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24926 - In the Matter of Graab

Shearouse Adv. Sh. No. 12
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court



In the Matter of George

Allen Graab, Jr., Respondent.



Opinion No. 24926

Submitted February 9, 1999 - Filed March 22, 1999



INDEFINITE SUSPENSION



George Allen Graab, Jr., of Lexington, pro se.



Henry B. Richardson, Jr., of Columbia, for the Office

of Disciplinary Counsel.





PER CURIAM: In this attorney disciplinary matter, respondent

and Disciplinary Counsel have entered into an agreement under Rule 21 of

the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule

413, SCACR. In the agreement, respondent admits misconduct and consents

to either a definite suspension for a period between eighteen (18) and

twenty-four (24) months or an indefinite suspension. We accept the

agreement for an indefinite suspension.





Amstetten Corpration Matter



Respondent represented Amstetten Corporation, Inc. in a real estate

mortgage refinance matter in 1996. The mortgage was refinanced by First

Palmetto Savings Bank (First Palmetto). The closing took place in

respondent's office on June 20, 1996. As a result of the transaction,

respondent was instructed to set up a trust account, file the mortgage

documents, and pay the Richland County taxes for the year 1995.

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IN THE MATTER OF GRAAB





Respondent received $150,000.00 from First Palmetto and

allegedly, this amount was deposited into respondent's trust account with

Wachovia Bank on June 21, 1996.





Respondent produced financial records which did not include

bank statements and checks for the year 1996. Respondent stated he

misplaced those financial records. Respondent ordered monthly statements

for 1996 from his bank, which reflected a deposit of $150,000.00 on June 21,

1996. However, an examination of respondent's trust account records failed

to produce a deposit ticket for the $150,000.00 transaction, or an entry in

respondent's Safeguard system.





Respondent's client files on this transaction were examined and

the materials did not reflect a ledger card, disbursement sheet, or closing

statement to support bank receipt of these funds. Respondent claims hie is

unable to locate or provide any of the disbursement documents.





Respondent, pursuant to the closing instructions, also was to pay

the Richland County taxes for tax year 1995, in the amount of $3,107.79.

Respondent admits failing to pay the 1995 taxes, but states the failure was

due to an administrative oversight by his secretary.





Pursuant to county procedures, the Richland County Treasurer's

Office auctioned off the property of Amstetten Corporation in December

1996, for failure of the property owners to pay the 1995 tax bill. The

property was subject to redemption by the owners, upon payment of 1995

taxes, interest, penalties, and the current taxes due for 1996. Respondent

and Amstetten Corporation were notified of the sale by letter from the

Richland County Treasurer on October 22, 1997.





The Treasurer's letter also indicated the First Palmetto

mortgage was not indexed under the number which it was supposed to be

indexed. Subsequently, the Treasurer gained knowledge that First Palmetto

had an existing mortgage on the property. First Palmetto was notified of the

sale and the requisite actions necessary to redeem the property, prior to the

actual sale.





Respondent, as a result of the June 20, 1996 closing, was

supposed to file the First Palmetto mortgage reflecting the $150,000.00

refinancing transaction. Respondent admits he did not file the mortgage in a

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IN THE MATTER OF GRAAB





timely fashion. Further, an examination of respondent's client file regarding

this matter failed to produce any document reflecting that the new mortgage

was filed by respondent after the June 20, 1996 closing and prior to July 24,

1997. Respondent's 1996 financial records were also examined and they

failed to yield a receipt or a copy of the check written to the county RMC

office to pay for the filing of the mortgage.





Respondent failed to respond to a representative of First

Palmetto's repeated telephone calls about this matter. Respondent also

failed to communicate with First Palmetto's counsel. Respondent stated he

felt it more appropriate to go through his title insurance company's lawyer

and let that lawyer deal directly with counsel for the lender.





Respondent eventually filed the mortgage on July 24, 1997;

however, the mortgage was rejected by the RMC office for failing to have the

requisite signatures. The mortgage was refiled on October 31, 1997. The

check written from respondent's trust fund account payable to RMC, while

dated June 20, 1996, was not negotiated until July 1997, corresponding to

the filing date.





Respondent admits between June 20, 1996 and October 14, 1997,

that $2,977.99 of the client's $3,107.79, being held in trust to pay the 1995

county taxes, was misappropriated and converted to purposes other than for

which it was intended. Further, respondent admits he deposited and

commingled personal funds into the trust account to make up for the

shortage of client funds.







In a letter to Disciplinary Counsel regarding this matter,

respondent made several false statements.





Other Trust Account Violations



Respondent misappropriated funds for his own use by repaying

personal loans, and paying for personal and family expenses. Respondent

also commingled personal funds with client funds.





