Ethics Opinions Every South Carolina Attorney Should Know: Part IV, Incivility

Posted Thursday, June 10th, 2010 by Gregory Forman
Filed under Of Interest to Family Law Attorneys, Rules of Professional (Lawyer) Conduct, South Carolina Specific

With one exception, I am always saddened when an attorney I know is disciplined or suspended from the practice of law, even if the attorney is one I don’t particularly like.  In that one exception the attorney’s suspension from the practice of law, and his ultimate indefinite suspension, caused me tremendous relief.

At the time of this attorney’s 2000 suspension I had been litigating what was only my second case against him for exactly ten days and he was making me miserable.  I had taken over representation from a previous attorney with the understanding that this opposing counsel believed discovery had not been complied with and that my client was in violation of court order.  I immediately contacted this attorney in an attempt to resolve the matter amicably only to be told he was setting depositions immediately and wanting to know my availability eleven days hence.  I informed him that his proposed date was not convenient and suggested other dates.  I further suggested that giving me time to familiarize myself with the file and address his discovery and compliance demands might help move the case towards resolution.  This attorney made no attempt to be accommodating and threatened to schedule the depositions for the inconvenient date despite my request, telling me I needed to file a motion for a protective order if I didn’t like it.  He was one of the few attorneys to demand I provide him my order of protection when I informed him I was protected on a date he wanted to notice depositions (I perceive such verification requests as accusing the other attorney of lying).

I recall the next ten days as a flurry of pointless demands, most of which focused upon minutia and kept either of us from narrowing the issues or resolving the dispute.  And then–from my perspective, almost miraculously–he was suspended, new counsel was retained, we had a friendly settlement conference and the case settled with my client having to pay me twice the fees that would have been required had his wife’s new counsel been her only counsel but probably one-tenth the fees he would have incurred has this attorney remained her attorney.

There was a 44 month gap between this attorney’s suspension and the disciplinary opinion that indefinitely suspended him–the longest such gap in my recollection.  The Supreme Court opinion in In Re Norfleet, 358 S.C. 39, 595 S.E.2d 243 (2004), presents a taste of the behavior that my limited experience had found so frustrating.  In addition to being disciplined for trust account violations, failing to pay a court reporter for a transcript, failing to file a notice of appeal, and failing to respond to the Commission on Lawyer Conduct, he was also disciplined for what the Supreme Court labeled “Unprofessional Conduct” (emphasis in original) to wit:

Mary Paige Stroud was enrolled at Hilton Head Elementary School. Gretchen Keefner, a principal at the school, testified Respondent unexpectedly came to the school and requested to view Paige’s school records and visit with her. Keefner testified Respondent did not present any identification and was dressed in casual attire. Keefner further testified Respondent became verbally abusive when she refused him access to her file. Specifically, Keefner testified Respondent threatened to sue her personally and have her fired if she did not turn over the file.

When Respondent became agitated, Keefner requested the presence of her supervisor, Henry Noble. Noble testified Respondent was dressed in “beach attire” and was very angry, loud, and threatening. Noble retrieved Paige’s file for Respondent’s review. Noble testified Respondent became “furious” when he found documents on which Paige had signed her name as “Paige Read” instead of “Paige Stroud.”

Additionally, Sheryl B. Keating, a counselor at Coastal Empire Community Health Center on Hilton Head Island, testified that during two or three conversations with Respondent, he became angry and threatening when Keating refused to provide him with confidential information relating to her counseling sessions with Paige Stroud and her mother.

Despite Respondent’s denial of these allegations, the subpanel determined that clear and convincing evidence weighed in favor of Keefner, Noble, and Keating and that the allegations regarding Respondent’s conduct toward them were proven.

Id., 358 S.C. at 44-45.

There are stories, perhaps apocryphal, that this attorney used to research when opposing attorneys had court scheduled and would attempt to notice depositions or hearings at times these attorneys were already scheduled elsewhere.  He would then, allegedly, tell these attorneys they needed to seek protective orders if they wanted his deposition or hearing rescheduled.  I have dealt with other attorneys who have been frustratingly zealous, even overzealous, in their representation but only this attorney and one other attorney (who shall remain nameless) ever made me believe that they thought that the path to success was achieved by making the opposing party’s and attorney’s life as miserable and difficult as possible. Before this attorney can petition for reinstatement,  he “must show he… has received counseling in appropriate conduct towards clients and others.”

I love practicing law in South Carolina because, compared to other jurisdictions I have practiced in or observed lawyers practicing, the bar here is so collegial.  Attorneys will routinely inform opposing attorneys of fixable defects in their paperwork to help move the case forward and help that counsel avoid public embarrassment.  The grooming of newly-admitted attorneys is based less on the exploitation of inexpensive labor and more on the desire to introduce new lawyers to standards of professionalism.  Attorneys who move here from other states comment on how willing South Carolina lawyers are to send them overflow work without seeking anything in return.  Our Court of Appeals judges come down from the bench to shake the hands of appellate counsel at the conclusion of oral argument in a lovely gesture of humility and collegiality.

The desire to protect what is wonderful about the practice of law here requires that attorneys who go out of their way to make everyone miserable need to be culled from the bar.  The lesson of Norfleet: don’t be an a**hole.

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