THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of James Gerald Longtin, Respondent.
Opinion No. 27009
Heard April 19, 2011 - Filed July 18, 2011
DEFINITE SUSPENSION
WITH ADDITIONAL CONDITIONS
Lesley M. Coggiola, Disciplinary Counsel, and C. Tex Davis Jr., Senior Assistant Disciplinary Counsel, both of Columbia, for Office of Disciplinary Council.
Jeffrey M. Butler, of Walterboro, for Respondent.
PER CURIAM: In this attorney disciplinary matter, the Office of Disciplinary Counsel (ODC) filed formal charges on allegations of misconduct against James Gerald Longtin (Respondent) stemming from six separate complaints. Following a hearing, the Hearing Panel of the Commission on Lawyer Conduct (Panel) recommended Respondent be suspended from the practice of law for a period of six months, along with certain other requirements. ODC took exception to the Panel Report on several grounds. We agree with the exceptions taken by ODC, and order Respondent's suspension from the practice of law for a period of nine months from the date of this opinion. Further, we adopt all other sanctions recommended by the Panel with the additional requirement that Respondent appear before the Committee on Character and Fitness prior to reinstatement.
I. Factual/ Procedural History
Matter A
Respondent was the attorney of record for approximately five cases before the Honorable J. Michael Baxley in the circuit court. On October 31, 2005, Respondent arrived late to a roster meeting, where he informed the court that the five cases were all default cases. Therefore, the court advised Respondent to provide default motions and proposed orders for each case within ten days of the roster meeting. Respondent did not provide the requested motions and orders within that timeframe, nor thirty days after the original deadline when the court reminded Respondent to file the motions and proposed orders. Consequently, the court dismissed each case with prejudice for lack of prosecution.
In November 2005, the Honorable Doyet A. Early III issued an Order and Rule to Show Cause for Respondent to appear and show cause why several cases should not be dismissed for failure to prosecute. At the hearing on November 30, 2005, Respondent was unable to provide the court with a satisfactory reason for failing to file the necessary motions and orders to conclude the cases. Therefore, the court ordered Respondent to provide a full report on all of the cases within one week of the hearing. Respondent did not comply with the court's directive until January 6, 2006.
Matter B
An out-of-state client retained Respondent to handle various collection matters. By letter dated October 28, 2005, the client requested Respondent return all case files and provide a detailed status report of the work he performed. Respondent did not reply, and the client mailed a follow-up letter in December 2005. By letter dated January 10, 2006, Respondent confirmed he was in the process of closing all of the files; however, he did not communicate with the client regarding the status of the cases. Despite several telephone calls and another follow-up letter, as of May 1, 2006, when the client filed a grievance with ODC, Respondent had not yet provided the requested information.
ODC notified Respondent by letter dated May 11, 2006, that the client filed a complaint. Respondent replied in a letter dated May 26, 2006, that his failure to provide the requested information was the result of a "misinterpretation." By letter dated February 15, 2007, ODC provided Respondent with a copy of another letter from the client, dated October 26, 2006, indicating Respondent had still not provided the requested information, so ODC requested a written response within fifteen days, stating why Respondent still failed to provide the requested information. Respondent did not respond or otherwise communicate with ODC in response to the letter. Therefore, on March 28, 2007, ODC sent a letter pursuant to In the Matter of Treacy, 277 S.C. 514, 290 S.E.2d 240 (1982), again requesting a written response. Respondent failed to reply or otherwise communicate with ODC. Consequently, the Commission authorized a full investigation into the matter on June 15, 2007, and served Respondent with a Notice of Full Investigation. Respondent failed to provide a written response to the Notice of Full Investigation.
Matter C
On March 4, 2003, the United States District Court for the District of South Carolina suspended Respondent from the practice of law, as a consequence of Respondent's previous suspension by this Court on October 28, 2002.[1] In 2004, after Respondent applied to file a complaint in the district court on behalf of a client during his suspension, Chief Judge Joseph F. Anderson Jr. ordered Respondent to begin the process of reinstatement immediately. However, Respondent failed to commence this process, and continued to practice law in the district court and to accept fees from parties seeking relief in the United States Bankruptcy Court, where he represented debtors in ongoing cases. While suspended, Respondent filed thirty-six new cases in federal court.
