In the Matter of Rosalee Hix Davis , 415 S.C. 449 ( 2016 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Rosalee Hix Davis, Respondent.
Appellate Case No. 2015-002596
Opinion No. 27611
Submitted February 2, 2016 – Filed March 9, 2016
DEFINITE SUSPENSION
Lesley M. Coggiola, Disciplinary Counsel, and Ericka M.
Williams, Assistant Disciplinary Counsel, both of
Columbia, for Office of Disciplinary Counsel.
Elizabeth Ann Hyatt, Esquire, of Hyatt Law, LLC, of
Lancaster, for Respondent.
PER CURIAM: In this attorney disciplinary matter, respondent and the Office
of Disciplinary Counsel (ODC) have entered into an Agreement for Discipline by
Consent (Agreement) pursuant to Rule 21 of the Rules for Lawyer Disciplinary
Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court
Rules (SCACR). In the Agreement, respondent admits misconduct and consents to
the imposition of a public reprimand or definite suspension not to exceed three (3)
years with conditions. Respondent requests that any suspension be imposed
retroactively to May 3, 2013, the date she was transferred to incapacity inactive
status. In the Matter of Davis, 403 S.C. 370, 744 S.E.2d 502 (2013). We accept
the Agreement and suspend respondent from the practice of law in this state for
two (2) years, not retroactively to the date of her transfer to incapacity inactive
status. In addition, we impose the conditions set forth hereafter in this opinion.
The facts, as set forth in the Agreement, are as follows.
Facts
Matter I
Respondent was retained to represent Client A in a domestic matter. Client A
requested her file from respondent. Respondent failed to deliver the file as
requested and failed to provide Client A with a copy of the final order of divorce
that required Client A to pay child support.
Matter II
On April 10, 2012, respondent was retained to represent Client B in a domestic
matter. Following a hearing, respondent advised Client B to file an appeal of the
court's ruling. Client B signed a new representation agreement with respondent on
July 13, 2012, for representation on a motion for reconsideration and an appeal.
Respondent was paid an additional $2,500.00 for the new representation.
Respondent failed to file an appeal on behalf of Client B. Due to respondent's
failure to timely file the appeal, Client B lost his right to an appeal. Respondent
failed to keep Client B informed of the status of the appeal and failed to respond to
Client B's numerous telephone calls, texts, and emails regarding Client B's case.
Respondent admits she failed to withdraw from the representation of Client B
when respondent's physical and/or mental condition materially impaired
respondent's ability to represent Client B. Respondent failed to refund the advance
payment of fees that had not been earned by respondent. In addition, respondent
also failed to retain the unearned fees in her trust account.
On January 15, 2013, respondent was mailed a Notice of Investigation requesting a
response to the complaint within fifteen days. When no response was received,
respondent was served with a letter pursuant to In the Matter of Treacy, 277 S.C.
514, 290 S.E.2d 240 (1982), again requesting a response. Respondent failed to
respond to the Treacy letter or Notice of Investigation. Respondent did appear
before a representative of the ODC and gave testimony regarding the allegations in
this matter.
Matter III
On October 29, 2012, respondent was retained to represent Client C and her
husband with a time sensitive domestic matter. Respondent was paid $1,500.00 for
the representation. Respondent informed Client C that she would have an
emergency custody order signed by the judge by the end of that week.
After no further communication with respondent, Client C called respondent on
November 6 and November 7, 2012, and every other day thereafter. Client C
received no response or telephone calls from respondent. Client C sent respondent
an email on November 12, 2012, requesting an update. Respondent responded that
a hearing would take place Thursday or Friday of that week. Respondent made no
further contact with Client C and she failed to return Client C's numerous
telephone calls.
Respondent admits she failed to withdraw from representation of Client C and her
spouse when respondent's physical and/or mental condition materially impaired
respondent's ability to represent them. Respondent failed to refund the advance
payment of fees that she had not earned. In addition, respondent failed to retain the
unearned fees in her trust account.
On January 7, 2013, respondent was mailed a Notice of Investigation requesting a
response to the complaint within fifteen days. When no response was received,
respondent was served with a letter pursuant to In the Matter of Treacy, id., again
requesting respondent's response. Respondent did not respond to the Treacy letter
or to the Notice of Investigation. Respondent did appear before a representative of
ODC and gave testimony regarding these allegations.
