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24785 - In the Matter of Benjamin C. Wofford

Davis Adv. Sh. No. 18
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the Matter of

Benjamin C. Wofford, Respondent.

Opinion No. 24785

Heard April 21, 1998 - Filed May 11, 1998

DISBARRED

Attorney General Charles M. Condon and Senior

Assistant Attorney General James G. Bogle, Jr.,

both of Columbia, for Disciplinary Counsel.

Benjamin C. Wofford, of Columbia, pro se.

PER CURIAM: In this disciplinary matter, respondent is

charged with engaging in misconduct in violation of various provisions of

the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR (RLDE),

and the Rules of Professional Conduct, Rule 407, SCACR.

FACTS

In relevant part, the formal charges allege as follows:

1. The McKinney Matter

Respondent represented Gerald McKinney in a domestic

relations action; Mrs. McKinney was represented by Attorney Douglas N.

Truslow. The matter included the sale of jointly owned property, netting

approximately $160,740.55, which was placed into respondent's escrow

account on or about December 17, 1996. The following day, the daily

balance in the escrow account fell below the requisite amount of

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In the Matter of Wofford

$160,740.55 and continued below this amount until December 26, 1996.

The balance again fell below this amount from January 6,

1997, until about February 1997, when the account was frozen pursuant to

this investigation. Upon information and belief, respondent, or someone at

his direction, misappropriated the McKinney funds, without knowledge or

permission of Mr. McKinney, Mrs. McKinney, or Douglas Truslow.

2. The Robertson Matter

Bonnie M. Robertson refinanced a mortgage. At the closing on

approximately November 20, 1996, respondent withheld the sum of

$162,914.67 to pay off a prior construction mortgage. Subsequent to the

closing, a dispute arose between Mrs. Robertson and her construction

lender as to the amount of the payoff. Mrs. Robertson brought respondent

a check for $4,794.97. Respondent was to hold all of these funds in escrow

on Mrs. Robertson's behalf. Bank records for respondent's escrow account

show a deposit of approximately $160,000.00 on or about November 20,

and $4,794.97 on or about November 21, 1996.

On January 14, 1997, Mrs. Robertson's construction lender

commenced a foreclosure action regarding the construction mortgage. Mrs.

Robertson retained another attorney who began contacting respondent to

determine the status of the funds. Respondent failed to reply to the

attorney's inquiries. On February 6, 1997, the attorney faxed respondent

a letter demanding that he either deposit Mrs. Robertson's fund with his

office or with the court pending a resolution of the foreclosure action.

Respondent did not reply to this letter.

The daily balance in the escrow account fell below the requisite

amount of approximately $162,914.67 on December 18, 1996, continued

below this amount until December 26, 1996, and again fell below this

amount from January 6, 1997, until the present. Upon information and

belief, respondent misappropriated the approximate sum of $162,914.67.

3. The Chicago Title Matter

Chicago Title Insurance Company insured a number of closings

which were to have been conducted in an appropriate manner by

respondent. However, subsequent to the closing of respondent's trust

account on the date of his interim suspension, Chicago Title established

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In the Matter of Wofford

the following instances in which payoffs were not made:

(a) Waybright: the insured closing letter was issued April 18,

1995, and Respondent failed to make the required payoff of approximately

$59,473.22, misappropriating same.

(b) Hester: the insured closing letter was issued January 23,

1997, and respondent failed to make the required three payoffs of

approximately $169,729.03, misappropriating same.

(c) Phillips: the insured closing letter was issued January 3,

1997, and respondent failed to make the required payoff of approximately

$6,129.69, misappropriating same. After being advised by her bank that

her account was in arrears and no payments had been received, Mrs.

Phillips attempted to contact respondent several times over a three week

period; respondent failed to reply.

(d) Non-real estate transaction: regarding a settlement of

approximately $54,600.00, respondent collected a fee of $13,600, but the

remaining funds, approximately $41,000, were not disbursed and

misappropriated by respondent.