At a Rule to Show Cause Hearing in 2006, the district court admonished Respondent and suspended him from practicing in the district court for at least one year following his readmission and placed certain other conditions upon Respondent for gaining readmission.[2] However, Respondent subsequently assisted a litigant in filing a motion in the district court while suspended.
In
October 2004, Respondent retained the complainant law firm to conduct research
and draft an appellate brief in a criminal appeal and paid an initial retainer
of $1,500.00. The law firm completed this work in December 2004 and notified
Respondent he owed a balance of $803.16, after which the law firm sent numerous
letters to Respondent attempting to collect the fee.[3] The law firm made several offers for Respondent to pay half of the amount due
in a lump sum or to make smaller monthly installments. Respondent did not avail
himself of either option and insisted on paying the full amount due, never
contesting the balance. After the law firm filed the grievance in October 2007, and nearly
three years after Respondent received the law firm's services, Respondent
finally paid the balance. The law firm subsequently abandoned its grievance.
In
June 2005, the complainant client retained Respondent to prepare and record a
deed, paying Respondent $160.00 in attorney's fees and recording costs. Respondent
reluctantly provided the client with the necessary paperwork to execute the
deed at home. Within several days, the client returned a signed deed to
Respondent's secretary for recording. Respondent did not record the deed.
After several attempts to contact Respondent, the client reached Respondent on
the telephone, and he informed her that she had incorrectly executed the deed.
The client returned to Respondent's office the next day to execute a proper deed.[4]
After executing the second deed, Respondent told the client he would record the
deed. For several months, Respondent did not record the deed as promised and
the client attempted to contact Respondent. Respondent never replied.
Ultimately, the client hired another lawyer to record the deed. In
December 2005, the client filed a complaint in magistrate's court to recoup
attorney's fees and filing fees from Respondent. Respondent did not answer.[5]
On January 26, 2006, the magistrate court entered a judgment against
Respondent. The client contacted the South Carolina Bar's Client Assistance
Program (CAP) for assistance. CAP attempted to contact Respondent, but he did
not respond. Therefore, CAP contacted ODC in April 2008. By letter to
Respondent dated April 8, 2008, ODC requested a written explanation within
fifteen days. Respondent failed to respond or otherwise communicate with ODC.
On May 5, 2008, ODC sent Respondent a Treacy letter again requesting a
written response. Respondent finally replied on May 6, 2008. To date,
Respondent retains the $10.00 recording fee in his trust account. Matter F In
August 2007, the defendant in another collections matter forwarded a check to
Respondent to satisfy a debt owed to his client. Respondent told the defendant
he would file a Stipulation of Dismissal with Prejudice with the clerk of court,
even though the case had already been dismissed. However, Respondent never
filed a Stipulation of Dismissal, even after repeatedly telling the defendant
he would do so. Respondent's delay in filing the dismissal prevented the
defendant from resolving the matter until July 2008. Mitigation Dr.
Charlotte Murrow Taylor, who holds a Ph.D. in counseling, testified before the Panel
on Respondent's behalf. Dr. Taylor has performed extensive testing on
Respondent and currently treats him. She opined that Respondent suffers from
Asperger's disorder, adult variety,[6] Attention Deficit Disorder, and anxiety disorder. According to Dr. Taylor,
stress from receiving a Treacy letter, from a court demanding
information, or from an angry client would likely trigger Respondent's avoidant
tendencies, causing him to close himself off from subsequent communications. Dr.
Taylor testified Asperger's patients are treatable through cognitive behavioral
intervention therapy, comprising rote practice of behavioral and social skills.
