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25172 - In the Matter of Moore
In the Matter of Moore


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


THE STATE OF SOUTH CAROLINA

In The Supreme Court



In the Matter of Fred

Henderson Moore, Respondent.



Opinion No. 25172

Heard May 23, 2000 - Filed July 17, 2000



DISBARRED



Russell Brown, of Charleston, for respondent.



Assistant Deputy Attorney General J. Emory Smith,

Jr., of Columbia, for the Office of Disciplinary

Counsel.





PER CURIAM: In this attorney grievance matter, respondent

committed misconduct relating to his escrow account and failed to timely

pay a medical provider.







FACTS



Respondent had an agreement with Dr. Themy Chakeris whereby

respondent would send clients to Dr. Chakeris and respondent would pay .

their medical bills upon settlement of their legal actions. The Panel 1 found

respondent had failed to pay Dr. Chakeris a total of $35,750 from fifty-four

settlements. 2 When Dr. Chakeris demanded payment, respondent did not




1 The full Panel adopted the Sub-panel's report on December 24, 1999.







2 Dr. Chakeris's attorney testified that respondent has since paid Dr.

Chakeris all that is owed to him. In fact, the final payment was received the (2 continued....)



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In the Matter of Moore





have the funds in his escrow account to pay him. Respondent eventually

paid Dr. Chakeris through installments. The Panel also found respondent

disbursed money to himself on many occasions from his escrow account. The

canceled checks did not have notations on them. Respondent claimed that

the disbursements were attorney's fees and also some of his own personal

money. He testified that he had deposited proceeds from the sale of some of

his property and had intended to make payments to his ex-wife through his

escrow account so that he would have some documentation of the payments.







Respondent testified his escrow account problems stemmed from

forgeries and embezzlement of the escrow account by a former law partner.

The Panel found respondent had failed to prove the allegations of

embezzlement were the cause of respondent's failure to pay Dr. Chakeris or

properly maintain his escrow account. Further, the Panel found if the

embezzlement involved only attorney's fees, as respondent testified, then the

money from the settlements which should have been paid to Dr. Chakeris

would have been in the escrow account. The Panel found respondent lacks

an appreciation of the duties and responsibilities associated with keeping an

escrow account and recommended disbarment.







There is also a procedural issue which the Office of Disciplinary

Counsel (ODC) has raised. The initial complaint was filed on January 30,

1998. Respondent filed an answer on March 4, 1998. A supplemental

complaint was filed on July 24, 1998. Respondent failed to answer and the

ODC filed an affidavit of default on the supplemental charges on September

14, 1998. On September 18, 1998, respondent filed an answer denying the

allegations. At the Panel hearing held on October 7, 1999, respondent

moved to be allowed to answer and not be deemed in default. The Panel

ruled that respondent should be allowed to answer. The hearing then began

but only the allegations in the initial complaint were tried because the ODC

did not bring its witnesses for the allegations in the supplemental complaint.

After the hearing, the Panel issued a written report on March 3, 1999,

granting respondent's request to file an untimely answer and explaining its

reasons for allowing respondent to answer. 3 The ODC filed an exception to




(2 continued...)day of the Panel hearing.





3 The Panel did not want to punish respondent for what it viewed as

respondent's attorney's negligence in failing to timely answer and the fact

that the ODC was not prejudiced by allowing respondent to answer.



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In the Matter of Moore





the Panel's failure to hold respondent in default. The ODC wants us to

decide if a respondent can be allowed to file an answer after the time to

answer has expired.







DISCUSSION



We may make our own findings of fact and conclusions of law and are

not bound by the Panel's recommendation. Burns v. Clayton, 237 S.C. 316,

117 S.E.2d 300 (1960). While we are not bound by the findings of the Panel,

their findings are entitled to great weight. Id. We must administer the

sanction we deem appropriate after a thorough review of the record. In re

Kirven, 267 S.C. 669, 230 S.E.2d 899 (1976).