Matter IV
On August 28, 2012, Client D retained respondent for representation on a domestic
matter. Respondent was paid $1,500.00 for the representation. Respondent
informed Client D that she would be entitled to an expedited hearing due to the
affidavit that Client D provided.
Despite numerous telephone calls, emails, and text messages to respondent
regarding the status of the hearing, respondent did not respond to Client D until
September 27, 2012. During that communication, respondent informed Client D
that the judge needed an affidavit from Client D indicating why an emergency
hearing was needed. Client D immediately prepared the affidavit and submitted it
to respondent.
A hearing was held on October 18, 2012. The judge requested additional
information from respondent/Client D before finalizing the order. Client D
provided the additional information to respondent that same day. On October 22,
2012, respondent informed Client D that the order would be typed and sent to
judge to sign that same week. After repeated attempts to contact respondent
between October 25, 2012 and December 4, 2012, respondent finally responded to
Client D on December 4, 2012 and indicated that she was trying to get the order to
the judge for a signature. Client D again attempted to contact respondent several
times between December 10, 2012 and December 21, 2012, but received no
response. On December 27, 2012, Client D learned from the clerk of court's office
that an order of dismissal had been signed on Client D's case. The order stated that
the case was dismissed due to respondent's refusal to present an order to the judge
after numerous requests from the court.
Respondent admits she failed to withdraw from representation of Client D when
respondent's physical and/or mental condition materially impaired respondent's
ability to represent Client D.
On February 15, 2013, respondent was mailed a Notice of Investigation requesting
a response to the complaint within fifteen days. When no response was received,
respondent was served with a letter pursuant to In the Matter of Treacy, id., again
requesting respondent's response. Respondent failed to respond to the Treacy letter
or to the Notice of Investigation. Respondent did appear before a representative of
ODC and gave testimony regarding these allegations.
Matter V
On June 6, 2012, respondent was retained to represent Client E in a domestic
matter. Respondent was paid $1,675.00 for the representation. After an expedited
hearing, respondent informed Client E that they would be back in court by the end
of August 2012.
Despite several emails, telephone calls, and text messages, Client E received very
little response from respondent. On January 21, 2013, Client E sent respondent a
letter by email requesting a refund of her retainer. The letter was also mailed to
respondent by certified mail. Respondent failed to respond to Client E's letter or to
communicate with Client E in any matter.
Respondent admits she failed to withdraw from representation of Client E when
respondent's physical and/or mental condition materially impaired respondent's
ability to represent Client E. Respondent failed to refund the advance payment of
fees that had not been earned. In addition, respondent also failed to retain the
unearned fees in her trust account.
On February 15, 2013, respondent was mailed a Notice of Investigation requesting
a response to the complaint within fifteen days. When no response was received,
respondent was served with a letter pursuant to In the Matter of Treacy, id., again
requesting respondent's response. Respondent failed to respond to the Treacy letter
or to the Notice of Investigation. Respondent did appear before a representative of
ODC and gave testimony regarding these allegations.
Matter VI
In September of 2008, respondent's firm was retained to represent Client F in a
probate matter. Respondent was the attorney assigned to represent Client F. When
respondent left the firm in December 2011, the firm issued Client F a refund of his
unused retainer fee in the amount of $996.78. Client F paid the entire amount of
$996.78 to respondent to continue the representation.
Client F was unable to locate or communicate with respondent in spite of many
messages to respondent's office. Respondent failed to refund the advance payment
of fees that had not been earned. In additional respondent also failed to retain the
unearned fees in respondent's trust account.
On February 25, 2013, respondent was mailed a Notice of Investigation requesting
a response to the complaint within fifteen days. When no response was received,
respondent was served with a letter pursuant to In the Matter of Treacy, id., again
requesting respondent's response. Respondent failed to respond to the Treacy letter
or to the Notice of Investigation. Respondent did appear before a representative of
ODC and gave testimony regarding these allegations.
Matter VII
On or about February 8, 2012, respondent was retained to represent Client G in a
domestic matter. Respondent was paid $1,590.00 for the representation.
Respondent failed to file the action for adoption as had been requested.
Respondent failed to return Client G's telephone calls or to reply to Client G's
numerous requests.
