Davis Adv. Sh. No. 5
THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Henry
H. Cabaniss, Respondent.
Opinion No. 24752
Submitted December 2, 1997 - Filed January 26, 1998
PER CURIAM: In this attorney disciplinary matter,
respondent admits he has committed misconduct and consents to a definite
suspension for two years. We accept respondent's admissions and suspend
him from the practice of law for two years.
Law Firm Accounts
Respondent, a solo practitioner, failed to maintain the integrity
of his law firm trust and operating accounts. He failed to maintain
accurate and complete information about financial transactions involving
his clients. He improperly used his law office's operating account as a
personal checking account. From March to December of 1996, the office's
operating account had 113 checks returned for insufficient funds, 64
overdraft fees, and 107 negative balances.
The Raley Matter
Respondent handled a real estate closing for a client named
Raley. Funds were electronically transferred to respondent's trust account
in connection with the closing. Respondent wrote checks from his trust
account totaling $955 in connection with the closing during September and
October 1996. Those checks were returned for insufficient funds.
Respondent failed to pay an additional $2,752 in closing fees and other
escrowed amounts. Funds to make the necessary payments were not in
respondent's trust account at the time they were due because respondent
used the money for purposes unrelated to the Raley closing. A title
insurance company covered the losses. Respondent has reimbursed the
company for $955, but has not repaid the $2,752.
The Armstrong Matter
Lea Armstrong gave respondent $500 in August 1996 as
payment for him to handle a real estate closing. Respondent failed to
handle the transaction and did not return the money until December 1996.
Respondent admits he has committed misconduct in these
matters. Respondent failed to maintain records of his office's operating
and trust accounts. He commingled funds between his personal account,
office operating account, and trust account. Respondent used funds from
his trust account for purposes unrelated to a real estate closing for which
the funds were designated. He failed to perform a real estate closing after
accepting a fee, and did not promptly return the fee.
We conclude respondent engaged in conduct that reflects
adversely upon his honesty, trustworthiness, and fitness as a lawyer. He
engaged in conduct involving moral turpitude. He 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
1.15 and 8.4(a), (c) and (e) of the Rules of Professional Conduct contained
in Rule 407, SCACR, and Paragraph 5(D) of former Rule 413, SCACR.1
We find that respondent's conduct warrants a definite
Lawyer Disciplinary Enforcement contained in Rule 413, SCACR.
suspension of two years from the practice of law. The suspension shall be
retroactive to February 7, 1997, the date the Court placed respondent on
interim suspension 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 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
Lawyers' Fund for Client Protection for any payment it may make.