Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
24817 - In the Matter of Richard C. Bell

Davis Adv. Sh. No. 26
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court





In the Matter of

Richard C. Bell, Respondent,





Opinion No. 24817

Heard June 3, 1998 - Filed July 20, 1998





DEFINITE SUSPENSION





Attorney General Charles M. Condon and Senior

Assistant Attorney General Nathan Kaminski, Jr.,

both of Columbia, for complainant.





Desa A. Ballard, of West Columbia, for respondent.





PER CURIAM: In this attorney grievance matter, Richard C. Bell

("Respondent") is charged with engaging in misconduct in violation of various

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

Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR.



FACTS



Respondent's alleged misconduct relates to two separate matters:



1. Forgery/Property Tax Matter

In 1989-90, Respondent, through Mulberry Properties, Inc., acquired the

sole ownership interest in a condominium real estate venture known as

Mulberry Place, located in Charleston County. The development loan and

subsequent financing for the real estate venture were provided by Newberry

Federal Savings Bank ("Bank"). While Mulberry Place had been in

p.16


IN THE MATTER OF BELL





development, a previous developer had contested the 1989 tax assessment on

the property. In June 1990, Respondent pursued this dispute with the

Charleston County Tax Assessor's Office.





In October 1990, Bank extended a loan to Respondent in the principal

sum of $165,000. The purpose of this loan, as indicated in the commitment

letter, was to make necessary repairs to the project, to make current the

1988 and 1989 property taxes (which had not been paid), and to maintain

funds to use for mortgage payments until the occupancy rate was raised.





A mortgage, dated October 31, 1990, from Mulberry Properties, Inc. was

executed by Respondent to secure the $165,000 loan. On the same date, the

closing attorney issued an opinion letter stating that Bank had "valid first,

second and third mortgages on the property and their liens are paramount

except for 1988 and 1989 property taxes which are past due and 1990 taxes

which are a lien, though not yet due and payable, and all taxes subsequent

thereto." Based on this title opinion, Bank obtained copies of the property

tax execution notices and calculated the total amount of 1988 and 1989 taxes

to be $31,656.





On or about November 9, 1990, Bank issued to Respondent a check in

the amount of $31,656 from the $165,000 loan amount. The check was made

payable to Respondent and to J. Al Cannon, Jr., Charleston County Sheriff,

who was the delinquent tax collector. This check represented the exact

amount due on the 1988 and 1989 taxes. The voucher slip attached to the

check stated that it was payment for the 1988 and 1989 delinquent taxes on

Mulberry Place, Inc.





Respondent received the check. He signed his own name and also

signed on the back of the check the name of Sheriff Cannon. This was done

without the sheriff s knowledge, permission, or consent. Respondent

deposited this check into the Mulberry Place operating account at Lowcountry

Savings Bank ("Lowcountry Bank"). Respondent did not pay any of the

Mulberry Property taxes, nor did he notify Bank of his failure to do so.





Respondent's check stubs for the Lowcountry Bank Mulberry Place

operating account show a check number 136, dated November 13, 1990,

issued to "J. Al Cannon, Jr., County Sheriff, Mulberry Taxes," in the amount

of $31,656. Check number 136 was not received or processed by the

Delinquent Tax Department of the Charleston County Sheriff's Office.

Respondent claimed that he took the check to the tax office and tried to pay

the 1990 taxes instead of the 1988-89 taxes; however, officials would not

p.17


IN THE MATTER OF BELL





accept the payment. The check never cleared through Respondent's

Lowcountry Bank Mulberry Place operating account. Respondent testified

that he returned check number 136 to the checkbook, but it was subsequently

misplaced. However, the check stub was never marked "void," and the check

stubs continued to reflect a balance as if the $31,656 check had cleared the

account, although the monthly bank statements showed that it had not.1





In December 1990, Respondent asked that a portion of the funds

comprising the $165,000 loan not yet disbursed by Bank be applied to the

November mortgage payments then due for the Mulberry project. Respondent

agreed that he would be responsible for financing the pending repairs to the

project apartment units and would complete them. On December 6, 1990,

Respondent signed a document, which stated in part, "According to our

original agreement, funds were used to pay all accounts current and any

pending property taxes due."





Because the Mulberry Place property taxes were not paid, the property

was sold for taxes in 1992. Later in the year, Respondent's attempts to

reduce the taxes on the 1989 assessment were finally successful. The Tax

Assessor reduced the 1989 taxes by over $28,000. On March 8, 1993,

Respondent advised Bank that the Mulberry Place property had been sold for

taxes and had to be redeemed no later than July 1993. A Vice President at

Bank contacted Respondent on or about April 12, 1993 and asked him why

the Charleston County tax collector had never received Bank's 1990 check.

