In the Matter of Frank Barnwell McMaster , 419 S.C. 37 ( 2017 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Frank Barnwell McMaster, Respondent.
Appellate Case No. 2016-001527
Opinion No. 27697
Heard November 30, 2016 – Filed January 11, 2017
DEFINITE SUSPENSION
Disciplinary Counsel Lesley M. Coggiola and Senior
Assistant Disciplinary Counsel Charlie Tex Davis,
Jr., both of Columbia, for Office of Disciplinary
Counsel.
Frank Barnwell McMaster, of West Columbia, pro se.
PER CURIAM: In this disciplinary matter, neither the Office of Disciplinary
Counsel ("ODC") nor respondent take exception to the Commission on Lawyer
Conduct Panel's ("Panel") recommendation that respondent be: suspended for
thirty months retroactive to March 2014; required to pay the costs of the
disciplinary proceedings; and required to comply with ongoing monitoring
conditions. We agree respondent committed misconduct, and accept the Panel's
recommendation.
FACTS
In 2013, respondent was arrested and charged with driving under the influence
("DUI"), first offense; failure to give or giving improper signal; and hit and run
involving property damage. He pleaded guilty to DUI and improper turn; the
remaining charge was dismissed. Respondent paid a fine.
Approximately one year later, respondent was arrested and charged with use of a
firearm while under the influence of alcohol or drugs; disorderly conduct; and
damaging/tampering with a vehicle. He pleaded guilty to unlawful carrying of a
pistol and again paid a fine. Shortly after his arrest for the second incident, this
Court placed respondent on interim suspension. See In re McMaster, 407 S.C.
213, 755 S.E.2d 107 (2014).
In November 2015, respondent and the ODC entered into a stipulation of facts,
followed by the filing of formal charges on February 1, 2016. The formal charges
assert respondent committed misconduct as defined in Rule 7(a), RLDE, and Rule
413, SCACR, by violating: (1) Rule 8.4(b) of the Rules of Professional Conduct,
Rule 407, SCACR, in that he committed criminal acts that reflect adversely on his
honesty, trustworthiness, or fitness as a lawyer; and (2) any other rule the Panel or
Court might deem violated by respondent's conduct. The stipulation of facts
provides:
(1) on April 29, 2013, respondent was arrested and
charged with DUI, first offense; failure to give or giving
improper signal; and hit and run with property damage,
resulting in respondent pleading guilty to DUI and
improper turn in December 2013;
(2) on February 20, 2014, respondent was arrested and
charged with use of a firearm while under the influence
of alcohol or drugs; disorderly conduct; and damaging or
tampering with a vehicle, resulting in respondent
pleading guilty to unlawful carrying of a pistol and
forfeiting bond on the disorderly conduct charge;
(3) Respondent submits the common thread in both
incidents was alcohol abuse induced by depression
associated with the dissolution of his marriage;
(4) Respondent sought help from a licensed physician
who monitored respondent tri-monthly, and who
submitted a letter dated March 4, 2015, addressed to
respondent's attorney stating respondent is mentally and
physically sound to practice law;
(5) In January 2015, Respondent signed a two year
monitoring agreement with Lawyers Helping Lawyers
requiring he remain alcohol-free and actively participate
in Alcoholics Anonymous by attending at least two
meetings per week; by all accounts respondent has
complied with the agreement;
(6) Respondent completed an evaluation at Carolina
Psychiatric Services involving a Structured Diagnostic
Interview and a psychiatric evaluation; the doctors
completing both evaluations offered their professional
opinion that respondent is capable of returning to the
practice of law if he remains in treatment and maintains
sobriety; and
(7) Respondent has no prior disciplinary issues prior to
the aforementioned incidents, and submits he "deeply
regrets" his conduct and is ashamed of it.
In April 2016, the Panel conducted an evidentiary hearing where respondent
pledged his continued commitment to sobriety, rehabilitation, and the profession.
