THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Ernest
E. Yarborough, Respondent.
Opinion No. 24951
Heard February 3, 1999 - Filed June 7, 1999
Attorney General Charles M. Condon and Senior
Assistant Attorney General James G. Bogle, Jr.,
both of Columbia, for the Office of Disciplinary Counsel.
PER CURIAM: In this attorney disciplinary proceeding,
respondent, Ernest E. Yarborough, is charged with committing misconduct
arising out of hi,s alleged improper conduct toward a client. We find
respondent committed misconduct and impose a public reprimand.1
Client testified on or about June 24, 1996, respondent was
retained to represent her as Personal Representative of her brother's
1 On April 3, 1997, respondent was placed on interim suspension for
being convicted of a serious crime. Respondent is appealing his conviction
and that appeal is pending before the South Carolina Court of Appeals.
Disciplinary proceedings have been stayed in this matter. Further, on
December 14, 1998, respondent was disbarred from practicing before the
United States Court of Appeals for the Fourth Circuit.
estate in a legal malpractice action against Attorney I, who had been
retained to handle a wrongful death action on her behalf At that time,
client was an unmarried, 24 year old college student. Respondent
provided client with his business card which also listed his home and car
On Saturday, June 29, 1996, a day after the retainer was paid,
respondent traveled to Spartanburg and met client and her mother at
their house. Respondent, client, and her mother then all rode in client's
mother's car to interview witnesses in the wrongful death case. Because
they were unable to locate one witness, respondent decided to stay
overnight. While still riding in the car, respondent inquired about a local
church and when he discovered it was the church client attended he
commented he would attend church with her the following day. Client's
mother did not attend this particular church.
Client testified respondent asked client to go with him to the
mall so he could purchase a suit. While the suit was being altered,
respondent asked client to watch a movie with him. After the movie,
respondent inquired about the location of a hotel. Client showed him to a
Day's Inn. Respondent asked client to come to his room and talk. They
conversed about the case for approximately 30 minutes. Upon leaving,
respondent asked client to give him a hug. Client complied with the
request. She testified it was an innocent hug and nothing inappropriate
happened. The next day, respondent attended church with client.
Client testified the next weekend, July 6, 1996, respondent
called and advised her he was returning to Spartanburg to interview
another witness. Respondent told client he was staying at a certain hotel
and asked client to bring him some razors. Client testified when she
arrived at the hotel with the razors that afternoon, respondent began
kissing and hugging her. When she told respondent to stop, he complied,
but he made some derogatory comments to client, including inquiring if
she was a lesbian or if she had been molested as a child. Respondent
paid client the money for the razors and she left the hotel. Because she
was upset, client testified she went to the home of her aunt and related
the incident to her. Client denied making any romantic advances toward
Client testified she did not immediately fire respondent
because she had no money to hire other counsel and she had a summary
judgmentmotion pending. However, she did advise respondent she was
going to file a grievance against him. Client testified respondent
continued telephoning her. According to client during these telephone
calls, respondent asked her to meet him in various towns, requested client
act passionately toward him, asked her to have his baby, and asked her to
marry him. During the calls, respondent also made explicit comments
regarding the effect client had on him physically. The telephone records of
respondent's home telephone number reflected many calls were made to
client in the evening, outside of normal business hours. Further, client's
telephone records reflected a number of telephone calls from her to
respondent at night. However, client testified many of these calls
concerned the case and a possible settlement. Further, according to client,
some of these calls may have been made by her mother, with whom she
lived. Client testified respondent did not send her any cards, letters, or
gifts. However, respondent had promised to buy her a dress, but he never
Client admitted on August 26, 1996, she hired respondent to
represent her on another legal malpractice action against Attorney II, who
had also been retained to handle the wrongful death action.2
Client's mother testified she had driven respondent, her
daughter and herself around Spartanburg interviewing witnesses on the
first weekend. Further, she testified when her daughter returned -from
respondent's hotel after the second visit she was acting "sadly." The
mother testified client told her of respondent's unwelcome sexual advances
a day or so after it occurred. The mother admitted she did not express
outrage to respondent because she was afraid he would no longer
death action. On or about October 25, 1993, Attorney II was relieved from
further representation. Attorney I assumed representation of client.
