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25157 - In the Matter of Adams
In the Matter of Adams


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


THE STATE OF SOUTH CAROLINA



In The Supreme Court





In the Matter of

David M. Adams, Respondent.



Opinion No: 25157

Heard May 23, 2000 - Filed June 26, 2000



DISBARRED



Attorney General Charles M. Condon and Senior Assistant Attorney

General James G. Bogle, Jr., for Office of Disciplinary Counsel.



Desa A. Ballard, of West Columbia, for respondent.







PER CURIAM: In this attorney grievance matter, David M. Adams

("Adams") is charged with violating various provisions of the Rules of

Professional Conduct contained in Rule 407, SCACR, and the Rules for Lawyer

Disciplinary Enforcement ("RLDE") contained in Rule 413, SCACR. The Full

Panel recommended disbarment pursuant to Rule 7(b)(1), RLDE. We agree

with the Full Panel's recommendation and disbar Adams from the practice of

law.









FACTS/PROCEDURAL BACKGROUND



Adams is an attorney, formerly licensed to practice law by this Court, who

maintained a law practice in Charleston, South Carolina. On December 29,

1998, this Court placed Adams' license on Interim Suspension based upon

several acts of misconduct. A brief outline of Adams' misconduct as determined

by the Full Panel is as follows:



1. The Sandra K. Livingston/Shirrese B. Brockington Matter:



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In the Matter of Adams





In the summer of 1998, Sandra K. Livingston ("Livingston") was

appointed Personal Representative of her father's estate.

Livingston hired Adams to be her attorney and/or the attorney for

the estate. Her father's construction company was auctioned and

the net proceeds ($116,985.00) were placed in Adams' escrow

account. Some of the auctioned items were titled vehicles with

outstanding liens. Adams did not forward any money to Farmers

and Merchants Bank to release the liens, nor did Adams forward to

the Personal. Representative or the estate the balance of

approximately $39,890.00 for unencumbered assets. He wrote

approximately fifteen checks, using money from the Livingston

estate, to persons or entities other than his client, the Livingston

estate account, or Farmers and Merchants Bank.



2. The Wachovia Check Matters: Adams used operating account

funds to satisfy a trust obligation in the Livingston matter in

violation of Rule 1.5 (safekeeping of funds and commingling of

funds). Adams also violated Rule 1.15 by writing an escrow account

check in the Livingston matter because the Livingston funds had

long since vanished from the escrow account. The check, therefore,

used funds from clients other than the Livingston estate.



3. The Welch Misappropriation: A $33,640.17 deposit was made

into Adams' escrow account for the Welch estate. Adams' account

balance dropped to $5.52. All subsequent Welch disbursements

were made with misappropriated funds.



4. The Reynolds Misappropriation: Adams represented Joseph

William Reynolds regarding his mother's estate. The net proceeds

from the sale of the Reynolds' home were placed in Adams' escrow

account. Adams wrote a check with partial disbursement to Mr.

Reynolds, and partial disbursement to himself. He also wrote

several checks using the money from the Reynolds' estate payable

to the South Carolina Department, of Revenue Estate Tax Division

for the estate taxes of another client. Disbursements regarding the

Reynolds' estate came from other client funds, including a

$3,055.05 check made payable to the South Carolina Department

of Revenue and Taxation.



5. The Internal Revenue Service Matter: Adams failed to pay



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In the Matter of Adams





federal income taxes, or filed late tax returns for 1989, 1990, and

1991. He failed to file federal tax returns for 1994,1995, and 1996.

The Internal Revenue Service seized Adams' home on Kiawah

Island. Adams borrowed $30,000.00 from Blyth Bullock to redeem

his residence: When Adams repaid Ms. Bullock, he used another

client's funds.



6. The Barbara Oree Matter: Adams failed to keep Ms. Oree

informed as to the progress of her case, failed to return her phone

calls, and failed to respond to requests for information. He took

little or no action for the benefit of the estate. Ms. Oree receive a

Summons from the Probate Court for contempt for not closing the

estate in a timely manner.



7. The Burk Y. Herrin, Jr. Matter: Adams was hired to reopen the

Herrin estate. Adams misappropriated approximately $3,449.38

in the Herrin matter. He also failed to recover 42 shares of stock,

and did not supply information to Herrin as to the status of his

stock.



8. The Michael Arnau Matter: Adams was hired to represent

Michael Arnau ("Arnau") in a dispute with the IRS over unpaid

employment taxes. Adams failed to take any action on the case for

over a year, failed to communicate with Arnau on numerous

occasions, and failed to respond to inquires as to the status of the

case. Adams cannot find the bulk of the Arnau file.