On February 13, 2013, Client G mailed respondent a letter requesting a return of
Client G's documents and a refund of Client G's retainer within ten days of the date
of the letter. Respondent failed to respond to Client G's letter or to communicate
with Client G regarding Client G's requests.
Respondent admits she failed to withdraw from representation of Client G when
respondent's physical and/or mental condition materially impaired respondent's
ability to represent Client G. Respondent failed to refund the advance payment of
fees that had not been earned. In addition, respondent also failed to retain the
unearned fees in her trust account.
On March 13, 2013, respondent was mailed a Notice of Investigation requesting a
response to the complaint within fifteen days. When no response was received,
respondent was served with a letter pursuant to In the Matter of Treacy, id., again
requesting respondent's response. Respondent failed to respond to the Treacy letter
or to the Notice of Investigation. Respondent did appear before a representative of
ODC and gave testimony regarding these allegations.
Matter VIII
Respondent was retained on February 6, 2012, to represent Client H in a child
custody matter. Respondent was paid $2,000.00 for the representation.
Respondent made two court appearances on Client H's behalf concerning child
support. Respondent failed to schedule a hearing on Client H's behalf regarding
the custody issue. Respondent failed to keep Client H informed regarding the
statue of Client H's custody case.
Respondent admits she failed to withdraw from representation of Client H when
respondent's physical and/or mental condition materially impaired respondent's
ability to represent Client H.
On March 27, 2013, respondent was mailed a Notice of Investigation requesting a
response to the complaint within fifteen days. When no response was received,
respondent was served with a letter pursuant to In the Matter of Treacy, id., again
requesting respondent's response. Respondent failed to respond to the Treacy letter
or to the Notice of Investigation. Respondent did appear before a representative of
ODC and gave testimony regarding these allegations.
Matter IX
Respondent was retained to represent Client I in a domestic matter and was paid
$3,500.00 for the representation. Respondent failed to do any work in furtherance
of the representation.
Respondent admits she failed to withdraw from representation of Client I when
respondent's physical and/or mental condition materially impaired respondent's
ability to represent Client I. Respondent failed to refund the advance payment of
fees that had not been earned. In addition, respondent also failed to retain the
unearned fees in her trust account.
On May 1, 2013, respondent was mailed a Notice of Investigation requesting a
response to the complaint within fifteen days. Respondent was transferred to
incapacity inactive status on May 3, 2013. In the Matter of Davis, supra.
Respondent appeared before a representative of ODC and gave testimony
regarding the allegations in this matter.
Matter X
Respondent was retained to represent Client J in a domestic matter for the adoption
of Client J's nephew. Respondent was paid $150.00 for the representation.
Respondent failed to do any work in furtherance of the representation. Respondent
failed to return any of Client J's telephone calls or keep Client J informed about the
status of Client J's matter.
Respondent admits she failed to withdraw from representation of Client J when
respondent's physical and/or mental condition materially impaired respondent's
ability to represent Client J. Respondent failed to refund the advance payment of
fees that had not been earned. In addition, respondent also failed to retain the
unearned fees in her trust account.
Respondent appeared before a representative of ODC and gave testimony
regarding the allegations in this matter.
Matter XI
On April 9, 2012, respondent was retained to represent Client K in a domestic
matter. Respondent was initially paid $750.00 on April 9, 2012, and another
$200.00 on May 15, 2012. Client K met with respondent at a restaurant and paid
her an additional $500.00. During this last meeting, respondent informed Client K
that her case was completed and respondent would schedule a final hearing the
following week. Despite respondent's representation, respondent failed to do any
work in furtherance of Client K's case. Respondent closed her law office without
notifying Client K of a new location or contact number.
Respondent admits she failed to withdraw from representation of Client K when
respondent's physical and/or mental condition materially impaired respondent's
ability to represent Client K. Respondent failed to refund the advance payment of
fees that had not been earned. In addition, respondent also failed to retain the
unearned fees in her trust account.
Respondent appeared before a representative of ODC and gave testimony
regarding the allegations in this matter.
Matter XII
After a finding of fact by the Resolution of Fee Disputes Board (Board),
respondent was ordered to pay $2,500.00 to Client B referenced above.
Respondent failed to pay the judgment and a certificate of non-compliance was
issued by the Board on March 28, 2014. Respondent was mailed a Notice of
Investigation on April 30, 2014, requesting a written response within fifteen days.
Respondent failed to file a written response to the Notice of Investigation.
