In the Matter of Nathan Jardine , 410 S.C. 369 ( 2014 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Nathan N. Jardine, Respondent.
Appellate Case No. 2014-001621
Opinion No. 27459
Submitted October 14, 2014 – Filed October 29, 2014
DISCIPLINE IMPOSED
Lesley M. Coggiola, Disciplinary Counsel, and Barbara
M. Seymour, Deputy Disciplinary Counsel, both of
Columbia, for Office of Disciplinary Counsel.
Nathan N. Jardine, of Farmington, Utah, pro se.
PER CURIAM: Respondent is licensed to practice law in Utah and California;1
he is not licensed to practice law in South Carolina. On November 1, 2013, the
Office of Disciplinary Counsel (ODC) filed Formal Charges against respondent
alleging he offered to provide legal services in South Carolina and directly
solicited a resident of this state in violation of Rule 7, Rules of Professional
Conduct, Rule 407, SCACR, and Rule 418, SCACR. Respondent did not answer
the Formal Charges, was found to be in default, and was therefore deemed to have
1
At the time the Formal Charges were filed, the Supreme Court of Utah had
suspended respondent from the practice for eighteen (18) months. Utah State Bar
v. Jardine, 289 P.3d 516 (2012). According to the Utah State Bar's website,
respondent remains suspended from the practice of law in Utah.
On May 23, 2014, the Supreme Court of California accepted the California State
Bar's recommendation to impose reciprocal discipline. Respondent is not eligible
to practice law in California.
admitted the factual allegations made in this charges.2 See Rule 24(a), RLDE,
Rule 413, SCACR. Following an evidentiary hearing in which respondent did not
appear, the Hearing Panel issued a Panel Report recommending the Court bar
respondent from seeking any form of admission in South Carolina for five (5)
years, along with other sanctions. Neither ODC nor respondent filed exceptions to
the Panel Report. The matter is now before the Court for consideration.
FACTS
Matter I
In January 2013, respondent associated with Fulcrum 360, a loan modification
company, for the purpose of soliciting clients in loan modification cases under the
name J Nolan Legal.3 Fulcrum 360 was owned and operated by non-lawyers.
Fulcrum 360 prepared and distributed marketing materials for J Nolan Legal on
behalf of respondent. The materials included a direct mail solicitation and a
website. Fulcrum 360 represented to respondent that an attorney had reviewed the
marketing materials for ethical compliance and that it had developed a referral
network consisting of attorneys in each state to refer clients for foreclosure
representation if necessary. In fact, neither respondent nor Fulcrum 360 had a
referral relationship or association with an attorney licensed to practice law in
South Carolina.
In or around February 2013, a South Carolina resident received a direct mail
solicitation from respondent addressed to her at her home in Eastover, South
Carolina. The solicitation stated it was issued after the prospective client made
known to respondent a desire not to be solicited by virtue of her failure to respond
to prior attempts to contact her. The direct mail solicitation contained material
misrepresentations and omissions of facts necessary to make certain statements
considered as a whole not materially misleading. Specifically, the solicitation did
not disclose the name under which respondent was licensed to practice law,
2
When respondent failed to file an answer to the Formal Charges, ODC filed a
Motion for Default. Respondent filed a return to the motion. By order dated
March 7, 2014, the Hearing Panel denied the Motion for Default and directed
respondent to file an answer to the Formal Charges no later than April 10, 2014.
Respondent did not file an answer and, subsequently, by order dated May 2, 2014,
the Hearing Panel held respondent in default.
3
Nolan is respondent's middle name.
contained the trade name J Nolan Legal which made it difficult for the prospective
client to identify respondent, and did not specify that respondent is not licensed to
practice law in South Carolina or otherwise indicate the jurisdictional limitations
on his ability to practice law in this state. The direct mail solicitation: 1) listed a
"virtual office" in California which respondent only used for the purpose of
receiving mail while he actually worked from an office in Utah and 2) failed to
include the various disclaimers required by Rule 7.3(d)(1), (2) and (3), Rule 407,
SCACR. Further, respondent sent the solicitation in the form of a folded postcard
that revealed the nature of the prospective client's legal problem on the outside and
he failed to maintain a record of dissemination of his solicitations to South
Carolina residents.
Matter II
Although respondent filed an initial response to the notice of investigation issued
by ODC, the response failed to address the allegations with specificity and was not
verified as required by Rule 19(b) RLDE. ODC sent a second request for specific
responses to the allegations and verification. In response, respondent submitted a
response which, again, did not specifically address the allegations or contain his
verification. As a result, ODC issued a notice to appear and subpoena pursuant to
Rules 15(b)(1) and 19(c)(3), RLDE. Respondent appeared and answered questions
under oath. At the conclusion of the interview, respondent was instructed to
provide certain documents in support of his testimony. Subsequent to the
interview, respondent failed to communicate with ODC regarding the disciplinary
investigation.
