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24994 - In the Matter of Paul M. Larkin

Shearouse Adv. Sh. No. 28
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the Matter of Paul M.

Larkin,

Respondent.

Opinion No. 24994

Heard July 21, 1999 - Filed August 23, 1999

INDEFINITE SUSPENSION

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,


1 It also recommended Respondent pay $106.40 expenses incurred by

panel members for the hearing.

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In the Matter of Larkin





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

suspension.





FACTS



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,

SCACR.



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.

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In the Matter of Larkin





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

Professional Conduct.





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


4 Respondent did contend, however, that he had set aside settlement

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.

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In the Matter of Larkin





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

insufficient funds.





MITIGATION

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

forth herein.





SANCTION

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

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In the Matter of Larkin





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

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In the Matter of Larkin





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





INDEFINITE SUSPENSION.




5 We note that, as of the date of the hearing before this Court, there was

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.

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