THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Paul M.
Opinion No. 24994
Heard July 21, 1999 - Filed August 23, 1999
Desa Ballard, of West Columbia, for respondent.
Attorney General Charles M. Condon and Assistant
Deputy Attorney General J. Emory Smith, of
Columbia, for the Office of Disciplinary Counsel.
PER CURIAM: In this attorney disciplinary matter, Respondent Larkin
is charged with engaging in misconduct in violation of various provisions of the
Rules of Professional Conduct (RPC) contained in Rule 407, SCACR, and the
Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413,
SCACR. The Sub-Panel recommended an Indefinite Suspension.1 The Full
Panel adopted the Sub-Panel's report and recommendation. Respondent
stipulated to the majority of facts found by the Panel, and does not except to the
recommended sanction; however, he requests the sanction be retroactive to Jan.
8, 1998, the date of his interim suspension. See Matter of Larkin, 329 S.C. 30,
panel members for the hearing.
495 S.E.2d 422 (1998).2 We concur with the recommended sanction and hereby
impose an indefinite suspension, retroactive to the date of Respondent's interim
This matter was instituted by a complaint alleging Respondent had issued
Letters of Protection to pay the medical bills of 13 of his personal injury clients,
but had not done so, notwithstanding the cases had been settled with the
insurance companies. Thereafter, Respondent failed to respond to two letters
from Disciplinary Counsel concerning this matter. A full investigation was
commenced and Respondent was notified to appear for a hearing on Dec. 10,
1997; he was issued a subpoena duces tecum to bring all bank statements,
checks, and account information for the previous two years with him but did not
produce all bank records until sometime after the hearing.3
As a result of the investigation, the following problems were discovered
with Respondent's various bank accounts:
A. THE KOLCUN MATTER
Respondent represented Victoria Kolcun concerning her purchase of a
mobile home. Between April, 1996 and November, 1997, Respondent made
numerous loans and mortgage payments to or for Kolcun from his Anchor Bank
escrow account, his Anchor Bank operating account, his First Citizens escrow
account, and his First Citizens operating account. Respondent admits these
monies were disbursed to Kolcun without funds available from her to cover the
disbursals, and admits that to the extent Kolcun was a client, the loans are
violative of restrictions on advancing funds to clients. Rule 1.8, RPC, Rule 407,
B. THE PHIPPS MATTER
2 Respondent was previously publicly reprimanded for failure to exercise
diligence with clients, failure to communicate, and failure to respond to
investigative requests. Matter of Larkin, 320 S.C. 512, 466 S.E.2d 355 (1996).
3 Although the Panel found Respondent initially failed to respond, it
found that he did fully cooperate once he retained counsel to represent him.
Respondent represented Catherine Phipps in a personal injury matter
which was settled for $9000.00 on Cict. 24, 1997. He disbursed most of these
proceeds to himself and to Phipps, but did not pay Phipps' medical expenses,
notwithstanding he had issued Letters of Protection to the care providers.4 He
also made loans to Phipps which he admits were inconsistent with the Rules of
C. THE DONAHUE AND HANICK MATTERS
Respondent represented Kimberly Donahue and her daughter, Patricia
Hanick, in a personal injury/auto accident case. Donahue's claim was settled
for $82,500, and Hanick's was settled for $77,500.00. In the Donahue matter,
Respondent disbursed approximately $59,000.00 of the settlement to himself
and to Donahue, and allegedly withheld the remaining funds (approximately
$23,438.22) for payment to medical providers. However, the medical providers
were never paid and the funds were removed from the trust account and used
for other purposes. Additionally, Respondent made several loans and advances
to Donahue which he admits are not authorized by the Rules of Professional
Conduct. Finally, Respondent failed to pay Donahue's medical bills,
notwithstanding Letters of Protection had been issued.
Regarding the Hanick matter, Respondent made disbursements of
approximately $55,000.0 upon settlement of Hanick's claim, and made use of
the remaining funds (approximately $19,000.00) for purposes unrelated to
Hanick. Respondent also made loans to Hanick, and failed to pay her medical
providers, notwithstanding Letters of Protection had been issued.
D. THE PETRICK MATTER
Respondent represented Alan Petrick in a personal injury matter which
was settled for $60,000.00. Respondent disbursed a majority of the settlement
proceeds to himself and Petrick. Respondent was unable to account for
approximately $6900.00 of undisbursed settlement proceeds. He also made
loans to Petrick, which were subsequently repaid from settlement funds.
Respondent admitted both that the loans were improper under the RPC, and
that the unaccounted for funds had been misappropriated. Finally, Respondent
funds to pay a portion of one of Phipps' medical bills, but that he had not
negotiated the balance at the time of his, interim suspension.
failed to pay Petrick's medical bills, notwithstanding Letters of Protection had
been issued to medical providers.
E. THE WILLIS CHIRO-MED MATTER
Respondent admits he failed to pay the Willis Chiro-Med bills for a
number of his clients, despite having issued Letters of Protection to Willis and
having received settlements from which the bills were to be paid.
In addition, Respondent failed to return the phone calls of both Willis and
a number of clients concerning his failure to pay these medical expenses.
