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25028 - In the Matter of Smith

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

THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the Matter of Horace

A. Smith, Respondent.

Opinion No. 25028

Heard October 20, 1999 - Filed December 6, 1999

PUBLIC REPRIMAND AND SUSPENSION

Horace A. Smith, of Columbia, Pro Se Respondent.

Attorney General Charles M. Condon and Assistant

Deputy Attorney General J. Emory Smith, Jr. ; both

of Columbia, for the Office of Disciplinary Counsel.





PER CURM: In this attorney grievance matter, Horace A.

Smith ("Attorney") is charged with engaging in misconduct in violation of

various provisions of the Rules of Professional Conduct contained in Rule 407,

SCACR, and the Rules for Lawyer Disciplinary Enforcement contained in Rule

413, SCACR.





FACTUAL/PROCEDURAL BACKGROUND

On April 1,1996, the Commission on Lawyer Conduct (the "Commission")

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IN THE MATTER OF SMITH





served Attorney with a notice and complaint alleging misconduct during the

representation of a client, Ronald Quarles, on a shoplifting charge in municipal

court. The charges alleged that during Quarles's trial Attorney argued with the

court after the court had made rulings, made inappropriate gestures,

interrupted the testimony of witnesses, and mumbled inappropriate comments

despite warnings not to do so. Attorney filed an answer denying the allegations

in the complaint.





A hearing convened on June 12, 1996 to consider the allegations brought

against Attorney. The Commission found that Attorney had committed

misconduct and recommended an indefinite suspension from the practice of law

until Attorney could show that he is mentally and physically capable of the

practice of law. The Commission petitioned this Court to place Attorney on

temporary suspension until Attorney's case concluded. At that time, Attorney

petitioned this Court to be placed on disability inactive status based on his

suffering from diabetes, pancreatitis, and depression. On January 22, 1997,

this Court placed Attorney on disability inactive status.







In light of Attorney being placed on disability inactive status, the Interim

Review Committee found the Commission's recommended sanction of indefinite

suspension too harsh. On January 23, 1998, this Court remanded Attorney's

case to the Commission so that more information could be obtained concerning

Attorney's current medical condition and to consider the proposed sanctions in

light of Attorney's previous suspension ten years earlier. See In re Smith, 296

S.C. 86, 370 S.E.2d 876 (1988).





On May 13,1998, the Commission filed and sent Attorney a second notice

of formal charges. These charges alleged Attorney engaged in misconduct while

representing inmate Michael Ray McCreight as the court-appointed attorney

for McCreight's PCR application. The notice alleged that Attorney never visited

McCreight to discuss his case, he failed to respond to McCreight's letters, and

he did not file any papers on McCreight's behalf. After McCreight filed his

complaint with the Commission, an investigator scheduled an interview that

Attorney failed to attend.





On July 22, 1998, a sub-panel convened to discuss both the Quarles and

McCreight matters. This first hearing was adjourned so that Attorney could

undergo a psychological evaluation. The sub-panel reconvened on September

16, 1998, and heard testimony from Dr. Robert Deysach, Ph.D., a clinical

psychologist; Dr. Harold Morgan, a board certified psychiatrist; Dr. Henry

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IN THE MATTER OF SMITH





Martin, a general practitioner; Attorney's niece Tiffany Jennings; and Attorney.





As to the Quarles matter, the medical experts testified extensively about

Attorney's medical condition and the effects his diabetes, pancreatitis, and

depression may have had on his behavior. Also, Attorney admitted all of the

allegations made against him in the McCreight matter. After the hearing, the

Commission made the following conclusions:

1. In the Quarles matter, the Commission recommended the Court

suspend Attorney for one year and require Attorney to: (1) complete

a course with Law Office Management Assistance Program

(LOMAP); (2) file with the Clerk medical statements showing his

ability to practice law; and (3) enter into some type of supervisory

relationship with another attorney for two years;

2. In the McCreight matter, the Commission determined that

Attorney violated the Rules of Professional Conduct and the former

Rule on Disciplinary Procedure, including that he:

a. Failed to act with reasonable diligence in representing a

client [Rule 1.3];



b. Failed to keep a client reasonably informed about the status

of the matter and comply promptly with reasonable requests

for information [Rule 1.4(a)];

c. Engaged in conduct demonstrating a lack of professional

competence in the practice of law [Rule 1.1 and former Rule

413, § 5(E)];

d. Engaged in conduct that is prejudicial to the administration

of justice [Rule 8.4(e)];

e. Engaged in conduct tending to pollute the administration of

justice or to bring the courts or legal profession into disrepute

and engaged in conduct demonstrating unfitness to practice

law [former Rule 413, §5(D)].

