requirement for the contingency fee

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IN THE MATTER OF MOORE

We agree with the Panel's findings. Respondent risked

dismissal of his client's lawsuit because he delayed the service of the

complaint. See Rules 1.1 & 1.3. Further, in our opinion, respondent

should have attempted to protect this client's interest in the bankruptcy

proceeding. Even though this client did not specifically instruct

respondent to protect his interest, respondent undertook this responsibility

when he agreed to represent the client in the employment discrimination

lawsuit. Rules 1.1 & 1.3.

Alleged Mishandling of Appeals

The complainant contends the Panel erred in not finding

misconduct by respondent in his handling of two appeals. Specifically, the

complainant claims respondent acted without diligence and competence in

handling these appeals and respondent attempted to mislead this Court

with respect to one of the appeals. Rules 1.1, 1.3 & 3.2 (misleading a

tribunal).

In April 1994, respondent filed an appeal on behalf of a client

(First Appeal). Respondent failed to serve and file the Appellant's Initial

Brief and Designation of Matter, thereby resulting in dismissal of the

appeal on May 10, 1994. On June 9, 1994, respondent's petition to

reinstate the appeal and for an extension of time to file the Initial Brief

and Designation of Matter was granted. Subsequently, this appeal was

dismissed on August 24, 1994, due to respondent's failure to provide proof

of service of the Record on Appeal. Respondent's petition for

reinstatement was denied and the appeal was dismissed on October 7,

1994.

Respondent testified he was unable to proceed with this appeal

because his client was unable to provide him with the funds necessary to

print the Initial Brief and Designation of Matter. Respondent claimed his

client promised to provide the funds but never did. Respondent testified

he could not afford to pay the costs of printing the appeal documents from

his own personal funds. However, respondent's petitions for reinstatement

make no mention of his client's inability to pay.


agreement to be in writing. DR 2-106, Rule 32, S.C. Sup. Ct. Rules

(repealed 1990). Therefore, the Panel erred in finding respondent

committed misconduct by not having a written fee agreement with this

client.

p. 10


IN THE MATTER OF MOORE

In a separate appeal filed by respondent (Second Appeal), on

May 8, 1995, respondent filed a Motion to Enlarge Time to File Initial

Brief and Record on Appeal with the Supreme Court. In this motion,

respondent stated he had experienced a delay in providing the court

reporter with funds for the transcript. The Court denied respondent's

motion on June 19, 1995, and directed respondent to pay the court

reporter within five days. The Court allowed respondent thirty days to file

his Initial Brief after receipt of the transcript. Respondent actually

received the transcript on or about June 14, 1995. On July 14, 1995,

respondent filed a second Motion to Enlarge Time to File Initial Brief and

Record on Appeal with the Supreme Court. In that motion, respondent

stated he had not previously requested an extension of time for the filing

of his Initial Brief and Record on Appeal. The Supreme Court granted

this motion and appeal in this case was still pending before the Court as

of the date of hearings before the Panel.

Respondent testified when he filed the July 14, 1995 motion, it

was his belief the Court had treated his May 8, 1995 motion as a motion

to extend time to order the transcript; therefore, he did not mislead the

Court.

As to the First Appeal, the Panel found respondent's testimony

credible and found it was not the duty of respondent to finance the costs

of his client's appeal. The Panel recommended dismissal of this matter.

As to the Second Appeal, the Panel found no intent on the part of

respondent to mislead the Supreme Court, and therefore, recommended

dismissing this portion of the complaint.

In our opinion, the Panel was correct in dismissing these

matters. The Panel is in the best position to judge the credibility of its

witnesses; therefore, this Court respects its finding of credibility on behalf

of respondent concerning these appeals. Yarborough, supra. Although we

do not find misconduct in respondent's handling of the two appeals,

respondent's handling of the appeals demonstrates a lack of diligence in

that respondent delayed requesting extensions until the last minute or

until after the appeal had been dismissed.

Pattern and Practice of Neglect

The complainant contends respondent's acts of misconduct

demonstrate a continuing lack of diligence and competency. We agree.

p. 11


IN THE MATTER OF MOORE

Neither the Panel nor the Committee found respondent had

engaged in a pattern of neglecting legal matters and incompetently

representing his clients. However, in our opinion, considering the entire

record, the evidence clearly and convincingly shows a pattern of neglecting

legal matters and incompetently representing his clients to their

detriment.

SANCTION

The authority to discipline an attorney and the manner in

which the discipline is given rests entirely with the Supreme Court.

Matter of Hines, 275 S.C. 271, 269 S.E.2d 766 (1980).

The Panel recommended a three month suspension.3 The

Committee recommended an indefinite suspension. These

recommendations were based upon the findings of lack of diligence,

incompetence, failure to have a written retainer agreement, improperly

recording a conversation and the fact that respondent had been disciplined

in the past.4

Incompetence is subject to sanction by this Court. Matter of

Warder, 316 S.C. 249, 449 S.E.2d 489 (1994) (public reprimand for

incompetence as well as neglect). Further, secretly recording a

conversation is subject to sanction. See Matter of Anonymous Member,

supra. The appropriate sanction for neglect of several client matters

generally is a public reprimand provided the clients are not greatly

prejudiced. Matter of Alexander, 301 S.C. 212, 391 S.E.2d 254 (1990);

Matter of Gates, 295 S.C. 516, 369 S.E.2d 841 (1988). However, when the

client is prejudiced and the attorney refused to cooperate with the Board's

investigation, the sanction imposed has been as great as a one year

suspension. See Matter of Acker, 308 S.C. 338, 417 S.E.2d 862 (1994) (six

month suspension); Matter of Palmer, 298 S.C. 324, 380 S.E.2d 813 (1989)

(one year suspension); Matter of Ballard, 312 S.C. 227, 439 S.E.2d 846


3 The Panel noted ordinarily the violations committed by respondent

would only merit a public reprimand.

4Respondent received an indefinite suspension for trust account

violations, Matter of Fred Henderson Moore, 280 S.C. 178, 312 S.E.2d 1

(1984), reinstatement granted, 298 S.C. 13, 377 S.E.2d 922 (1989); and a

public reprimand for neglecting several legal matters, Matter of Moore,

275 S.C. 280, 269 S.E.2d 771 (1980).

p. 12


IN THE MATTER OF MOORE

(1994) (one year suspension).

While there is no suggestion respondent failed to cooperate

with the investigation, respondent's clients were severely prejudiced. As a

result of respondent's neglect and incompetency, the verdict was directed

against his client and his client's appeal was dismissed in the Clarendon

County case and the statute of limitations expired in the malpractice

claim. Further, in our opinion, the facts demonstrate a detrimental

pattern of neglect and incompetency. Therefore, we find the appropriate

sanction is a suspension from the practice of law for one year.

Respondent shall file, within fifteen (15) days of this opinion,

an affidavit with the clerk of this Court stating he has complied with

Paragraph 30 of Rule 413, SCACR.

DEFINITE SUSPENSION.

C.J.

A.J.

A.J.

A.J.

A.J.

p. 13