THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Mark Andrew Peper, Respondent
Appellate Case No. 2014-001414
Opinion No. 27441
Heard August 5, 2014 – Filed September 3, 2014
PUBLIC REPRIMAND
Lesley M. Coggiola, Disciplinary Counsel, and Barbara
M. Seymour, Deputy Disciplinary Counsel, both of
Columbia, for Office of Disciplinary Counsel.
Michael J. Anzelmo, of Nelson Mullins Riley &
Scarborough, LLP, of Columbia, for respondent.
PER CURIAM: In this attorney disciplinary matter, respondent and the Office
of Disciplinary Counsel 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 with conditions. We accept the Agreement
and issue a public reprimand with conditions as stated hereafter. The facts, as set
forth in the Agreement, are as follows.
Facts
Matter I
Client A, respondent's childhood friend, was the sole beneficiary of a trust
established by Client A's mother prior to her death. The corpus of the trust
included stocks and a parcel of land with a house where Client A and his wife
resided. In January 2006, Client A approached respondent with a request that
respondent take over as trustee of the trust. Respondent agreed and prepared a
consent substitution of trust and a proposed Order Naming Successor Trustee.
Respondent acknowledges that his services as trustee for Client A's trust were law-
related services and, therefore, the Rules of Professional Conduct apply pursuant to
Rule 5.7. Further, respondent admits that at all times relevant to this matter, Client
A believed respondent was acting as his attorney and, in fact, frequently referred to
respondent as his attorney in conversations with respondent and others. As a
result, respondent acknowledges that it was reasonable for Client A to believe that
the trustee services respondent was providing carried with it the protections
normally afforded as part of the attorney-client relationship and that respondent
took no steps to advise him otherwise.
Misrepresentation to the Court
In the proposed Order Naming Successor Trustee, respondent significantly
overstated his qualifications to serve as trustee. He stated that he was "an attorney
licensed to practice law in the state of South Carolina and [that he had] an
extensive background in the Probate field, including but not limited to, trust
administration." In fact, as of the date of submission of the proposed order to the
Probate Court, respondent had only been admitted to the Bar for three months.
Although he had worked for a probate judge and a law firm as a law clerk for a
total of one and one-half years, he had never actually handled a probate matter as
an attorney and had no experience as a trustee or administrator of an estate. The
probate judge signed the order naming respondent as successor trustee on February
28, 2006.
Respondent admits that he misrepresented his experience to the probate judge
when he submitted the proposed Order Naming Successor Trustee. He further
acknowledges that he did not have sufficient experience to serve as Client A's
trustee.
Financial Recordkeeping
The stocks held by the trust were managed by the investment division of a bank.
The original trustee had set up a trust account at that bank to disburse funds as
necessary for the benefit of Client A. At the time respondent was appointed
successor trustee, the stock value was approximately $52,000.00. When funds
were requested by Client A, respondent would contact a representative at the bank
who would sell off some stock and place the proceeds of the sale into the trust
account. Once respondent was advised that the funds were in the trust account, he
would write a check. The check was given to Client A or used to pay funds on his
behalf. The stocks were depleted between April 2006 and November 2007.
On March 17, 2009, respondent filed a petition to dissolve the trust. Respondent
submitted an accounting of the disbursement of the funds generated by the sales of
the stocks. On April 9, 2009, the probate judge signed respondent's proposed order
dissolving the trust. Respondent did not retain copies of the invoices or bills he
paid; he did not prepare receipts; he did not keep records of cash disbursed; and he
did not retain reconciliations of the trust account.
During the time that respondent served as trustee, he personally provided financial
assistance to Client A and his wife. This assistance was in the form of cash and
checks to them or to third party creditors. Respondent estimates that the total
assistance he personally provided was approximately $50,000.00; however, he
maintained no records of these payments. In response to the disciplinary
complaint, respondent reviewed his bank records and accounted for approximately
$22,838.00 in payments to or on behalf of Client A and his wife.