4. The Laura Kellum Matter

On October 15, 1996, respondent represented Laura Kellum at

the closing of the sale of her home. In mid-November, Mrs. Kellum was

contacted by the mortgage company and informed respondent had not paid

off her mortgage. Mrs. Kellum's attorney and realtor contacted respondent

about this matter. Eventually, Mrs. Kellum received money from the sale

of her home, but did not receive any interest on sums withheld by

respondent. Respondent offered no explanation for the unreasonable delay

in making the payoff to the mortgage company.

5. The John P. Dunmire Matter

Mr. Dunmire retained respondent about July 1996 to represent

him on the purchase of a lot. The closing was held on October 23, 1996,

and Mr. Dunmire made his final payment in full, completing the sale on

or about January 10, 1997. When Mr. Dunmire wrote his February 21,

1997, letter of complaint to the Commission, respondent had not provided

Mr. Dunmire with the original mortgage, title, title insurance policy, or

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In the Matter of Wofford

any of the other necessary documents to effect the closing. Repeated

attempts by Mr. Dun-mire to contact respondent went without reply.

6. Escrow Account

Bank records indicate Respondent's escrow account had a

negative balance on twenty-two occasions in 1995, ranging from -$343.00

to -$60,462.03.

Respondent did not file an answer to the formal charges (or

request an extension in which to do so or file any other motion). He did

not appear at the hearing before the subpanel of the Commission on

Lawyer Conduct (the Commission) and he filed no exceptions to the

subpanel's report recommending he be disbarred. The full panel adopted

the subpanel's report and recommendation. Respondent failed to appear

for oral argument before this Court.

DISCUSSION

Because he failed to answer the formal charges, failed to

appear before the hearing panel, and failed to appear for oral argument

before this Court, respondent is deemed to have admitted the factual

allegations contained in the formal charges. Rule 24, RLDE.

We find, by his various instances of misconduct, respondent

has violated Rule 7, RLDE, by violating the Rules of Professional Conduct,

engaging in conduct tending to pollute the administration of justice or

bring the court or legal profession into disrepute or demonstrating an

unfitness to practice law, and violating his oath of office. Additionally, he

has violated Rule 1.1 (failure to provide competent representation), Rule

1.4(a) (failure to keep clients reasonably informed about the status of

matters and complying with reasonable requests for information), Rule

1.2(a) (failure to consult with clients), Rule 1.3 (failure to act with

reasonable diligence), Rule 1.15 (failure to promptly deliver funds to a

third person, misappropriating client funds, and failure to promptly render

a full accounting), Rule 8.4(b) (committing a criminal act which reflects

adversely upon the lawyer's honesty), Rule 8.4(c) (engaging in conduct

involving moral turpitude), Rule 8.4(d) (engaging in conduct involving

dishonesty, fraud, deceit, and misrepresentation), and Rule 8.4(e) (engaging

in conduct prejudicial to the administration of justice) of Rule 407,

SCACR.

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In the Matter of Wofford

The authority to discipline attorneys and the manner in which

the discipline is given rests entirely with the Supreme Court. Matter of

Marshall, Op. No. 24775 (S.C. Sup. Ct. filed March 23, 1998)(Davis Adv.

Sh. No. 11 at 15). The Court has disbarred attorneys for similar instances

of misconduct. Matter of Sturkie, ___ S.C.___, 489 S.E.2d 924 (1997);

Matter of Mundy, 326 S.C. 194, 485 S.E.2d 381 (1997); Matter of Boyle,

316 S.C. 375, 450 S.E.2d 578 (1994); Matter of Edwards, 323 S.C. 3, 448

S.E.2d 547 (1994).

We conclude respondent's misconduct warrants disbarment

from the practice of law.1 Within fifteen (15) days of the date of this

opinion, respondent shall file an affidavit with the Clerk of the 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, 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, including restitution to the Lawyers' Fund for

Client Protection for any payment it may make.

DISBARRED.


1Because he failed to appear for oral argument before this Court,

respondent is deemed to have agreed to the sanction imposed. Rule 24(b),

RLDE.

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