Respondent made false statements during the disciplinary investigation. In
particular, respondent stated in his response to the initial notice of investigation, "I
have a lawyer licensed to practice law in South Carolina as part of my network.
This lawyer was responsible for all legal work for South Carolina residents and
lives in South Carolina." At the interview, respondent admitted he did not have an
attorney licensed or living in South Carolina in his network and that a
representative of Fulcrum 360 prepared his response and he signed it.
In addition, respondent stated in his response to the initial notice of investigation
that he had three residents of South Carolina enrolled in his loan modification
program and that he intended to inform them that he was withdrawing from
working with South Carolina residents. At the interview, respondent stated he was
mistaken and did not represent any South Carolina residents.
The Hearing Panel found respondent's conduct violated the following Rules of
Professional Conduct, Rule 407, SCACR: Rule 7.1(a) (lawyer shall not make
false, misleading, or deceptive communications about lawyer or lawyer's services;
communication violates this rule if it contains material misrepresentation of fact or
law, or omits fact necessary to make statement considered as a whole not
materially misleading); Rule 7.2(b) (lawyer is responsible for content of any
advertisement or solicitation placed or disseminated by lawyer and has duty to
review advertisement or solicitation prior to dissemination to reasonably ensure
compliance with the Rules of Professional Conduct; lawyer shall keep copy of
every advertisement or communication for two (2) years after its last dissemination
along with record of when and where it was disseminated); Rule 7.2(d) (any
communication made pursuant to this rule shall include name and office address of
at least one lawyer responsible for content); Rule 7.2(h) (all advertisements shall
disclose the geographic location, by city or town, of office in which lawyer or
lawyers who will actually perform services advertised principally practice law);
Rule 7.3(b)(1) (lawyer shall not solicit professional employment from prospective
client by direct written communication if prospective client has made known to
lawyer desire not to be solicited by lawyer); Rule 7.3(c) (lawyer who uses written
solicitation shall maintain file for two years showing basis by which lawyer knows
person solicited needs legal services and factual basis for any statements made in
written communication); Rule 7.3(d)(1) (every written communication from lawyer
soliciting professional employment from prospective client known to be in need of
legal services in particular matter must contain words "ADVERTISING
MATERIAL" printed in capital letters and in prominent type on front of outside
envelope and on front of each page of material); Rule 7.3(d) (2) (every written
communication from lawyer soliciting professional employment from prospective
client known to be in need of legal services in particular matter must contain
following statements: "You may wish to consult your lawyer or another lawyer
instead of me (us). You may obtain information about other lawyers by consulting
directories, seeking the advice of others, or calling the South Carolina Bar Lawyer
Referral Service at 799-7100 in Columbia or toll free at 1-800-868-2284. If you
have already engaged a lawyer in connection with the legal matter referred to in
this communication, you should direct any questions you have to that lawyer" and
"The exact nature of your legal situation will depend on many facts not known to
me (us) at this time. You should understand that the advice and information in this
communication is general and that your own situation may vary;" when solicitation
is written, statements must be in type no smaller than that used in body of the
communication); Rule 7.3(d)(3) (every written communication from lawyer
soliciting professional employment from prospective client known to be in need of
legal services in particular matter must contain following statement: "ANY
COMPLAINTS ABOUT THIS COMMUNICATION OR THE
REPRESENTATIONS OF ANY LAWYER MAY BE DIRECTED TO THE
COMMISSION ON LAWYER CONDUCT, 1015 SUMTER STREET, SUITE
305, COLUMBIA, SOUTH CAROLINA 29201 – TELEPHONE NUMBER 803-
734-2037;" where solicitation is written, statement must be printed in capital letters
and in size no smaller than that used in body of communication); Rule 7.3(h)
(written communication seeking employment by specific prospective client in
specific matter shall not reveal on envelope, or on outside of a self mailing
brochure or pamphlet, nature of the client's legal problem); and Rule 8.1(b) (in
connection with disciplinary matter, lawyer shall not fail to disclose fact necessary
to correct misapprehension known by person to have arisen in matter, or
knowingly fail to respond to a lawful demand for information from disciplinary
authority).4
The Hearing Panel further found respondent is subject to discipline pursuant to 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 or other rules of this jurisdiction regarding professional conduct of
lawyers); Rule 7(a)(3) (it shall be ground for discipline for lawyer to willfully
violate valid order of Commission or hearing panel, willfully fail to appear
personally as directed, or knowingly fail to respond to lawful demand from
disciplinary authority to include request for response or appearance); and Rule
7(a)(5) (it shall be ground for discipline for lawyer to engage in conduct tending to
pollute administration of justice or to bring courts or the legal profession into
disrepute).
