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24987 - In the Matter of Robert John Murphy
Shearouse Adv. Sh. No. 27
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the Matter of.

Robert John Murphy,

Jr.,

Respondent.

Opinion No. 24987

Heard March 4, 1999 - Filed August 9, 1999

DEFINITE SUSPENSION

Attorney General Charles M. Condon and Senior

Assistant Attorney General James G. Bogle, Jr., both

of Columbia, for the Office of Disciplinary Counsel.

Mark W. Hardee, of Lewis, Babcock & Hawkins,

LLP, of Columbia, for respondent.





PER CURIAM: Respondent failed to answer the formal charges

filed against him and failed to appear at his panel hearing, and is therefore

deemed to have admitted the factual allegations made in the charges. Rule

24 of Rule 413, SCACR. The subpanel and the full panel recommended

disbarment for misconduct arising out of respondent's administration of his

aunt's estate. We suspend respondent for nine months effective upon the

filing of this opinion.





Respondent's aunt's estate was opened in 1992, and respondent

and his brother were appointed co-personal representatives. Respondent

removed certain records necessary for the matter to be properly probated

from South Carolina. Respondent repeatedly refused to comply with orders

and directives of the probate court, failed to pay bequests, and in September

1996 was removed as co-personal representative. The September order

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IN THE MATTER OF: MURPHY





required respondent to return the records to his brother. Respondent failed

to comply, and was subsequently arrested twice on bench warrants issued by

the probate court. At the second contempt hearing before the probate court,

respondent acknowledged taking $9,500 of estate funds for his own use.

Following this proceeding, respondent repaid the money and assisted his

brother in closing the estate. Further, in the course of the disciplinary

investigation, respondent made a false statement to an investigator.





The subpanel found respondent violated Rule 7(a) of Rule 413,

SCACR, by: (1) violating the Rules of Professional Conduct [Rule 7(a)(01; (2)

failing to respond to an inquiry from the Commission on Lawyer Conduct

[Rule 7(a)(3)]; (3) 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 [Rule 7(a)(5)]; and (4)

willfully violating a valid Richland County Probate Court order [Rule

7(a)(7)]. It also found respondent violated the following rules of Professional

Conduct in his role as co-personal representative of his aunt's estate: (1)

competence (Rule 1.1); (2) scope of representation (Rule 1.2); (3) diligence

(Rule 1.3); (4) communication (Rule 1.4); (5) safekeeping property (Rule 1.15);

(6) making a false statement of material fact [Rule 3.3(a)(1)]; (7) failing to

expedite litigation (Rule 3.2); (8) untruthfulness in statements to others

(Rule 4. 1); (9) failing to respect the rights of his brother, the estate's co

personal representative, by using means that had no purpose other than to

embarrass, delay or burden him (Rule 4.4); and (10) engaging in conduct

involving moral turpitude, dishonesty, fraud, deceit or misrepresentation,

prejudicial to the administration of justice.





Following the subpanel's report, respondent pro se filed a

document entitled "Response to Panel Report." In this document, respondent

contests certain factual conclusions, but primarily included medical records

and his narrative of personal problems to mitigate, but not excuse, his

conduct. The Attorney General objected to this submission because he

lacked the opportunity to verify or investigate its contents, and pointed out

that respondent's default posture precluded any challenge to the factual

findings of the subpanel. While Rule 26(c)(7) of Rule 413 allows respondent

to file objections to the subpanel's report, respondent's submission

improperly tried to present evidence and challenge conclusive factual

findings.

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IN THE MATTER OF: MURPHY





Respondent then wrote requesting he be allowed to appear

before the full panel and stating that he had retained an attorney. On

October 8, 1998, the full panel unanimously adopted the subpanel's report

and recommendation. Respondent apparently was not permitted to appear.





In his brief before this Court, respondent asks us to remand for

consideration of his mitigating evidence. Rule 27(c)(1) of Rule 413, SCACR

provides "If the Supreme Court desires an expansion of the record or

additional findings, it shall remand the case to the hearing panel We

decline to remand this matter. Respondent was able to perform his duties as

a federal Administrative Law Judge with the Social Security Administration

during the entire eight and a half years his aunt's estate was open, and

during the entire period this disciplinary action was pending. Under these

circumstances, we discern no reason to permit him a belated opportunity to

offer evidence in mitigation of his misconduct.







We agree that respondent's ' conduct which included willful

violation of valid court orders and misrepresentations to the probate court as

well as misappropriation of the estate's funds, warrant a nine month

suspension. Respondent shall, within fifteen days of the date of this opinion,

serve and file an affidavit of compliance as required by Rule 30(g), SCACR,

and shall remit costs in the amount of $294.46. See generally Rule 30,

SCACR. Accordingly, respondent is



DEFINITELY SUSPENDED.





Toal, A.J., not participating

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