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24780 - In the Matter of Celsor

Davis Adv. Sh. No. 14
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the matter of Richard L. Celsor, Respondent.

Opinion No. 24780

Heard March 4, 1998 - Filed April 13, 1998

PUBLIC REPRIMAND

Attorney General Charles M. Condon, Senior

Assistant Attorney General James G. Bogle, Jr.,

both of Columbia, for complainant.

S.R. Anderson, of Anderson & Jordan, of Columbia,

for respondent.

PER CURIAM: This is an attorney disciplinary matter.1 The

hearing Panel found respondent violated Rule 1.1, of Rule 407, SCACR, by

handling legal matters he was not competent to handle and failing to

secure a power of attorney to sign a client's name on legal documents;

Rule 3.3, of Rule 407, SCACR, by making false statements to the circuit

and probate courts and engaging in conduct which involves

misrepresentation and is prejudicial to the administration of justice; and

Rule 413, SCACR, ¶¶ 5A and E, by violating the oath of office and

demonstrating a lack of professional competence. The full Panel adopted

the hearing Panel's report and recommendation of a public reprimand.

We agree with the findings and conclusions made by the Panel. We

further agree the appropriate sanction is a public reprimand.


1 Respondent moved to Clarksville, Tennessee and, at the time of the

Panel hearing, he was a member of the Tennessee bar.

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IN THE MATTER OF CELSOR

DISCUSSION

Respondent's admitted misconduct centers around his handling

of a probate matter and a related wrongful death action. Bonnie Faye

Rish was murdered in Richland County in December 1991. Her only

survivor was her minor daughter, Joli Denise Rish. Joli turned eighteen

years old on October 11, 1992. Respondent represented Joli in the probate

of Bonnie's estate. Respondent also filed a wrongful death action in circuit

court on behalf of Joli on October 6, 1994. The action was brought in

Joli's name as personal representative of Bonnie's estate.2 In the wrongful

death action, respondent alleged that Joli had been appointed personal

representative of her mother's estate. However, the petition for

appointment was not filed until July 1995 and Joli was not appointed

until August 7, 1995. The Panel found respondent made a

misrepresentation to the court.

The Panel also found respondent was incompetent in his

handling of the probate and wrongful death actions. Respondent testified

that he was unaware that the only person authorized to commence a

wrongful death action was the duly appointed personal representative of

the decedent's estate.3

Respondent contends the complaint in this disciplinary matter

did not allege he was incompetent to handle the wrongful death action and

the probate matters. The complaint, however, encompasses this finding of

misconduct. It is not a new matter - the entire disciplinary proceeding

stemmed from respondent's handling of these actions. More importantly,


2 Joli Rish as Personal Representative of the Estate of Bonnie Rish,

Plaintiff v. John Dinkins and Mitchell Barkoot, Sr., d/b/a/ Bullwinkle's

Lounge, Defendants (Civil Action No. 94-CP-40-3710).

3 "The right of action for wrongful death ... may be brought only by

the executor or administrator of such deceased person. The provision that

a wrongful death action shall be brought only in the name of the

administrator or executor of the estate of the deceased means the legally

appointed administrator or executor of the estate of the deceased person. .

. . [A]n appointment by the Probate Court [is] necessary to give the

administratrix authority to act, and in the absence thereof, she had no

legal capacity to institute this wrongful death action." Glenn v. E.I.

Dupont De Nemours & Co., 254 S.C. 128, 130, 174 S.E.2d 155, 157

(1970)(Citations omitted).

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IN THE MATTER OF CELSOR

it is respondent who admitted he basically did not know what he was

doing. He testified that he had never handled a probate matter or a

wrongful death action. Even though he testified he spent two years

researching the law prior to filing the wrongful death action, he still did

not follow the proper procedure.

As to the improper signing and notarizing, in the beginning of

1996, respondent filed several documents with the probate court regarding

Bonnie's estate. A probate court clerk questioned respondent about Joli's

signature appearing differently on several documents. Respondent admits

signing Joli's name on several documents and he also admits he notarized

the signature. He claims he signed Joli's name because he had an oral

power of attorney allowing him to sign her name. A Power of Attorney

dated January 3, 1996, was presented to the probate court. However,

several documents signed and notarized by respondent were filed prior to

January 3, 1996.