Summary judgment was granted in favor of the defendants in this action
on or about March 24, 1994. Client then retained Attorney III to sue
Attorney I for legal malpractice. A similar lawsuit was filed against
Attorney II Because Attorney I brought a third party plaintiff action
against Attorney III, on or about February 27, 1996, Attorney III was
relieved from representation of client in the lawsuit filed against Attorney
I; however, she continued to represent client in the lawsuit against
Attorney II until August 23, 1996.
The mother testified because she was suspicious of
respondent's request that client travel to Union to meet him, she
accompanied her daughter. According to the mother, respondent reacted
in a shocked fashion when he saw her with client.
The mother testified respondent asked her if she thought he
would make a good husband for her daughter. The mother verified both
she and her daughter called and talked to respondent on many occasions.
Client's aunt testified client arrived at her house unexpectedly
on the day of the incident, upset and crying. Client related she had gone
to respondent's hotel room and he hugged her and tried to kiss her. The
aunt testified she talked with client for an hour or two and advised her
not to meet with respondent alone in the future. The aunt testified she
thought her niece was flattered by the attention shown previously by
respondent but client had never expressed any attraction to respondent.
The aunt admitted client had mentioned a professor at college. But,
according to the aunt, the relationship was not romantic.
Respondent's testimony confirmed when he was retained by
client in June 1996, a motion for summary judgment was pending for July
9, 1996, and a great deal of preparation was necessary. Respondent
admitted he gives clients his home telephone number and tells them to
call him anytime. Respondent admitted he often talked with client on the
telephone. Further, many of these telephone calls were made in the
evenings. Respondent testified most telephone calls would last
approximately 3-5 minutes unless the mother also spoke on the telephone.
Then the calls would exceed 30 minutes. Respondent testified 95% of the
calls would be business related. Respondent testified he gave client's calls
top priority because client and her mother were very demanding and he
wanted to keep them satisfied.
Respondent testified when he traveled to Spartanburg the first
weekend he did not intend to spend the night. However, he decided to
stay over in order to talk with a witness. Respondent denied he invited
himself to church. Instead, he claimed he was invited by client and
client's mother. Further, respondent claimed they invited him to spend
the night at their house. However, he declined this invitation.
Respondent admitted he went to the mall to buy a suit, and while it was
being altered,he suggested he and client see a movie. Respondent
testified each paid for their own admission. Respondent testified it was
close to midnight when client showed him to the hotel. Further, according
to respondent, client asked to go up to his room so she could talk about
the case, and respondent consented. Respondent claimed they talked
about the case until approximately 2:00 a.m. Client became upset during
the discussions regarding her brother and started crying. As client left
the room., she gave respondent a "church hug."
Respondent admitted he called client from his car on the way
to Spartanburg the second weekend to advise her when he would arrive.
When she arrived at the hotel, he and client went to a store so he could
purchase razors. He denied asking client to purchase the razors. When
they returned to the hotel, client advised respondent the witness was
unavailable. Respondent testified when he told client he was going to
leave, client became irate because respondent was not there to see her.
Respondent testified, as client left the room, she hugged him in the same
manner as before. Respondent claimed he did not touch client and that
she was not the type of person to whom he was normally attracted.
Respondent testified on the second visit he expected both client and her
mother to come to the hotel and to ride him around as was done
On cross examination, respondent testified on neither weekend
did he try to find a neutral site such as a hotel conference room or
meeting room in order to discuss the case with client. Further, in
hindsight, he admitted this was poor judgment.
Respondent testified, in hindsight, he realized the mother "was
trying to play matchmaker" because she had noticed respondent was not
wearing a wedding band. Respondent testified the mother asked him if "a
lawyer would make a good husband [for client]." Respondent denied
asking the mother if he would make a good husband for client. At the
time, respondent did not take the mother's comments seriously. However,
he made it clear he did not get involved with clients. When the mother
began to make comments about client's infatuation with respondent,
respondent advised the mother he would terminate his representation if
client did not get her feelings under control. Respondent denied he had
done anything to lead her on. Respondent testified client was a very
strong minded person and they had personality conflicts.
Respondenttestified because time was of the essence, he
utilized client as a runner for obtaining necessary signatures on affidavits.