With the aid of medication, Dr. Taylor testified, patients have been known to
make great progress under this form of therapy. She testified Respondent is currently
taking medication, has been cooperative in his counseling, has reacted
positively to treatment, and has made considerable progress since she began
treating him. Panel's Recommendation The
Panel found Respondent committed misconduct with respect to Matters A, B, and
C. However, the Panel found Respondent did not commit misconduct as to Matters
D and F, and as to Matter E, the Panel made a partial finding of misconduct. Therefore, the Panel found Respondent violated the
following Rules of Professional Conduct, Rule 407, SCACR: Rule 1.3 (Diligence);
Rule 1.4 (Communication); Rule 3.2 (Expediting Litigation); Rule 5.5
(Unauthorized Practice of Law); Rule 8.1(b) (Bar Admission and Disciplinary
Matters); and Rule 8.4(a) (Violation of RPC). Additionally, the Panel found
that Respondent violated Rules 7(a)(1), 7(a)(5), and 7(a)(7) of the Rules for
Lawyer Disciplinary Enforcement, Rule 413, SCACR. Based on these findings, the Panel recommends this
Court: (1) suspend Respondent from the practice of law for a definite period of
six months and appoint an attorney to protect clients' interests; (2) order
Respondent to pay the cost of the disciplinary proceedings; (3) require
Respondent to complete the Legal Ethics and Practice Program Ethics School and
Trust Account School as a condition of discipline; (4) require Respondent to
continue to follow the recommendations of his treating physicians, including
counseling and medication, and to file quarterly treatment compliance and
progress reports with the Commission for a period of two years following his
return to the practice of law; (5) require Respondent to meet regularly with a
Mentor approved by ODC for a period of two years following his return to the
practice of law and to file quarterly reports by the Mentor during that time
period; and (6) require Respondent to return the $10.00 recording fee which he
continues to hold in his trust account to the complainant client. The Panel considered as aggravating circumstances
Respondent's prior disciplinary offense and his obstruction of disciplinary
proceedings by intentionally failing to comply with the directives of ODC. The
Panel concluded Respondent's diagnosis of Asperger's syndrome did not excuse
Respondent's omissions, but did operate to mitigate the severity of any
sanctions imposed. II. Discussion The
sole authority to discipline attorneys and decide appropriate sanctions after a
thorough review of the record rests with this Court. In re Thompson,
343 S.C. 1, 10-11, 539 S.E.2d 396, 401 (2000). In such matters, this Court may
draw its own conclusions and make its own findings of fact. Id.; Rule
27(e)(2), RLDE, Rule 413, SCACR (We "may accept, reject or modify in whole
or in part the findings, conclusions and recommendations of the
[Panel]."). Nevertheless, the findings and conclusions of the Panel are
entitled much respect and consideration. Id. Moreover, "[a] disciplinary violation must be proven by clear
and convincing evidence." In re Greene, 371 S.C. 207, 216,
638 S.E.2d 677, 682 (2006); see also Rule 8,
RLDE, Rule 413, SCACR ("Charges
of misconduct or incapacity shall be established by clear and convincing
evidence, and the burden of proof of the charges shall be on the disciplinary
counsel."). Matters A, B, C, and F We agree with the
Panel that Respondent committed misconduct under the facts of Matters A, B, and
C, but not under the facts of Matter F. Neither party takes exception to these
findings. Accordingly, "the parties are deemed
to have accepted the Panel's findings of fact, conclusions of law, and
recommendations" as to these matters. In Re Prendergast, 390 S.C. 395, 396 n.2, 702 S.E.2d
364, 365 n.2 (2010) (citing Rule 27(a), RLDE, Rule 413, SCACR, which states, "The
failure of a party to file a brief taking exceptions to the report constitutes
acceptance of the findings of fact, conclusions of law, and
recommendations."). Therefore we agree with the Panel that Respondent committed misconduct
as to Matter A by failing to prosecute
cases adequately on behalf of his clients and to follow orders of the court; as
to Matter B by willfully failing to respond to his client and the ODC; and as
to Matter C by continuing to practice law in the federal court while
suspended. We further agree with the Panel as to Matter F that Respondent's
conduct did not evidence any intent to mislead or take advantage of the
complainant, nor did his conduct cause her any harm, so Respondent did not
violate the Rules of Professional Conduct in that Matter. Matter D The
Panel did not find Respondent committed misconduct as to Matter D, and ODC
takes exception to this finding. We agree with ODC that the Panel erred in
finding Respondent did not commit misconduct after failing to pay the case-related
expenses to the complainant law firm. The
Panel "was satisfied that Respondent was simply unable to financially pay
the [law] firm and did not willfully ignore the bill or refuse to pay
it." In addition, the Panel was inclined to dismiss the allegations
against Respondent because the complainant law firm instituted the disciplinary
action solely to collect the debt and abandoned its grievance immediately after
Respondent paid. However, the Panel was split regarding whether the Rules
allow for a finding of misconduct where an attorney fails to pay another
attorney case-related expenses. Therefore, the Panel found ODC had not met its
burden of proof that Respondent committed misconduct by failing to pay the law
firm the case-related expenses until after the grievance was filed. Rule 8.4(a) of the Rules of Professional Conduct
provides "[i]t is professional misconduct for a lawyer to violate or
attempt to violate the Rules of Professional Conduct, knowingly assist or
induce another to do so, or do so through the acts of another." Moreover,
Rule 7(a)(5) of the Rules for Lawyer Disciplinary Enforcement states "[i]t
shall be a ground for discipline for a lawyer to engage in conduct tending to
pollute the administration of justice or to bring the courts or the legal profession
into disrepute or conduct demonstrating an unfitness to practice law."