Law
Respondent admits that by her conduct she violated the following Rules of
Professional Conduct, Rule 407, SCACR: Rule 1.2 (lawyer shall abide by client's
decisions concerning objectives of representation); Rule 1.3 (lawyer shall act with
reasonable diligence and promptness in representing client); Rule 1.4 (lawyer shall
keep client reasonably informed about status of matter and promptly comply with
reasonable requests for information); Rule 1.5 (lawyer shall not charge or collect
unreasonable fee); Rule 1.15 (lawyer shall deposit into client trust account
unearned legal fees that have been paid in advance to be withdrawn by lawyer only
as fees are earned; lawyer shall hold client's property in lawyer's possession in
connection with representation separate from lawyer's own property; lawyer shall
promptly deliver to client any funds client entitled to receive); Rule 1.16 (lawyer
shall not commence representation and shall withdraw from representation if
lawyer's physical or mental condition materially impairs lawyer's ability to
represent client; upon termination of representation, lawyer shall take steps to
extent reasonably practicable to protect client's interests, such as surrendering
papers and property to which client entitled and refunding any advance payment of
fee that has not been earned); Rule 3.2 (lawyer shall make reasonable efforts to
expedite litigation consistent with interests of client); Rule 8.1(b) (in connection
with disciplinary matter, lawyer shall not fail to respond to lawful demand for
information from disciplinary authority); Rule 8.4(a) (it is professional misconduct
for lawyer to violate Rules of Professional Conduct); Rule 8.4(d) (it is professional
misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit or
misrepresentation); and Rule 8.4(e) (it is professional misconduct for lawyer to
engage in conduct prejudicial to administration of justice). In addition, respondent
admits her misconduct constitutes grounds for discipline under the following Rules
for Lawyer Disciplinary Enforcement, Rule 413, SCACR: Rule 7(a)(1) (it shall be
ground for discipline for lawyer to violate Rules of Professional Conduct) and Rule
7(a)(10) (it shall be ground for discipline for lawyer to willfully fail to comply with
final decision the Resolution of Fee Disputes Board).
Conclusion
This Court accepts the Agreement for Discipline by Consent and suspends
respondent from the practice of law in this state for two (2) years, not retroactively
to the date of her transfer to incapacity inactive status. In addition, in the event she
is reinstated to the practice of law,1 this Court imposes the following conditions on
respondent:
1. respondent shall pay the costs incurred in the investigation and
prosecution of this matter by ODC and the Commission on Lawyer
Conduct (the Commission) within thirty (30) days of reinstatement;
2. respondent shall complete the Legal Ethics and Practice Program Ethics
School within nine (9) months of reinstatement; and
3. within sixty (60) days of reinstatement, respondent shall execute a
restitution agreement with the Commission for repayment as follows:
$2,500 to Client B; $1,500 to Client C; $1,675 to Client E; $996.78 to
1
For purposes of this opinion, reinstatement shall include respondent's
reinstatement from this disciplinary suspension as provided by Rule 33, RLDE,
and reinstatement from incapacity inactive status as provided by Rule 28, RLDE.
Client F; $1,590 to Client G; $3,500 to Client I; $150 to Client J; $1,450
to Client K; full repayment to the Lawyers' Fund for Client Protection
(Lawyers' Fund) of amounts paid to any client referenced in the
Agreement by the Lawyers' Fund;2 and $544.80 to the Lawyers' Fund for
its payment of the costs and fees incurred by the attorney appointed to
protect the interests of respondent's former clients.3
Within fifteen days of the date of this opinion, respondent shall file an affidavit
with the Clerk of Court showing that she has complied with Rule 30 of Rule 413,
SCACR.
DEFINITE SUSPENSION.
PLEICONES, C.J., BEATTY, KITTREDGE, HEARN and FEW, JJ., concur.
2
The amount due to any client listed in the restitution agreement shall be reduced
by any amount paid to the client by the Lawyers' Fund.
3
By order dated April 22, 2014, this Court relieved the attorney appointed to
protect the interests of respondent's former clients, directed the Lawyers' Fund to
reimburse the attorney for his costs and fees associated with his appointment, and
ordered respondent to reimburse the Lawyers' Fund within thirty (30) days of its
remittance to the attorney. Respondent has not repaid the Lawyers' Fund as
required by this Court's order.