There is no indication that any trust funds were misappropriated or mishandled.
However, respondent does admit that he failed to comply with Rule 417, SCACR,
which required that he maintain a receipt and disbursement journal, a beneficiary
ledger, records of disbursement, check stubs, bank statements, records of deposit,
the equivalent of pre-numbered canceled checks, and other documents reasonably
necessary for a complete understanding of the financial transactions for a period of
six years.1
Transfer and Encumbrance of Real Property
The February 28, 2006, Order Naming Successor Trustee stated that the original
trustee and respondent agreed that the real property held in trust was "to remain in
the Trust and shall not be transferred out of the Trust under any circumstances."
Contrary to that agreement and the order, respondent prepared a deed transferring
the ownership of land and house from the Trust to Client A. Respondent also
prepared a deed transferring ownership of the property from Client A to himself.
He recorded the two deeds on May 29, 2008.
Respondent initially attempted to record an affidavit of consideration with the deed
that stated that the property was exempt from the recording fee. When it was
rejected by the clerk, he amended the affidavit to state that the consideration paid
for the property was $50,000.00. Respondent did not actually pay Client A any
money in connection with the transfer of title to the property. Respondent listed
this amount on the affidavit of consideration based on his estimation of the total
financial assistance he had personally provided to Client A and his wife, although
at the time the assistance was provided, neither respondent nor Client A considered
it a loan or that Client A would be obligated to repay it. At no time did respondent
obtain an appraisal of the property to determine a fair price.
Respondent asserts that he and Client A agreed that Client A and his wife would
have the right to remain living on the property rent free for the remainder of Client
A's lifetime, with respondent paying all utilities, taxes, insurance, and other
property-related expenses. However, there is no reference to a life estate or any
other retention of interest by Client A or his wife in the deed prepared and filed by
respondent. In fact, other than Client A's signature on the deed, there is no
evidence of any writing provided to or signed by Client A regarding the terms of
the transfer of the property to respondent.
1
The version of Rule 417, SCACR, that governed respondent's conduct in
connection with the trust required that he maintain certain financial records related
to all "bank accounts which concern or affect the lawyer's practice of law." The
current version of Rule 417 is limited to "client trust accounts."
Respondent did not seek or obtain approval from the Probate Court of the May
2008 transfers of the title to the property. In fact, when he filed his petition to
resolve the Trust with the Probate Court in March 2009, he stated only that he
"deeded the property to the beneficiary of the Trust." He did not disclose to the
probate judge that he had simultaneously deeded the property to himself.
On July 30, 2008, respondent encumbered the property by borrowing $112,000.00
and signing a mortgage on the property for $224,000.00.2 Respondent placed an
insurance value on the property in the amount of $202,070.00. Respondent is
unable to produce the property tax bills for 2008 or 2009, but the 2010 bill reflects
an appraisal value for tax purposes of $285,000.00. Respondent used a portion of
the proceeds of the loan to pay off personal debt and for personal expenses.
Respondent represents that he used some of the proceeds to provide financial
assistance to Client A and his wife and to pay expenses related to the property, but
he has no record or accounting to support his assertions in this regard.
On September 17, 2009, respondent signed a second mortgage encumbering the
property to secure a note for a $32,200.00 loan respondent received from a
personal friend. Respondent represents that this was an error on the part of a staff
person who drafted the mortgage, as it was his intention to mortgage his personal
home, not the property obtained from Client A. Respondent states that he did not
realize he had encumbered the wrong property until the disciplinary complaint was
filed in March 2010. During the course of the disciplinary investigation,
respondent satisfied both mortgages and transferred the property back to Client A
by quitclaim deed.