The Court has relied on these provisions in past disciplinary proceedings to
find misconduct where a lawyer has failed to pay case-related expenses to a
third-party. See In re Johnson, 385 S.C. 501, 685 S.E.2d 610
(2009) (disciplining an attorney for failing to pay an expert witness); In
re Okpalaeke, 374 S.C. 186, 648 S.E.2d 593 (2007) (disciplining an attorney
for failing to pay a copy bill to a court reporter); In re Fulton, 343
S.C. 506, 541 S.E.2d 531 (2001) (disciplining an attorney for failing to pay a
physician's court appearance fee). Similarly,
the appellate work performed by the complainant law firm was a case-related
expense, and Respondent's failure to timely pay the balance amounts to
misconduct under the Rules. In our view, Respondent did not provide
satisfactory reasons for not timely paying the law firm. Respondent maintains,
and the Panel concluded, that he was not aware he would owe additional fees
when he retained the firm to handle the appellate work and did not have
adequate funds to pay the law firm the remainder of the fee charged. However, this
does not excuse Respondent's failure to pay the law firm a relatively nominal
sum for nearly three years, especially after the law firm made several offers
and attempts to negotiate a payment plan. Therefore, we believe such failure
warrants a finding of misconduct under the Rules.[7] Matter E As to
Matter E, the Panel found Respondent committed misconduct by failing to timely
respond to inquiries from ODC. However, because it found Respondent to be the
more credible witness concerning the factual dispute over whether the client
returned to Respondent's office to execute the second deed, the Panel found ODC
failed to meet its burden of proving Respondent committed misconduct.
Nevertheless, the Panel recommended we require Respondent to return the $10.00
recording fee Respondent continues to hold in his trust account. The ODC
objected to the portion of the Panel's finding concerning the credibility
determination. We agree with ODC that the Panel erred in not finding
misconduct under the facts of Matter E because Respondent failed to perform the
task for which he was retained. The
Court remains the ultimate fact-finder in disciplinary matters. See Johnson,
385 S.C. at 504, 685 S.E.2d at 611 ("We may 'accept, reject, or modify in
whole or in part the findings, conclusions and recommendations of the [Panel].'")
(quoting Rule 27(e), RLDE, Rule 413, SCACR)). Regardless of the factual
dispute surrounding the circumstances, it is undisputed that the complainant
client hired Respondent to record a deed, and Respondent never completed this
task. This fact is evidenced by Respondent's retention of the recording fee in
his trust account and the complainant's testimony she was forced through
Respondent's inaction to hire another attorney to record the deed and
eventually sue Respondent for a refund of these costs and fees. Regardless of
whose version of events we believe concerning the preparation of the deed
documents for recording, Respondent undoubtedly failed to perform the task for
which he was retained. Therefore, we find Respondent committed misconduct with
respect to Matter E. Character and Fitness Finally,
we agree with ODC that Respondent should be required to appear before the
Committee on Character and Fitness if he chooses to seek reinstatement. The
Panel concluded that Dr. Taylor's testimony "raise[d] serious questions
about Respondent's capacity to practice law unless he continues to make
substantial progress in his treatment" for Asperger's Syndrome and
suggested Respondent receive "close treatment and observation if [he]
seeks to return to the active practice of law," but did not recommend
screening by the Committee on Character and Fitness prior to reinstatement. As
an initial observation, the instant case presents several egregious acts of
misconduct. We are very concerned about Respondent's failure to heed
directives from state and federal judges, and to communicate with his clients
and ODC. While we find Respondent's actions reprehensible, we are also
sympathetic to Respondent's recent diagnosis. However, we must weigh this
sympathy against our duty to protect the public from lawyers who may lack the
present ability to adequately represent their clients in the courts of this
State. Dr. Taylor testified Asperger's patients have the ability to learn to
control the kinds of behaviors that led to these proceedings. It is our hope