G. TRUST ACCOUNT BALANCES
During the relevant time periods herein, Respondent's trust account
balances at both Anchor Bank and First Citizen's Bank revealed repeated
negative balances and numerous overdrafts, and checks returned for
The only mitigation found by the Sub-Panel was the fact that numerous
members of the Horry County Bar testified concerning his abilities as a lawyer.
Although the Sub-Panel made no specific findings regarding the matter, we
note that the hearing was devoted almost exclusively to witnesses attesting to
Respondent's substantial community involvement, good character and
reputation for honesty, and his lack of motive to gain profit in the matters set
The Sub-Panel found Respondent had breached the following provisions
of the RPC, Rule 407, SCACR, and the RLDE, Rule 413, SCACR: 1)
Appropriated client's funds to his own use. Rule 1.15, Rule 407. 2)Failure to
promptly deliver client funds to client or a third person. Rule 1. 15. 3) Failure
to promptly render a full accounting. Rule 1.15 4) Committed acts adversely
reflecting on his honesty, trustworthiness, and fitness as a lawyer. Rule 8.4(6).
5) Improperly advanced funds to clients. Rule 1.8(e). 6) Engaged in conduct
involving moral turpitude. Rule 8.4 (c). 7) Engaged in conduct involving
dishonesty, fraud, deceit and misrepresentation. Rule 8.4(d). 8) Failed to act
with reasonable diligence and promptness in representing a client. Rule 1.3.
9) Failed to keep a client reasonably informed and comply with requests for
information. Rule 1.4(a). 10) Violated the Rules of Professional Conduct. Rule
8.4(a). 11) Engaged in conduct prejudicial to the administration of justice. Rule
8.4(e). 12) Engaged in conduct tending to pollute the administration of justice
or bring the courts or legal profession in disrepute, or engaged in conduct
demonstrating unfitness to practice law. Rule 7(a)(5), RLDE.
Based on the foregoing, the Sub-Panel recommended, and the Full Panel
concurred with, a sanction of Indefinite Suspension, and the condition that
Respondent bear the costs of the hearing ($106.40). We agree with the findings
of misconduct and the recommended sanction.
While this Court may draw its own conclusions and make its own
findings, the unanimous findings and conclusions of the Panel are entitled to
much respect and consideration. In re Glover, 333 S.C. 423, 510 S.E.2d 419
(1998). The Court may make its own findings of fact and conclusions of law,
and is not bound by the panel's recommendation. Burns v. Clayton, 237 S.C.
316, 117 S.E.2d 300 (1960) supra. The Court must administer the sanction it
deems appropriate after a thorough review of the record. Matter of Kirven, 267
S.C. 669, 230 S.E.2d, 899 (1976).
In cases involving similar misconduct, this Court has imposed various
sanctions. See Matter of Glover, 333 S.C. 423, 510 S.E.2d 419 (1998)(indefinite
suspension warranted for failing to deliver to clients and third persons funds
that clients and third persons were entitled to receive, failing, to render a full
accounting, committing acts that reflected adversely upon attorney's honesty,
trustworthiness, and fitness as a lawyer, engaging in conduct involving moral
turpitude, engaging in conduct involving dishonesty, fraud, deceit, and
misrepresentation, engaging in conduct prejudicial to the administration of
justice, engaging in conduct tending to pollute the administration of justice, and
violating the oath of her office); Matter of Cabaniss, 329 S.C. 366, 495 S.E.2d 779
(1998) (definite suspension of two years for failing to maintain financial records,
commingling funds from personal, operating and trust accounts, misusing trust
funds', and failing to perform services); Matter of Edwards, 293 S.C. 413, 361
S.E.2d 123 (1987) (indefinitely suspending attorney who presented false
documents in workers' compensation case, gave forged divorce order allegedly
executed by family court judge to client, and improperly used trust funds to
cover shortages in other accounts); Matter of Hunter, 331 S.C. 586, 503 S.E.2d
464 (1998)(disbarment warranted for misappropriating client funds and
converting these funds for his own gain and for failing to act with reasonable
diligence and promptness in representing clients); Matter of Ledford, 328 S.C.
280, 494 S.E.2d 118 (1997) (forgery and misappropriation of $83,000.00 for
attorney's personal investment warranted disbarment).
We hereby impose the recommended sanction of an indefinite suspension,
retroactive to the date of Respondent's interim suspension. Respondent shall
also pay the expenses of the panel in the amount of $106.40. Within fifteen
days of the date of this opinion, respondent shall surrender his certificate of
admission and file an affidavit with the Clerk of this Court showing that he has
complied with Rule 30 of Rule 413, SCACR (Duties following disbarment or
suspension). In addition to all other requirements respondent must meet prior
to being reinstated pursuant to Rule 33, RLDE, it is hereby ordered that
Respondent must demonstrate to the satisfaction of the Committee on
Character and Fitness that he has made sufficient restitution to all clients and
medical care providers involved in the underlying matters.5
uncertainty as to the precise amounts owed to various clients and medical
providers. Accordingly, with the consent of both parties, we leave the amounts
due and payable, and the determination of whether Respondent has made
sufficient restitution for the Committee on Character and Fitness at such time
as Respondent petitions for reinstatement.