Jeffcoat/Gore Matter



Respondent represented client Ronald McCombs relative to a

personal litigation matter during 1996 and 1997. A deposition of Jacquelyn

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IN THE MATTER OF GRAAB







McCombs was taken on March 8, 1996. Respondent ordered a copy of the

deposition from court reporter, Annette Gore. Respondent admits ordering

and receiving the deposition, as well as receiving the invoice of $629.20.

Respondent admits he did not pay Gore when the invoice arrived. He states

the payment of the bill was the responsibility of his client and that the bill

was not paid in a timely manner because he could not collect payment from

his client.





After retaining a lawyer who corresponded with respondent,

respondent made partial payment to Gore. When respondent failed to

completely pay, Gore retained another lawyer, Samuel L. Jeffcoat. Jeffcoat

filed a non-jury complaint in magistrate's court on or after March 17, 1997.

Respondent filed an answer asserting he did not contract with the court

reporter and the contract- was between his client and Gore.





A hearing was held, although respondent failed to appear due to

a conflict in court schedules. Judgment was entered against respondent in

the amount of the balance of the debt plus $100.00. Respondent has

appealed this judgment, and part of the defense is respondent's reliance on

an Ethics Advisory Opinion, which states the client is responsible for

deposition costs in specific circumstances.







Kimberly Engelke Matter



Kimberly Engelke submitted a letter of complaint to the Office of

Disciplinary Counsel on August 5, 1997. Engelke is respondent's client in a

divorce action. The letter stated respondent has failed to communicate with

her, has misinformed her as to whether certain documents were being filed,

and has not followed through on actions respondent stated he would perform

in the furtherance of her case.





In a final divorce hearing, dated August 13, 1997, Engelke stated

on the record that she was satisfied with the advice and counsel her attorney

had given her. Respondent, in a letter to the Office of Disciplinary Counsel,

stated he had written to the court reporter of that hearing and requested a

copy of the transcript to verify Engelke's statement. However, respondent

received the transcript and failed to submit the transcript to the Office of

Disciplinary Counsel for review immediately upon receipt.





A notice of full investigation was submitted to respondent which

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IN THE MATTER OF GRAAB







included allegations that respondent had failed to provide proof of the

client's posture to the Office of Disciplinary Counsel. Respondent submitted

a response which stated he had received the hearing transcript and that the

transcript supports his position.





Respondent was interviewed by an investigator, during which

respondent provided a copy of the transcript, and stated his failure to

provide the transcript to the Office of Disciplinary Counsel was an oversight

due to matters in his professional and personal life.





Disciplinary Counsel (complainant)



A fee dispute arose between respondent and a client, John F.

Flannery. As a result, a fee dispute application was filed with the Fee

Dispute Board on September 3, 1996. A hearing before the Board was held

and the Board recommended the matter be resolved by respondent

reimbursing Flannery $500.00. Flannery notified the Board on March 21

and April 27, 1998 that respondent had failed to pay the amount of $500.00.

A letter of information was submitted to Disciplinary Counsel who wrote to

respondent requesting a reply within fifteen days. The letter was hand

delivered to respondent during his interview with an investigator. There

was a misunderstanding between respondent and the investigator as to

when respondent's written response was due. Respondent has since

provided a written response.





Conclusion



Respondent has violated numerous provisions of the Rules of

Professional Conduct contained in Rule 407, SCACR. Respondent converted

client funds for his own purposes and failed to keep complete records of his

trust account funds. Rule 1.15. He failed to provide competent

representation. Rule 1.1. He failed to act with reasonable diligence and

promptness. Rule 1.3. He failed to keep his client reasonably informed

about the status of the case and respond to requests. Rule 1.4. Respondent

brought or defended a proceeding, or asserted or controverted an issue which

was frivolous. Rule 3.1. He knowingly made false statements of a material

fact to a tribunal. Rule 3.3. Respondent failed to make truthful statements

to others. Rule 4.1. He failed to have respect for the rights of others. Rule

4.4. He knowingly made false statements to the Office of Disciplinary

Counsel, failed to disclose facts to that office, and failed to respond to a

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IN THE MATTER OF GRAAB







lawful demand for information from that office. Rule 8.1(a) & (b). He

engaged in conduct involving dishonesty, fraud, deceit and

misrepresentation in violation of Rule 8.4 (a),(d),&(e).





Accordingly, respondent is suspended indefinitely. Within

fifteen days of the date of this opinion, respondent shall file an affidavit with

the Clerk of this Court showing that he has complied with Rule 30 of Rule

413, SCACR.



INDEFINITE SUSPENSION.



C.J.

A.J.

A.J.

A.J.

A.J.

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