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24760 - In the Matter of Donald M. Holler

Davis Adv. Sh. No. 6
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

    In the Matter of

    Donald M. Holler,         Respondent.

Opinion No. 24760

Heard December 15, 1997 - Filed February 9, 1998

DEFINITE SUSPENSION

Attorney General Charles Molony Condon, Assistant Deputy
Attorney General J. Emory Smith, Jr., both of Columbia, for
Complainant.
Coming B. Gibbs, Jr., of Gibbs & Holmes, of Charleston, for
Respondent.

        PER CURIAM: In this attorney disciplinary matter, we impose on

Donald M. Holler ("Attorney") a 30 day suspension and place him on

disability inactive status.

FACTS

DAVIS MATTER

        Attorney admitted the following allegations: In August 1993, Hackles

Davis, Jr. retained Attorney to handle two separate legal matters. These

included a dispute with Davis's brother regarding the dissolution of a farming

partnership and an accounting of various partnership assets, and a dispute

with Davis's brother and other parties regarding certain real property. Davis

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IN THE MATTER OF HOLLER

paid Attorney a retainer of $1,000.00.

        Davis alleged that Attorney failed to communicate with him about the

status of these matters, failed to return his phone calls, and failed to supply

him with an accounting for the fees Davis paid him.

        The Panel found that Attorney had prepared a complaint with respect

to the dissolution of the farming partnership. Davis stated that Attorney had

told him that he had filed the action, but when Davis went to the clerk of

court's office, he was told that nothing was on file. Attorney claimed that he

had received a phone call on his answering machine from a woman indicating

that Davis did not want the suit brought because Davis and his brother were

trying to resolve the matter on their own. Davis, his wife, and his son

denied having knowledge of any call to Attorney asking him to cease working

on the case.

        In relation to the dispute surrounding the real property, a deed had

been prepared incorrectly, and Davis had hired Attorney to correct this

problem. Attorney did not take any action; nor did he respond to numerous

phone calls by Davis. Additionally, Attorney failed to respond to the letters

from the Board of Commissioners on Grievances and Discipline.

JENKINS MATTER

        Attorney admitted the following allegations: In June 1994, Robert

Jenkins retained Attorney to represent him in transferring title to some real

estate and in bringing an action against a car dealership for a defective paint

job. Jenkins paid Attorney a $500.00 retainer. Jenkins claimed that he did

not receive the deed. After Jenkins complained to the Board, Attorney

reports that he sent him a copy of the deed. Attorney never took any action

for Jenkins as to the paint job, and he never returned the retainer. He failed

to respond to Jenkins's attempts to contact him about the status of these

matters. He also failed to respond to two letters from the Board.

        The Panel found that the deed transferring the property to Jenkins by

his daughter was originally signed in June or July 1994, but was apparently

lost by Attorney and never filed. Attorney prepared the deed again, and it

was executed on November 8, 1994 and recorded by Attorney on December

21, 1994. Jenkins did not receive a copy of the deed from Attorney.

Attorney would not respond to Jenkins's attempts to contact him by phone

and letter. Jenkins's daughter testified that Attorney had told her that the

first deed was lost when Attorney was moving between offices and that he

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IN THE MATTER OF HOLLER

had prepared a second deed. She also indicated that Attorney had told her

that the action concerning the paint job had been filed, but no copies had

been sent to her.

        Attorney testified that there were two deeds; the second was prepared

to correct the first. He stated that he had sent the first deed to Jenkins, but

did not know whether he had sent the second. He admitted not having sent

a copy of the second deed to Jenkins until after the complaint was filed. He

also admitted to failing to respond to the letters from the Board of

Commissioners on Grievances and Discipline.

MANIGAULT MATTER

        Attorney admitted the following allegations: Attorney was the buyer's

attorney for the closing of a sale of land in Berkeley County by Clifton

Manigault in August 1995. From the closing, Attorney retained $3,086.50,

of which $450.00 was his fee, $2,488.50 was for taxes on the property to be

sent by him to the Department of Revenue, and $148.00 was for deed stamps.

Attorney failed to pay the Department of Revenue until September 9, 1996,

after Manigault complained to the Board on August 20, 1996. Attorney also

failed to record the deed until after Manigault complained.

        The Panel found that Attorney breached the Rules of Professional

Conduct, Rule 407, SCACR, by failing to deliver promptly to a client or to a

third person such funds client or person was entitled to receive (Rule 1.15(b));

by failing to act with reasonable diligence and promptness in representing a

client (Rule 1.3); and by failing to keep a client reasonably informed about

-the status of a matter and to promptly comply with reasonable requests for

information (Rule 1.4(a)). Additionally, Attorney failed to cooperate with the

investigations of the Board. See In re Treacy, 277 S.C. 514, 290 S.E.2d 240

(1982).