3. As punishment in the McCreight matter, the Commission

recommended a one-year suspension.

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IN THE MATTER OF SMITH





Under the Commission's recommendation, Attorney would receive a two-year

suspension made retroactive to January 22,1997. Attorney would also have to

comply with the suggested restrictions on his practice.







SANCTION



Since Attorney does not make any legal arguments to this Court, the only

issue is the proper sanction for Attorney's disrespectful action in the Quarles

matter and the neglect of his duties in the McCreight matter.





I. QUARLES MATTER

The Commission recommends a suspension of one-year for Attorney's

misbehavior in front of the municipal court. We disagree.





While the Commission's findings are entitled to great weight, this Court

has the ultimate authority to discipline attorneys. Matter of Hall, 333 S.C. 247,

509 S.E.2d 266 (1998). 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 determining the appropriate punishment, this

Court has looked to the punishment given to other attorneys for similar

behavior. See Matter of Fox, 327 S.C. 293, 490 S.E.2d 265 (1997).







A one-year suspension from the practice of law goes much farther than a

any punishment we have previously given to an attorney for such misbehavior

in a judicial proceeding. In cases where attorneys have behaved much worse

than Attorney, a public reprimand has been the strongest punishment given as

discipline. See Matter of Goude, 296 S.C. 510, 374 S.E.2d 496 (1988)(issuing a

public reprimand for public outburst and shouting following a trial). Even

where the attorney's disruptive behavior has been the abuse of a third party in

a deposition, the punishment has been no more severe than a public reprimand.

See Matter of Golden, 329 S.C. 335, 496 S.E.2d 619 (1998). Even with

Attorney's prior disciplinary problems, we conclude a public reprimand is the

appropriate sanction in this matter. We find the other recommendations are

reasonable in light of Attorney's medical condition.





II. THE MCCREIGHT MATTER

The Commission recommends that Attorney receive a one-year

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IN THE MATTER OF SMITH





suspension as punishment for his neglect of a client's case. We agree.







As this Court stated in Matter of Moore, 329 S.C. 294, 494 S.E.2d 804

(1997):

The appropriate sanction for neglect of several client matters

generally is a public reprimand provided the clients are not greatly

prejudiced. Matter of Alexander, 301 S.C. 212, 391 S.E.2d 254

(1990); Matter of Gates, 295 S.C. 516, 369 S.E.2d 841 (1988).

However, when the client is prejudiced and the attorney refused to

cooperate with the Board's investigation, the sanction imposed has

been as great as a one year suspension. See Matter of Acker, 308

S.C. 338, 417 S.E.2d 862 (1992) (six month suspension); Matter of

Palmer, 298 S.C. 324, 380 S.E.2d 813 (1989) (one year suspension);

Matter of Ballard, 312 S.C. 227, 439 S.E.2d 846 (1994) (one year

suspension).

In this matter, Attorney's behavior prejudiced McCreight's interests.

Furthermore, Attorney failed to make a scheduled meeting with an investigator

in the matter, claiming he overslept and had no transportation. In light of

Attorney's previous disciplinary record, a one-year suspension from the practice

of law is reasonable.





CONCLUSION

We agree with the :Commission's recommendation that Attorney's

suspension be made retroactive to the date he was placed on disability inactive

status. Furthermore, we agree with the restrictions recommended by the

Commission and direct that Attorney file with the Clerk medical statements

showing his ability to practice law and enter into some type of supervisory

relationship with another attorney for two years. As for the Commission's

recommendation that Attorney complete a LOMAP course, this program is no

longer offered. In its place, we direct that Attorney complete a similar program

to be fashioned by the South Carolina Bar and Disciplinary Counsel.





Since Attorney is still on disability inactive status, he must petition the

Court to have his status changed before the Committee on Character and

Fitness can consider an application for reinstatement. If Attorney files such a

petition within 30 days of this opinion, then the Court will direct that Attorney's

petition for removal from disability inactive status and his application for

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IN THE MATTER OF SMITH





reinstatement be considered together.





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