According to respondent, client and her mother traveled to Columbia to
facilitate this process. Further, respondent testified he did not recall
asking client to come to Union, but doubted he did because he was
involved in a serious trial. However, he confirmed he had asked client to
come to Newberry while he was in trial to pick up some affidavits.
Respondent testified client revealed to him she was involved
with a professor at college. According to respondent, when she expressed
concern over being a virgin, respondent joked about her being a lesbian.
Further, respondent related that client had told him the professor was
pressuring her to become intimate and respondent inquired if client was
afraid of becoming pregnant. Respondent denied asking client to have his
Respondent confirmed he was hired on the second legal
malpractice case in August 1996. Respondent claimed the relationship
started to sour around October 28, 1996, the date of the motion for
dismissal and summary judgment against Attorney I. The mother and
client had become outraged and antagonistic toward him because the
expert had determined client's brother had died of cocaine ingestion.
Further, after the case was dismissed because previous counsel had failed
to obtain proper service of an amended complaint, client threatened to
"bring him down." Respondent testified client fired him on October 28,
1996, but he felt he was in a "Catch 22" because a summary judgment
motion was approaching in the other action on November 5, 1996.
Therefore., respondent prepared for and attended the hearing. At the
November 5, 1996 hearing, client advised the court of respondent's alleged
sexual harassment. Respondent felt this was simply an attempt by client
to obtain a continuance which the court would otherwise not allow. Client
was granted a continuance and respondent was relieved as counsel.
Following the October 28, 1996 hearing, client retained another attorney to
represent her in these actions. This attorney did not require a retainer.
Formal charges alleged respondent had engaged in a pattern of
conduct consisting of sexual harassment and/or improper sexual conduct
toward a client, thereby violating Rule 7(a) (1), (5), and (6) of the Rules
For Lawyer Disciplinary Enforcement, Rule 413, SCACR (RLDE), and Rule
1.7(b) and 8.4(c) and (e) of the Rules of Professional Conduct, Rule 407,
SCACR (RPC). After a hearing, a subpanel of the Commission on Lawyer
Conduct (Commission) found misconduct and recommended respondent
receive a public reprimand. The subpanel concluded this misconduct
violated Rule 7(a)(1), (5), and (6) of the RLDE, and Rule 8.4(a), (c) and (e)
of the RPC. The full Commission adopted the subpanel's report.
Although this Court is not bound by the findings of the
subpanel and Commission, these findings are entitled to great weight,
particularly when the inferences to be drawn from the testimony depend
on the credibility of the witnesses. Matter of Marshall, 331 S.C. 514, 498
S.E.2d 869 (1998); Matter of Yarborough, 327 S.C. 161, 488 S.E.2d 871
(1997). However, this Court may make its own findings of fact and
conclusions of law. Matter of Marshall, supra. Further, a disciplinary
violation must be proven by clear and convincing evidence. Id.
We agree with the subpanel and Commission's conclusion that,
by clear and convincing evidence, respondent committed misconduct by
making an unwanted sexual advance toward client on July 6, 1996, and by
making inappropriate sexual comments to client. The resolution of this
matter turns on the credibility of client and respondent. The subpanel
concluded respondent's testimony was not credible and client's version of
events was credible. In reaching this conclusion, the subpanel relied on
the fact that client's testimony was corroborated by the testimony of her
mother and her aunt. The fact that these witnesses were sequestered
further supported this conclusion. In finding respondent's version of the
incident not credible, the subpanel noted inconsistencies in respondent's
testimony such as doubting he asked client to come to Union because he
was involved in a "serious" trial, however, admitting he asked client to
come to Newberry while he was in trial. As noted by the subpanel,
instead of denying making the improper comments, respondent only
claimed they were taken out of context. Further, respondent never denied
the touching occurred. Instead, he asserted client instigated the contact.
We agree with the subpanel's finding that client's version of the events
was credible and respondent's version was not credible.
Respondent's misconduct violated Rule 7(a)(1) (violating or
attempting to violate the RPQ Rule 7(a)(5) (engaging in conduct tending
to pollute the administration of justice or to bring the courts or the legal
profession into disrepute or conduct demonstrating an unfitness to practice
law); and Rule 7(a)(6) (violating the oath of office), of the RLDE. Further
respondent violated Rule8.4(a) (violating or attempting to violate the
RPQ; Rule 8.4(c) (engaging in conduct involving moral turpitude); and
Rule 8.4(e) (engaging in conduct prejudicial to the administration of
justice), of the RPC.