9. The Patricia O. DeTreville Matter: Adams misappropriated

$68,919.38 from the DeTreville estate. Ms. DeTreville closed out

two estate accounts and provided them to Adams for deposit into

his escrow account in order to make final disbursement to the heirs.

Adams received $71,155.79 on behalf of the estate. Funds disbursed

or expended on behalf of the estate totaled approximately

$2,236.41. Adams' escrow account went to a negative balance on

October 8,1998; and therefore $68,919.38 was misappropriated by

Adams, or. applied to uses other than those for which it was

intended.



10. The Frank Woolbright Matter: Frank Woolbright hired Adams

to represent him in an estate matter and a Common Pleas matter.



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In the Matter of Adams





Adams failed to communicate with his client concerning both

matters. Mr. Woolbright received a letter from the Charleston

probate court threatening to rule Mr. Woolbright in contempt for

failing to file a number of documents in the estate. Adams also

neglected the Common Pleas matter by failing to respond to

discovery, and not attending both the September 10, 1998 and

September 16, 1998 hearings.



11. The Jeannette S. Wood Matter: On December 18, 1997, some

real estate was sold for $19,000 pursuant to an estate matter. A

check was issued to Adams for $17,135.58 as a result of the sale.

Adams misappropriated funds due and owing to Jeannette S. Wood,

as Personal Representative, or due and owing to the Estate of

George Farago. Roper Hospital was supposed to receive some of

the proceeds from the real estate sale. Neither Roper Hospital, its

attorney, nor the Personal Representative has received any of the

proceeds from the real estate sale on December 18, 1997.



12. Escrow Account Violations: Adams failed to comply with Rule

417, SCACR, including: a failure to maintain receipt and

disbursement journals specifically identifying the date, source, and

description of each item deposited; a failure to maintain accurate

ledger methods; failure to maintain copies of accountings and

disbursements; failure to sufficiently detail the identity of each

item of the receipt and records of deposit; and using an escrow

account check to meet payroll.



13. Failure to Respond to Disciplinary Authority: Adams failed

to reply to the Notice of Full Investigation and to several letters of

inquiry by the Commission on Lawyer Conduct, including letters

regarding the following cases: the Barbara Oree matter, the Burk

Y. Herrin Jr. matter, and,the Edward K. Pritchard, III matter.

Adams did respond late to the Third Notice of Full Investigation,

but he did not accurately address all issues contained in the Notice

of Full Investigation.



14. The Full Panel found Adams misappropriated approximately $280,

196.44 from his clients. Although some of his clients in these

matters have been fully compensated, $280,196.44 is the total

amount of money that was mishandled, misappropriated, or used



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In the Matter of Adams





for an improper purpose.







On March 4, 1999, Adams was served with a Notice of Filing of Formal

Charges by the Commission on Lawyer Conduct ("Commission"). He did not file

an Answer to the Formal Charges within the thirty days required by Rule 413,

SCACR. The Commission filed an Affidavit of Default on April 12, 1999. On

June 4, 1999, Adams was served with a Notice of Filing of Second Formal

Charges. He did not file an Answer and an Affidavit of Default was filed on

July 20, 1999.







On July 28, 1999, a Subpanel hearing-was held. Adams did not appear,

but was represented by counsel, Desa Ballard ("Ballard"), of West Columbia.

Ballard requested a continuance based upon health problems associated with

Adams' prostate cancer. We agree with the Subpanel's denial of Adam's request

for continuance based on the reasons cited below. The Subpanel denied the

request for a continuance, and the companion Motion to Vacate the default

based on the following reasons: (1) Adams elected not to appear at the hearing

on his own volition because he faxed an affidavit from his employment in

Maryland, where he was apparently working on the day of the hearing; (2) the

case had been going on for some time; (3) Adams chose not to reply to the

inquiries of the Commission of Lawyer Conduct; and (4) these appear to be

willful refusals to cooperate. The Subpanel did not find the medical evidence

indicated Adams' health condition rendered him unable to cooperate with the

Commission and attend the hearing.







The Subpanel recommended: (1) Adam be disbarred on the day of the

Court's opinion in this case; (2) he be required to pay all costs incurred by the

Commission in connection with this matter ($343.08); and (3) this Court order

immediate restitution to all persons financially injured, repayment of unearned

or inequitable costs, and reimbursement to any claims made against the

Lawyer's Fund for Client Protection, as authorized by Rule 7(b)(7) of Rule 413.