On May 7, 1993, Respondent informed Bank that he had taken care of the

1989 delinquent taxes for Mulberry, but he could not pay any other

delinquent taxes. Bank sent a check to the Charleston County tax collector

in the amount of $75,961 to pay the 1988, 1990, and 1991 property taxes due.

Title to all of the apartment units owned by Mulberry Properties, Inc. was

conveyed by Respondent to Bank on February 7, 1994 in consideration of the

cancellation of the notes and mortgages due to Bank.



Respondent was indicted in 1995 by the Charleston County Grand Jury

for forgery of Sheriff Cannon's name on the Bank check. Respondent applied

for and was accepted into a. Pretrial Intervention Program under the

supervision of the Ninth Circuit Solicitor's Office. Respondent completed the


1 On or about January 1991, a couple offered to sell Respondent their

residence located in Charleston County if Respondent could make a $25,000

down payment and close on the house in thirty days. Respondent used

$24,000 of the funds in the Lowcountry Bank Mulberry Place operating

account to make this down payment on the residence.

p.18


IN THE MATTER OF BELL





Program and made restitution to Bank in the amount of $31,656.





2. Martin Matter

Donna Martin, a resident of Utah, desired to adopt a child. She sent

her information to a South Carolina adoption specialist, who forwarded the

information to five South Carolina attorneys specializing in adoptions.

Respondent was one of these attorneys. This information found its way into

the files of A Loving Choice Adoption Agency ("Adoption Agency"). Adoption

Agency was operated by Respondent's wife, Mrs. Deborah Bell. Respondent

and Adoption Agency shared office space, a receptionist, a bookkeeper,

secretarial help, and, at one time, even a common phone number.

Respondent and Mrs. Bell testified that Respondent represented Adoption

Agency as its attorney. Mrs. Bell stated that when there are legal questions

to be answered, they are referred to Respondent. Adoption Agency, however,

does not pay Respondent any regular fee or retainer for his services. His fee,

when he provides legal services to an adopting parent, is billed separately

from the agency fee, directly to the adopting parent.





Mrs. Bell contacted Ms. Martin about an adoption opportunity. Ms.

Martin testified that she agreed to pay $3000 to Adoption Agency to cover

such expenses as counseling, food, lodging, and medical costs. Ms. Martin

called Respondent to follow through with the adoption. She claimed that she

spoke with Respondent a few times before the birth of the child being

considered for adoption. Ms. Martin believed that Respondent was

representing her in the adoption.





Respondent filed a petition in March 1995 in the family court. This

petition was accompanied by an affidavit signed by the birth mother. The

affidavit stated in part: ". . . I am a resident of the State of South Carolina

and I have selected an Adoptive Parent from the State of Utah, who is

represented by Richard C. Bell, Esquire, whom I believe to be a suitable and

qualified adopting parent for this child." Respondent stated that the

document was prepared by Adoption Agency staff, and he filed it without

closely reviewing it.





A few weeks later, the birth mother. gave birth to the child being

considered for adoption. Ms. Martin testified that she called Respondent, and

Respondent arranged to obtain the necessary consent forms for adoption

before Ms. Martin undertook the expense of traveling to South Carolina. In

late March 1995, Respondent obtained the birth mother's signature on the

consent forms. One form contained a statement that Respondent did not



p.19


IN THE MATTER OF BELL

represent the prospective adoptive parent, Ms. Martin.2





Ms. Martin took a flight to South Carolina and met Respondent and the

birth mother at the airport. Ms. Martin delivered a check to Respondent for

$3,365, payable to Adoption Agency. Respondent presented to Ms. Martin a

legal risk document stating that the father of the child had not given consent.

Ms. Martin signed this document.





The next day the birth mother changed her mind about giving up her

child for adoption. Ms. Martin called Respondent's office to obtain advice

about how to handle the situation, but he was not available. Ms. Martin

decided to return to Utah. She was unsuccessful in completing the adoption.

In April 1995, she wrote Respondent, indicating she was terminating his

representation and demanding reimbursement of funds paid to Adoption

Agency. Respondent replied and returned a large portion of the fee Ms.

Martin had paid to Adoption Agency.