Respondent acknowledges that the transfer of the property to himself was contrary
to the order of the Probate Court. He further admits that the transfer and
encumbrance of the property was a conflict of interest. Although Client A did
have separate counsel to advise him regarding the transaction, respondent admits
that the terms of the transfer were not fair and reasonable to Client A, that the
terms of the transactions were not relayed to Client A in writing, and that he did
not obtain Client A's informed consent. Respondent further admits that he should
2
The bank's explanation to respondent for the difference between the note (which
references the amount actually borrowed) and the amount on the mortgage was "in
case you later are able to increase the note amount you do not have to record a new
mortgage," essentially provided an equity line of credit to respondent.
have disclosed to the Probate Court that he had arranged for the transfer of the
property to himself.3
Matter II
Client B and Client C (Sisters) hired respondent for the administration of their
mother's estate after her death on October 22, 2005. While the probate matter was
pending, Sisters discussed with respondent the possibility of filing a civil action for
malpractice against the medical facility where their mother was treated prior to her
death. On August 15, 2006, Sisters signed a contingency fee agreement retaining
respondent to "prosecute all claims arising out of the personal injury suffered by
[their mother]." The fee agreement provided specific provisions for the "filing of a
lawsuit." The only limitation on the scope of respondent's representation was that
"[i]n the event an appeal is taken," the parties agreed they would enter into "a
separate legal services agreement."
On May 16, 2007, respondent submitted a settlement demand to the facility's
insurance carrier. The carrier responded with an offer well below the demand
amount; the Sisters rejected the offer. Respondent continued settlement
negotiations. On April 7, 2008, the insurance carrier sent a letter to respondent
rejecting Sisters' latest counteroffer and terminating settlement negotiations due to
impasse.
Change to the Scope of Representation
At the time respondent had accepted the case, he had no experience in personal
injury cases, malpractice cases, or civil litigation. Although he studied and
consulted with experienced attorneys in preparation for the case, he determined
during settlement negotiations that he lacked the experience and competence to
handle the matter. Respondent recalls that he met with Sisters personally after
receipt of the first offer, explained to them that he was not the best person to
represent them, and told them that he would not have any idea how to handle
litigation. Respondent recalls that Sisters agreed to change the scope of the
representation at that meeting and limit respondent's work to attempting to obtain a
satisfactory settlement, but that he would not file suit if negotiations were
3
Respondent's conduct in Matter I is subject to the version of the Rules of
Professional Conduct in effect in 2006.
unsuccessful. Respondent has no documentation of this conversation and no
written confirmation of changing the scope of the representation.
Sisters do not recall a conversation during settlement negotiations in which they
agreed to change the terms of the representation. Their understanding was that, if
respondent was unable to settle the matter, he would file a lawsuit for them.
According to their recollection, it was not until after the insurance company
terminated negotiations that respondent decided to associate another attorney to
assist with the litigation. This would have been in accordance with the terms of the
signed fee agreement which stated that "associate counsel may be employed at the
discretion and expense of [respondent]." It was never their understanding that
respondent's representation ended with the settlement negotiations.
Respondent acknowledges that the change in the scope of his representation to
specifically exclude litigation required Sisters' informed consent. Respondent
further acknowledges that his failure to obtain that informed consent in writing
resulted in a misunderstanding between himself and Sisters regarding his role in
the matter.
Association of Counsel for Litigation
In any event, it is undisputed that when settlement negotiations reached an
impasse, respondent referred the matter to a more experienced attorney (Attorney)
in his building. Sisters met with respondent and Attorney to discuss the case and
Attorney's potential involvement. Following the meeting, Attorney accepted the
case, understanding that she was being associated to assist respondent in the
matter, respondent would remain involved in the matter, and that she and
respondent would divide the fee. This was Sisters' understanding as well based on
a confirmation letter they received from Attorney on July 25, 2008, which
confirmed that they had "agreed to allow [Attorney's] association to assist in the
handing of [their] mother's case." The letter specifically referred to Attorney's
"association" twice more. The letter also confirmed that Sisters' contingency fee
agreement would not change and that Attorney and respondent had agreed to
divide the legal fee. Attorney sent respondent a copy of the July 25, 2008, letter
along with a letter she sent on that same day to the insurance company advising it
of her "association" on the matter.