that Respondent will continue to thrive in his treatment plan. However, as an
added protection to the public, we find it prudent to require Respondent to
appear before the Committee on Character and Fitness if he chooses to petition
for reinstatement. The Committee on Character and Fitness is in the best
position to ensure Respondent's continued compliance with his treatment plan
and will make an informed recommendation concerning Respondent's ability to
practice law.[8] Conclusion Based on the
foregoing reasons, we find Respondent violated the following Rules of
Professional Conduct, Rule 407, SCACR: Rule 1.3 (Diligence); Rule 1.4
(Communication); Rule 3.2 (Expediting Litigation); Rule 5.5 (Unauthorized
Practice of Law); Rule 8.1(b) (Bar Admission and Disciplinary Matters); and
Rule 8.4(a) (Violation of RPC). Additionally, we find Respondent violated Rules
7(a)(1), 7(a)(5), and 7(a)(7) of the Rules for Lawyer Disciplinary Enforcement,
Rule 413, SCACR. We adopt the Panel's conclusion that Respondent's diagnosis
does not preclude findings of misconduct in this case, but does serve to
mitigate the sanctions imposed below. Therefore,
we conclude Respondent's misconduct warrants suspension from the practice of
law for a period of nine months from the date of this opinion, and during the
suspension, we direct the appointment of an attorney to protect clients'
interests. Prior to filing any petition for reinstatement, we order Respondent:
(1) to pay the cost of these disciplinary proceedings; (2) to complete the
Legal Ethics and Practice Program Ethics School and Trust Account School as a
condition of discipline; (3) to continue to follow the recommendations of his
treating physicians, including counseling and medication; and (4) to return to
the complainant client the $10.00 recording fee which Respondent continues to
hold in his trust account. Further, any petition for reinstatement shall be
referred to the Committee on Character and Fitness. If reinstated, Respondent
shall (1) file quarterly treatment compliance and progress reports with the
Commission for a period of two years following his return to the practice of
law; and (2) meet regularly with a Mentor approved by ODC for a period of two
years following his return to the practice of law, and file quarterly reports
by the Mentor during that time period. DEFINITE
SUSPENSION. TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur. [1] The Court previously suspended Respondent for thirty days for failing to
communicate and respond to numerous requests for information concerning the
status of a client's case; failing to adequately communicate with another
client, appear in court on that client's behalf, or timely return phone calls;
and failing to cooperate with ODC. In the Matter of James G. Longtin,
352 S.C. 21, 22, 572 S.E.2d 282, 282 (2002). [2] Respondent remains suspended from practicing law in the district court. [3] All in all, it appears the law firm sent twelve letters between February 28,
2005, and August 28, 2007, and the parties had numerous telephone conversations
during this timeframe concerning the bill. [4] At the hearing, Respondent testified he did not remember executing a second
deed. [5] At the hearing, Respondent testified he was never served with the complaint.
However, when he became aware of the judgment in 2008, Respondent did not
attempt to have it vacated. [6] Dr. Taylor testified Asperger's disorder is a genetic developmental syndrome,
which impairs behavioral development but not intellectual development. She
stated Asperger's patients are generally highly intellectual, but adult
Asperger's patients commonly have problems interacting with people and
functioning under stress. She testified stress tends to exacerbate the common
symptoms of withdrawal, avoidant behavior, and confusion. [7] We note that the law firm abandoned its grievance after Respondent paid the
invoice, and remind the bar that the disciplinary process should not be used as
a mechanism to collect debts. [8] Of course, we recognize that because we have decided to impose a nine month
suspension, instead of the six month suspension recommended by the Panel, the
Rules require that any petition for reinstatement be transferred to the Committee
on Character and Fitness, unless this Court provides other instructions. Rule
33(d), RLDE, Rule 413, SCACR. The
above-stated concerns justify our decision to order Respondent, upon
petitioning for reinstatement, to appear before the Committee on Character and
Fitness.