        The Panel was impressed with Attorney's honesty and his desire for

treatment and rehabilitation. It was convinced that Attorney's failings did

not represent a willingness to allow or condone wrongdoing, but were the

result of a single, isolated incident of major depression stemming from

numerous difficult circumstances. In its March 24, 1997 report, the Panel

recommended that Attorney's sanction be a public reprimand conditioned

upon repayment of $500.00 to Jenkins and $1000.00 to Davis. Furthermore,

the Panel recommended that Attorney be barred from active daily practice

unless he agrees to participate in a mentor program and to file psychological

reports not less frequently than every six months until such time that his

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IN THE MATTER OF HOLLER

psychiatrist certifies that the current mental illness has ended and has been

successfully treated.

        The Interim Review Committee voted to adopt the Panel's findings of

fact and conclusions of law; however, it disagreed with the suggested

sanction. It unanimously recommended that Attorney be suspended from the

practice of law for 30 days, and in light of the fact that Attorney is presently

on administrative suspension for his failure to pay Bar dues,1 that he be

placed on disability inactive status.

SANCTION

        We have imposed a wide range of sanctions in cases involving such

misconduct as neglect of legal matters, failure to disburse proceeds, failure

to communicate with clients, and failure to cooperate with the Board. Cases

in which public reprimands have been imposed include the following: In re

Davis, 321 S.C. 281 (1996); In re Larkin, 320 S.C. 512, 466 S.E.2d 355 (1996);

In re Ledford, 317 S.C. 177, 452 S.E.2d 605 (1994); In re Warder, 316 S.C.

249, 449 S.E.2d 489 (1994); In re Howard, III, 303 S.C. 278, 400 S.E.2d 138

(1991); In re Alexander, 301 S.C. 212, 391 S.E.2d 254 (1990); In re Nida, 297

S.C. 541, 377 S.E.2d 580 (1989).

        Definite suspensions have been imposed in the following cases: In re

Shibley, 320 S.C. 362, 465 S.E.2d 356 (1995)(60 day suspension); In re Tootle,

319 S.C. 392, 461 S.E.2d 824 (1995)(4 month suspension); In re Acker, 308

S.C. 338, 417 S.E.2d 862 (1992)(6 month suspension); In re Nida, 315 S.C.

132, 432 S.E.2d 462 (1993)(9 month suspension); In re Ballard, 312 S.C. 227,

439 S.E.2d 846 (1994)(1 year suspension); In re Palmer, 298 S.C. 324, 380

S.E.2d 813 (1989)(1 year suspension); In re Chastain, 316 S.C. 438, 450

S.E.2d 578 (1994)(2 year suspension).

        In the present case, the gravity of Attorney's misconduct warrants a

sanction of suspension. In mitigation, we consider that Attorney has

admitted nearly all the allegations against him. Moreover, he has presented

a significant amount of other evidence in mitigation. Attorney developed a

severe depression during the period of time the above instances of misconduct

occurred. His psychiatrist, Dr. John Roberts, testified that Attorney suffered

from a single major depressive episode. Attorney experienced a confluence


         1Attorney was suspended by the South Carolina Bar on March 12, 1997

for failure to pay Bar dues. On August 5, 1997, the Court issued an order

suspending him for failure to pay Bar dues.

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IN THE MATTER OF HOLLER

of unfortunate circumstances: He ran into financial difficulty as a result of

poor business; he had to become the sole caretaker for his mother who had

developed Alzheimer's disease; he had spent 400 hours on a case, but five

days prior to trial, his client decided to back out, leaving Attorney without

pay. During this period, he became depressed, having crying spells, social

withdrawal, fatigue, weight-loss, and suicidal tendencies. He and his wife

separated.

        Attorney's psychiatrist prescribed an anti-depressant for him. Dr.

Roberts did not believe that Attorney was likely to repeat his neglectful

pattern of behavior with clients. The psychiatrist's testimony was confirmed

in many respects by Attorney's wife and children, who testified to his weight-

loss, depression, and isolation. Thus, it does not appear that Attorney's

neglect of legal matters stemmed from innate corruption, but resulted largely

from his psychological condition.

        Considering Attorney's misconduct, we conclude that an appropriate

sanction is a 30 day suspension to commence from the date of this opinion.

Moreover, because of his condition, Attorney is to be placed on disability

inactive status. In addition to fulfilling the requirements for reinstatement

as set forth in Paragraph 19, Rule 413, SCACR, prior to his reinstatement,

Attorney must also make restitution to his clients (in the amounts of

$1000.00 to Davis and $500.00 to Jenkins). While Attorney is on disability

inactive status, the requirements of Bar dues and continuing legal education

will be suspended.

DEFINITE SUSPENSION.

C.J.

A.J.

A.J.

A.J.

A.J.

p. 17