The Commission and this Court have jurisdiction over all allegations that a lawyer
has committed misconduct. The term "lawyer" includes "a lawyer not admitted in
this jurisdiction if the lawyer …offers to provide any legal services in this
jurisdiction [and] anyone whose advertisement or solicitations are subject to Rule
418, SCACR." Rule 2(q), RLDE. Further, Rule 418, SCACR, titled "Advertising
and Solicitation by Unlicensed Lawyers," defines "unlicensed lawyer" as an
individual "admitted to practice law in another jurisdiction but…not…in South
Carolina." Rule 418(a). The rule also provides for jurisdiction over allegations of
4
The Rules of Professional Conduct, Rule 407, SCACR, are applicable as
respondent's solicitation specifically targeted a prospective client in South
Carolina. See Rule 418(b), SCACR (any solicitation by unlicensed lawyer shall
comply with Rule 7.1 through 7.5 of RPC when solicitation is targeted to potential
client in this state).
misconduct by unlicensed lawyers, procedures for determining charges of
misconduct, and for sanctions. Rule 418(c) and (d). Accordingly, even though he
is not admitted to practice law in South Carolina, respondent is subject to
discipline in this state.
As noted above, since respondent failed to answer the Formal Charges, he is
deemed to have admitted the allegations in the charges. See Rule 24(a), RLDE.
Further, since he failed to appear for the Panel Hearing, respondent is deemed to
have admitted the factual allegations and to have conceded the merits of any
recommendations considered at the Panel Hearing. See Rule 24(b), RLDE.
Finally, since respondent did not file a brief taking exception to the Hearing Panel's
report, he has accepted the findings of fact, conclusions of law, and the Hearing
Panel's recommendations. See Rule 27(a), RLDE.
The authority to discipline lawyers and the manner in which the discipline is
imposed is a matter within the Court's discretion. In the Matter of Berger, 408 S.C.
313, 759 S.E.2d 716 (2014); In the Matter of Van Son, 403 S.C. 170, 742 S.E.2d
660 (2013). When the lawyer is in default, the sole question before the Court is the
determination of the appropriate sanction. Id.We find debarment with other sanctions appropriate. The misconduct in this
matter is similar to that in In the Matter of Van Son, id., where a lawyer who was
not admitted in this state sent solicitation letters to South Carolina residents and,
thereafter, failed to cooperate with ODC's investigation. In addition to other
sanctions, the Court barred the lawyer from admission in this state and from
advertising or soliciting clients in South Carolina for a period of five years.
In determining the appropriate sanction, the Court has not only considered
respondent's written communication directly soliciting a resident of South Carolina
in violation of the requirements of Rule 7, RPC, but also his false statements of
material fact to ODC, his failure to participate in the disciplinary investigation after
his interview, and his failure to appear for the hearing. In the Matter of Hall, 333
S.C. 247, 251, 509 S.E.2d 266, 268 (1998) ("An attorney's failure to answer
charges or appear to defend or explain alleged misconduct indicates an obvious
disinterest in the practice of law. Such an attorney is likely to face the most severe
sanctions because a central purpose of the disciplinary process is to protect the
public from unscrupulous or indifferent lawyers."). Finally, the Court has
considered respondent's disciplinary history in imposing debarment and other
sanctions.5 In the Matter of Jacobsen, 386 S.C. 598, 690 S.E.2d 560 (2010)
(recognizing disciplinary history is appropriate consideration in imposing
sanction).
We find it appropriate to permanently debar respondent from seeking any form of
admission to practice law in this state (including pro hac vice admission) without
first obtaining an order from this Court allowing him to seek admission. Further,
we prohibit respondent from advertising or soliciting business in South Carolina
without first obtaining an order from this Court allowing him to advertise or solicit
business in this state. Before seeking an order from this Court to either allow him
to seek admission or to advertise or solicit, respondent shall complete the South
Carolina Bar's Legal Ethics and Practice Program Ethics School, Law Office
Management School, and Advertising School. Respondent shall pay the costs of
the investigation and prosecution of this matter by ODC and the Commission
within thirty (30) days of the date of this order.
DEBARRED.
TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ.,
concur.
5
See Footnote 1.