The Panel's report noted aggravating and mitigating factors it considered, and
recommended sanctions for respondent. As to aggravating factors, the Panel noted
respondent engaged in illegal conduct. As to mitigating factors, the Panel noted:
the absence of a prior disciplinary record; respondent's "full and free disclosure and
cooperative attitude" in the disciplinary proceedings; and respondent's depression
and dependency on alcohol. The Panel then recommended respondent: (1) be
suspended from the practice of law for a period of thirty months, retroactive to the
commencement of his interim suspension—March 4, 2014; (2) pay the costs of the
disciplinary proceedings;1 (3) complete the Legal Ethics and Practice Program
Ethics School prior to reinstatement; (4) enter into another two year contract with
Lawyers Helping Lawyers;2 (5) continue treatment with his psychiatrist for a
1
The costs of the disciplinary proceedings total: $402.20.
2
The recommendation further requests Lawyers Helping Lawyers file quarterly
period of two years;3 and (6) continue treatment with his medical provider for his
depression and anxiety for a period of two years.4 Neither the ODC nor respondent
take exception to the Panel's recommendations.
ANALYSIS
The decision to discipline an attorney is within the sound discretion of the Court.
In re White, 391 S.C. 581, 587, 707 S.E.2d 411, 414 (2011) (citation omitted).
This Court "may accept, reject, or modify in whole or in part the findings,
conclusions[,] and recommendations of the Commission [on Lawyer Conduct]."
Rule 27(e)(2), RLDE; Rule 413, SCACR. "Although this Court is not bound by
the findings of the Panel and Committee, these findings are entitled to great
weight, . . ." In re Marshall, 331 S.C. 514, 519, 498 S.E.2d 869, 871 (1998) (citing
In re Yarborough, 327 S.C. 161, 165, 488 S.E.2d 871, 873 (1997)). "The 'central
purpose of the disciplinary process is to protect the public from unscrupulous and
indifferent lawyers.'" In re Brown, 361 S.C. 347, 355, 605 S.E.2d 509, 513 (2004)
(per curiam) (quoting In re Hall, 333 S.C. 247, 251, 509 S.E.2d 266, 268 (1998)
(per curiam)). "The primary purpose of . . . suspension is the removal of an unfit
person from the profession for the protection of the courts and the public, not
punishment of the offending attorney." In re Brooks, 324 S.C. 105, 108, 477
S.E.2d 98, 99 (1996) (per curiam) (citations omitted).
We find the Panel's recommendations are appropriate, and, therefore, suspend
respondent for thirty months retroactive to March 4, 2014, require respondent to
pay the costs of the disciplinary proceedings, and adopt the Panel's
recommendations as to ongoing monitoring of respondent's condition. See In re
Marshall, 331 S.C. at 519, 498 S.E.2d at 871; cf. In re Johnson, 386 S.C. 550, 560,
689 S.E.2d 623, 629 (2010) (citing as a mitigating factor respondent's lack of prior
reports with the Commission during the two year contract period addressing
respondent's compliance.
3
The recommendation further requests the psychiatrist file quarterly reports with
the Commission during the two year monitoring period addressing respondent's
progress and compliance with his treatment plan.
4
The recommendation further requests the medical provider file quarterly reports
with the Commission during the two year monitoring period addressing
respondent's progress and compliance with his treatment plan.
disciplinary history); In re Woodruff, 313 S.C. 378, 380, 438 S.E.2d 227, 228
(1993) ("While substance abuse is not a mitigating factor in attorney discipline
matters, it is a factor in determining the appropriate sanction" (citation omitted)).
We further caution respondent that pursuant to Rule 410, SCACR, he is required to
ensure his contact information in the Attorney Information System ("AIS") is
current and accurate, and failure to do so may result in his being held in contempt
of court. See Rule 410(g), SCACR ("Persons admitted to the practice of law in
South Carolina shall have a continuing duty to verify and update their information
in the AIS, and must ensure that the AIS information is current and accurate at all
times. At a minimum, the contact information must include a mailing address, an
e-mail address and a telephone number. Members must update their contact
information within five (5) days of any change"); see also In re Collie, 406 S.C.
181, 749 S.E.2d 522 (2013) (placing a respondent on interim suspension for failure
to follow the Court's directive to maintain current and accurate contact information
in the AIS).
DEFINITE SUSPENSION.
BEATTY, C.J., KITTREDGE, HEARN, FEW, JJ., and Acting Justice Costa
M. Pleicones, concur.