Missed Statute of Limitations
On October 7, 2008, Attorney obtained a slightly higher settlement offer from the
insurance company, but the case was not settled. The statute of limitations on the
personal injury claim expired on October 22, 2008. Neither respondent nor
Attorney filed a civil action in the personal injury matter. Sisters state that neither
respondent nor Attorney advised them of the statute of limitations date or that it
had been missed. Respondent asserts that he advised Sisters of the statute of
limitations date when he referred them to Attorney, but admits he never advised
them in writing. He further asserts that he had no responsibility for ensuring that
suit was filed prior to the expiration of the statute of limitations. He learned of the
missed statute of limitations in a meeting with Sisters on an unrelated matter in
May of 2010.
Respondent now represents that it was his understanding that Sisters "formally
terminated" his representation in July 2008 and that he had no further obligations
in the matter after Attorney became involved. In spite of notice of Attorney's
understanding that it was an association rather than a substitution of counsel,
respondent made no effort to clarify the situation at the time. He did not respond
to receipt of copies of Attorney's July 25, 2008, letters, he did not send a
termination letter to Sisters, and he did not contact Attorney or Sisters to discuss
the misunderstanding. In fact, respondent had no communication with Attorney or
Sisters until the May 2010 meeting when he met with Sisters on an unrelated
matter and inquired about the status of the personal injury case.
When respondent learned Attorney had missed the statute of limitations, he
contacted the insurance company to determine if there was a possibility of payment
of the last settlement offer. The insurance company declined. Respondent then
referred Sisters to independent counsel regarding their potential legal malpractice
claim. Sisters hired counsel and sued Attorney for malpractice. Attorney filed a
cross claim naming respondent as a third-party defendant. Neither Attorney nor
respondent had malpractice insurance coverage at the time. The civil claims were
ultimately dismissed without prejudice and with no compensation to Sisters.
Respondent acknowledges that he did not act diligently in pursing the matter
between August 2006 and July 2008 because of his insecurity about his abilities
with regard to personal injury litigation. He further acknowledges that his lack of
diligence contributed to the association of Attorney a mere three months before the
expiration of the statute of limitations. He also admits that it was incumbent upon
him to ensure that both Sisters and Attorney were aware of the statute of
limitations date.4
Law
Respondent admits that by his conduct he has violated the following provisions of
the Rules of Professional Conduct, Rule 407, SCACR: Rule 1.1 (competence),
Rule 1.3(diligence), Rule 1.4 (communication), Rule 1.8(a) (requirements for
lawyer to knowingly acquire ownership, possessory, security or other pecuniary
interest adverse to client), Rule 1.15(a) (safekeeping client property), Rule 1.16(d)
(requirements upon termination of representation), Rule 3.3(a)(1) (candor to
tribunal), and Rule 5.7 (responsibilities regarding law related services). In
addition, respondent admits he violated the recordkeeping provisions of Rule 417,
SCACR, which were in effect at the time he served as trustee of Client A's Trust.
Respondent also admits he has violated 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).
Conclusion
We find respondent's misconduct warrants a public reprimand with conditions.
Accordingly, we accept the Agreement and publicly reprimand respondent for his
misconduct. Further, as set forth in the Agreement, respondent shall pay the costs
incurred by ODC and the Commission on Lawyer Conduct (the Commission) in
the investigation and prosecution of this matter within thirty (30) days of the date
of this opinion. In addition, respondent shall complete the Legal Ethics Practice
Program Ethics School, Trust Account School, and Law Office Management
School within nine (9) months of the date of this opinion and shall provide
documentation of completion to the Commission no later than ten (10) days after
the conclusion of the programs.
4
Respondent's conduct in Matter II is subject to the version of the Rules of
Professional Conduct in effect in 2008.
PUBLIC REPRIMAND.
TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ.,
concur.