The Panel found that Respondent's involvement in the adoption process,

as well as the advice and document preparation that he provided, formed a

basis upon which Ms. Martin reasonably believed that Respondent was

representing her interest in this matter. Respondent did not clearly explain

to Ms. Martin whose interests he was representing. She reasonably believed

that Respondent failed to disclose actual or potential conflicts of interest and

that she had not been properly represented. The Panel found that

Respondent was representing multiple clients with adverse interests.

Because of his failure to recognize Ms. Martin as his client, he did not

provide competent representation.




2 Respondent testified that he believed that Ms. Martin would finalize the

adoption in Utah. This testimony was contrary to his written response to the

Board of Commissioners; in that response, he stated that Ms. Martin was not

sure whether she would proceed with the adoption in South Carolina or Utah,

and if she had determined to finalize in South Carolina, then Respondent

would not have ultimately taken the mother's consents, but would have had

another attorney to obtain them. The hearing Panel concluded that this

provided evidence that Respondent did engage in discussions with Ms. Martin

about adoption finalization, which would necessarily have involved legal

issues.

p.20


IN THE MATTER OF BELL





DISCUSSION





The hearing Panel's report, which discusses the above facts, was

adopted by the full Panel. Respondent did not file any exceptions to the full

Panel's adoption of the report. After examining the facts, we find that

Respondent's misconduct has been proven by clear and convincing evidence,

and this misconduct violates the following: Rule 407, SCACR: Rule

8.4(b)(criminal acts that reflect adversely on lawyer's honesty, trustworthiness

or fitness as a lawyer in other respects); Rule 8.4(c)(conduct involving moral

turpitude); Rule 8.4(d)(conduct involving dishonesty, fraud, deceit or misrepre-

sentation); Rule 8.4(e)(conduct that is prejudicial to the administration of

justice); Rule 1.1 (lawyer shall provide competent representation to a client);

Rule 1.7(b)(lawyer shall not represent a client if the representation of that

client may be materially limited by the lawyer's responsibilities to another

client or to a third person); Rule 2.2 (conditions under which common

representation is permissible); Rule 413, SCACR: Rule 7(a)(5)(conduct tending

to pollute the administration of justice).





Since Respondent does not contest the facts of this case, nor the rule

violations, the central issue before us is the sanction to be imposed. We have

treated very seriously attorney misconduct in matters involving the forging

of signatures, as well as misrepresentation and deceit. See In re T. Aladdin

Mozingo, Op. No. 24769 (S.C. Sup. Ct. filed Feb. 23, 1998)(Davis Adv. Sh. No.

8 at 30)(Court accepted disbarment of attorney whose misconduct included

tracing of a Supreme Court justice's signature on a purported family court

order); State v. Belcher, 249 S.C. 301, 153 S.E.2d 921 (1967)(attorney

disbarred for forging special referee and circuit judge's names); In re Timothy

Walker, 305 S.C. 482, 409 S.E.2d 412 (1991)(attorney indefinitely suspended

for forging circuit judge's signature); In re Marlene Sipes, 297 S.C. 531, 377

S.E.2d 574 (1989)(attorney suspended for one year where she signed her

husband's name to checks, without his permission, and used Girl Scout funds

for her personal purposes); In re George Lyall, 328 S.C. 121, 492 S.E.2d 99

(1997)(attorney suspended for nine months where his misconduct included

forging wife's signature on a check for a trust and using funds for personal

purposes).





In addition, we have sanctioned attorneys for representing conflicting

interests or not clarifying whom they represent. See In re Julian Morgan,

288 S.C. 401, 343 S.E.2d 29 (1986)(attorney publicly reprimanded for

representing clients with conflicting interests); In re William Pyatt, 280 S.C.

302, 312 S.E.2d 553 (1984)(attorney publicly reprimanded where he failed to

exercise proper care and judgment in explaining to clients that he did not

p.21


IN THE MATTER OF BELL





represent their legal interests).



We note that Respondent has previously been disciplined. In 1986,

Respondent was publicly reprimanded for taking control of a check issued to

a client's wife, who was an adversary to client in impending domestic

litigation, and for assuming control of her money in violation of a foreclosure

order. Two members of this Court dissented from the decision to impose a

public reprimand on Respondent, concluding rather that he should be

suspended for one year. See In re Richard C. Bell, 289 S.C. 290, 345 S.E.2d

475 (1986).





The hearing Panel recommended a definite suspension of six months.

The full Panel adopted this recommendation. We find Respondent's

misconduct warrants a nine month suspension. Within fifteen 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.





DEFINITE SUSPENSION.









p.22