In the matter of improperly using his trust account and insufficient

recordkeeping, we find respondent violated Rule 1.15, of Rule 407, SCACR,

by commingling funds and using the trust account for personal purposes and

Rule 417, SCACR, by failing to maintain trust account records. Respondent

contends that since Rule 417, was not adopted until January 1, 1997, after

respondent's misconduct, he could not have violated that rule. 4 We disagree.

Respondent testified that he wrote checks out of his escrow account in

February 1997 for personal reasons and without notations on them. 5

Clearly, respondent violated Rule 417 after it was enacted. 6







We recently held that "[w]hen disciplinary counsel presents clear and

convincing evidence of trust account violations or other inadequate




4 Under Rule 417, effective January 1, 1997, a lawyer must keep

adequate records showing the date, source or payee, and description of each

deposit and disbursement in any bank account which affects the lawyer's

practice of law.







5 The misconduct involving the failure to pay Dr. Chakeris took place

prior to January 1, 1997.







6 We recently held that an attorney has always been charged with a

special responsibility in maintaining and preserving the integrity of trust

funds. In re Miles, 335 S.C. 242, 516 S.E.2d 661(1999) (definite suspension

for six months for failing to timely pay medical provider) (citing In re

Padgett, 290 S.C. 209, 349 S.E.2d 338 (1986) (suspending attorney who

failed to maintain adequate records in a single case)).



p.420


In the Matter of Moore





recordkeeping, a lawyer's records must be sufficiently detailed to overcome

the allegations." Miles, 516 S.E.2d at 663. Here, respondent has failed to

show adequate recordkeeping to overcome the ODC's allegations. As noted

by the Panel, the allegations of forgery and embezzlement would not explain

respondent's failure to keep proper records and documentation, to make

notations on the checks, or to pay Dr. Chakeris.







As for the default issue raised by the ODC, we hold the Panel has the

authority to allow a respondent to answer even though the time to answer

has expired. Rule 23, RLDE, provides "[t]he respondent shall file a written

answer with the Commission and serve a copy on disciplinary counsel within

30 days after service of the formal charges, unless the time is extended by

the hearing panel." The ODC contends that upon the expiration of the thirty

days, there is no authority for an extension. We disagree.







The hearing Panel has the authority pursuant to Rule 9, RLDE, which

states "the South Carolina Rules of Civil Procedure apply in lawyer

discipline and incapacity cases." Rule 55(c), SCRCP, provides that "[f]or good

cause shown the court may set aside an entry of default and, if a judgement

by default has been entered, may likewise set it aside in accordance with

Rule 60(b)." The standard for setting aside an entry of default is whether

"good cause" exists under Rule 55(c), whereas the standard to set aside a

judgment of default is "excusable neglect" under Rule 60(b). 7







The Supplemental Complaint was filed on July 29, 1998. Respondent

did not timely answer. At the Panel hearing on October 7, 1998, respondent

moved to be allowed to answer which is well within the year time limit of

Rule 60. Accordingly, we hold the Panel had the authority to allow

respondent to answer and the Supplemental Complaint should now go

forward.







Respondent has an extensive prior disciplinary record: private

reprimand on May 5, 1972; public reprimand on September 4, 1980, for

neglect of several legal matters; indefinite suspension on January 24, 1984,

for trust account violations; suspension February 2, 1994, for failure to pay

bar fees; private reprimand on October 31, 1995; suspension on February 9,




7 We note Rule 55(c), SCRCP, should be liberally construed so as to

promote justice and dispose of cases on the merits. In re Estate of Weeks,

329 S.C..251, 495 S.E.2d 454 (Ct. App. 1997).



p.421


In the Matter of Moore





1994, for failure to meet CLE requirements; and definite suspension for one

year on December 16, 1997, for incompetence and neglect. Accordingly,

respondent is hereby disbarred for his misconduct. Within fifteen days of the

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

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



DISBARRED.



s/ Jean H. Toal C.J.

s/ James E. Moore J.

s/ John H. Waller, Jr. J.

s/ E.C. Burnett, III J.

s/ L. Henry McKellar A. J.





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