On November 29, 1999, Adams filed seven exceptions to the subpanel

report pursuant to Rule 26(c)(7), RLDE. The prosecutor filed a response to his

exceptions on December 3,1999. On January 21, 2000, the Full Panel adopted

the Subpanel's report.







CONCLUSION



By his conduct, Adams has violated several of the Rules of Professional



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In the Matter of Adams





Conduct and Rules for. Lawyer Disciplinary Enforcement. The .evidence

overwhelmingly demonstrates a pattern of misappropriation of client funds,

commingling of client money, neglect of legal matters, and other misconduct.

The Subpanel found Adams engaged in the following acts of misconduct: (1)

misappropriation of approximately $280,196.44; (2) failure to pay federal

income taxes, or filed late tax returns for 1989, 1990, and 1991, and failure to

file federal tax returns for 1994; 1995, and 1996; (3) willful failure to respond

to a lawful demand from a Disciplinary Authority, Rule 7(a)(3), RLDE; (4)

conduct tending to pollute the administration of justice or bring the legal

profession into disrepute or demonstrate an unfitness to practice law, Rule

7(a)(5), RLDE; (5) violating the oath of office taken upon the admission to

practice law in this state, Rule 7(a)(6), RLDE; and (6) violating specific Rules

of Professional Conduct, including Rule 1.1 (competence), Rule 1.3 (diligence);

Rule 1.4 (communication), Rule 1.15 (safekeeping of property), and Rule 8.4 (all

subsections of misconduct).







This Court has the sole authority to discipline attorneys and to decide the

appropriate sanction. Matter of Holt, 317 S.C. 48, 451 S.E.2d 884 (1994). While

this Court may draw its own conclusions and make its own findings in an

attorney disciplinary matter, the unanimous findings and conclusions of the

Full Parcel are entitled to much respect and consideration. Matter of Larkin,

336 S.C. 366, 520 S.E.2d 804 (1999). The Commission recommends disbarment,

as provided for in Rule 7(b)(1), RLDE. Based on the egregious nature of Adams'

conduct and his outrageous pattern of misappropriation, we agree with the

Commission's recommendation.







Disbarment in this case is neither excessive nor disproportionate to

sanctions imposed by this Court in similar cases involving misappropriation,

neglect, and other similar acts of misconduct. See, e.g., Matter of Driggers, 334

S.C. 40, 512 S.E.2d 112 (1999) (attorney disbarred for failing to provide

competent representation, keep clients informed, consult with clients, promptly

account for and deliver funds and documents, misappropriation of funds, and

knowing failure to respond to disciplinary proceedings); Matter of Godbold, 336

S.C. 568, 521 S.E.2d 160 (1999) (attorney disbarred for failing to remit

settlement funds to clients, remit funds to clients' medical providers, failing to

pay bills, and failing to file state and federal tax returns); Matter of Glee, 333

S.C. 9, 507 S.E.2d 326 (1998) (attorney disbarred for converting client funds for

his own purposes; failing to provide competent representation, failing to comply

with demand for payment, failing to act with reasonable diligence, failing to

keep client informed about status of case, being dilatory in winding up and



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In the Matter of Adams





closing a probate action, and engaging in conduct involving dishonesty); Matter

of Hunter, 331 S.C. 58, 503 S.E.2d 464 (1998) (attorney disbarred for

misappropriating client funds and converting these funds for his own gain,

failing to act with reasonable diligence, and engaging in morally reprehensible

conduct); Matter of Edwards, 323 S.C. 3, 448 S.E.2d 547 (1994) (attorney

disbarred for failing to keep clients informed, misappropriating or improperly

using client funds, knowingly presenting false testimony; and in failing to

cooperate in investigation of disciplinary charges against him).







Accordingly, we hereby DISBAR Adams, effective on the date of the filing

of this order. We order Adams to pay all costs incurred by the Commission in

connection with this matter. We also order Adams, pursuant to Rule 7(b)(7),

SCACR, to make complete restitution immediately to all parties whose funds

were misappropriated, including, but not limited to, clients, health care

providers, and financial institutions. To the extent financial institutions, client

security funds, or any other source paid restitution on account of Adams'

misappropriation, Adams shall make complete restitution. Within fifteen days

of the date of this opinion, Adams shall file an affidavit with the Clerk of Court

showing that he has complied with Rule 30, RLDE, Rule 413, SCACR.





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