The Panel found respondent had committed misconduct by

improperly signing Joli's name without a valid power of attorney,

notarizing the signature, and making misrepresentations to the courts.4

At the Panel hearing, it was pointed out to respondent that even with a

power of attorney, he should have signed indicating he was signing under

this power.5 He responded, "I really didn't think the extraneous language

was necessary."

Respondent contends he improperly signed and notarized only

one document, the initial petition to have Joli appointed as personal

representative dated July 20, 1995, and filed on August 7, 1995. He

contends he signed and notarized the Inventory and Appraisement form on

February 16, 1996, after Joli had signed the Power of Attorney on January

3, 1996. He further contends he had verbal permission to sign Joli's name

from the very beginning of his representation of her when she was only

seventeen. However, Joli testified that although she was aware that

respondent was going to take care of things, she was unaware that he

would be signing her name. Further, "there is considerable authority to


4 Judge Katherine Kennedy filed a letter of complaint with the Board

regarding the signatures on the probate documents.

5 S.C. Code Ann. §§ 26-3-60 and -70 (1991) provide that a notary

should state in the acknowledgment form that a person is signing as an

attorney in fact.

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IN THE MATTER OF CELSOR

the effect that a minor's appointment of an agent or attorney and the acts

under such appointment are not merely voidable, but void, on the theory

that the minor cannot impart a power to others which he does not himself

possess." 3 Am Jur. Agency § 10 (1986). Additionally, a power of attorney

should be evidenced by an instrument in writing. 3 Am. Jur. Agency § 23

(1986). Thus, Joli could not have given a valid verbal power of

appointment when respondent first began representing her. Further, as

noted above, respondent should have signed indicating he was acting

under a power of attorney.

In its report, the hearing Panel stated that if this disciplinary

action were governed by the "old rules,"6 it would recommend a private

reprimand.7 Respondent contends he is being treated unfairly because this

disciplinary action was begun under the old rules and, therefore, he should

be sanctioned under the old rules. Although we cannot issue a private

reprimand under the new rules, we can issue a "letter of caution" under

the appropriate circumstances.8 However, respondent's misconduct does

not merit a letter of caution. His misconduct warrants a public

reprimand.

In In re Powell, ____ S.C. ____, 478 S.E.2d 685 (1996), we

accepted a conditional admission to a public reprimand for illegally forging

and notarizing the signature of clients and failing to act with diligence

and promptness in filing a certificate of title. In In re McGuinn, 272 S.C.

366, 252 S.E.2d 122 (1979), we imposed a public reprimand for false

notarizations of signatures. A recent increase in the disciplinary actions

involving improper notarizations greatly concerns us and we note

as in McGuinn, we are "shocked by respondent's abuse of the office of


6 Respondent is referring to the former Rule 413, SCACR. This rule

was entirely re-written effective January 1, 1997.

7 We are not bound by the Panel's recommendation. Burns v.

Clayton, 237 S.C. 316, 117 S.E.2d 300 (1960). We are required after a

thorough review of the record to administer the sanction we deem

appropriate. In re Kirven, 267 S.C. 669, 230 S.E.2d 899 (1976).

8 On August 7, 1997, the rules were amended to provide for a

sanction known as a "letter of caution." A letter of caution is defined as

"a sanction imposed for minor misconduct not warranting the imposition of

a private admonition or deferred discipline agreement." ¶ 2(p) of Rule 413,

SCACR.

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IN THE MATTER OF CELSOR

notary public. A notary is a public officer, who, by his hand and seal,

authenticates certain classes of documents. The credibility of notarized

documents is essential to the viability of our legal system." Id. at 367, 252

S.E.2d at 123 (citations omitted). Further, when, as here, the documents

are then submitted to a court, the respondent compounds the dishonesty

and commits a fraud upon the court. We caution the members of the bar

who are also notaries that the duties required of the office of notary

should not be taken lightly.

We find respondent's misconduct warrants a public reprimand.

Accordingly, respondent is hereby publicly reprimanded for his misconduct.

PUBLIC REPRIMAND.

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