The authority to discipline attorneys and the manner in which
the discipline is given rests entirely with the Supreme Court. Matter of
Marshall, supra; Matter of Hines, 275 S.C. 271, 269 S.E.2d 766 (1980).
Matter of Bellino, 308 S.C. 130, 417 S.E.2d 535 (1992), is
factually similar to this case. In that case, attorney pled guilty to military
charges involving attorney's inappropriate touching of two female clients.
Id. The clients had not consented to the touching. The military court
found attorney unfit to be a marine. In addition to a 31 month temporary
suspension, this Court suspended attorney for six months and required
him to retake and pass the Professional Responsibility Examination. Id.
This Court found the harsh sanction was appropriate because attorney's
conduct constituted an abuse of the power he possessed as the clients'
attorney. The clients were in vulnerable positions and attorney attempted
to take advantage of their need for help. Id.
Similar cases from other jurisdictions involving inappropriate
touching and comments to either clients or employees have resulted in a
wide range of sanctions. See Matter of Piatt, 951 P.2d 889 (Ariz. 1998)
(attorney is publicly censured for making sexually harassing comments to
clients); People v. Dawson, 894 P.2d 756 (Colo. 1995) (attorney convicted of
second degree attempted sexual assault and charged with sexual assault of
a client was disbarred); People v. Lowery, 894 P.2d 758 (Colo. 1995)
(attorney was suspended for one year and one day for sexually harassing
three female employees, including making inappropriate comments and
engaging in unwelcome touching); People v. Bergner, 873 P.2d 726 (Colo.
1994) (attorney was publicly censured for participating in a conversation
with a divorce client that was sexual in nature and made the client
uncomfortable); The Florida Bar v. McHenry , 605 So.2d 459 (Fla. 1992)
(attorney was disbarred where he had improperly touched a female client
and had masturbated in front of another female client and he had received
two prior public reprimands); Matter of Rinella, 677 N.E.2d 909 (111. 1997)
(suspended attorney for at least three years where attorney took
advantage of his superior position by pressuring three divorce clients into
having sexual relations with him and attorney testified falsely in the
disciplinary proceeding); Iowa Supreme Court Bd. of Professional Ethics
and Conduct v. Hill, 540 N.W.2d 43 (Iowa 1995) (attorney, who was
previously disciplined for engaging in sex with a client, was suspended
from practice for at least one year where attorney made unwelcome sexual
advances toward another client); In re Howard, 912 S.W.2d 61 (Mo. 1995)
(attorney was suspended for at least six months for sexual harassment of
clients and for asserting in motions papers the judge acted under "unusual
amount of influence" from opposing counsel); Columbus Bar Association v.
Baker, 647 N.E.2d 152 (Ohio 1995) (attorney, who abused cocaine and
alcohol, was placed on probation for two years for using vulgar and
sexually explicit language in the presence of a 17 year old female
employee); State ex rel Oklahoma Bar Association v. Sopher, 852 P.2d 707
(Okla. 1993) (public reprimand was warranted where attorney made
improper comments to a client and inappropriately touched the client
without her consent); Matter of Disciplinary Proceedings against Heilprin,
482 N.W.2d 908 (Wis. 1992) (attorney, who had previously been disciplined
for the same misconduct, was disbarred where he directed sexually explicit
and suggestive comments and questions to two female clients during office
Respondent has been disciplined by this Court in the past in
unrelated matters. On August 4, 1997, respondent was definitely
suspended for six months. Yarborough, supra.
Although respondent's misconduct could have potentially
created a conflict of interest and affected his ability to exercise
independent professional judgment and render candid advice to client,
there is no evidence in the record respondent failed to provide adequate
representation of client after she rebuffed his advances. Instead, the
record indicates respondent was a zealous advocate for client and took all
the necessary steps to protect client's interests. Therefore, we publicly
reprimand respondent for his inappropriate behavior toward this client and
order respondent to pay the costs of this action. See Rule 7(b)(8),