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24951 - In the Matter of Ernest E. Yarborough

Shearouse Adv. Sh. No. 20
S.E. 2d

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

PUBLIC REPRIMAND

Attorney General Charles M. Condon and Senior

Assistant Attorney General James G. Bogle, Jr.,

both of Columbia, for the Office of Disciplinary Counsel.

Ernest E. Yarborough, of Winnsboro, pro se.







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

FACTS

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.



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In the Matter of Ernest E. Yarborough





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

telephone numbers.





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

respondent.





Client testified she did not immediately fire respondent

because she had no money to hire other counsel and she had a summary

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In the Matter of Ernest E. Yarborough





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

did.





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




2 Client was originally represented by Attorney II in the wrongful

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.

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In the Matter of Ernest E. Yarborough





representthem.





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

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In the Matter of Ernest E. Yarborough





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

previously.





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.



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In the Matter of Ernest E. Yarborough





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

baby.







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

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In the Matter of Ernest E. Yarborough





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.





DISCIPLINARY VIOLATIONS





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

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In the Matter of Ernest E. Yarborough





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.





SANCTION



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

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In the Matter of Ernest E. Yarborough





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

conferences).







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), RLDE.





PUBLIC REPRIMAND.

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