THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of John W. Howard, III, Respondent.
Appellate Case No. 2014-002460
Opinion No. 27481
Submitted November 20, 2014 - Filed January 21, 2015
PUBLIC REPRIMAND
Lesley M. Coggiola, Disciplinary Counsel, and Ericka M.
Williams, Assistant Disciplinary Counsel, both of
Columbia, for Office of Disciplinary Counsel.
John W. Howard, III, of Greenville, pro se.
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 confidential admonition or public reprimand with conditions.
We accept the Agreement and issue a public reprimand with conditions as set forth
hereafter in this opinion. The facts, as set forth in the Agreement, are as follows.
Facts
Matter I
Complainant A retained respondent to bring a contempt action against his ex-wife
for violation of a family court order. A family court judge signed the contempt
order on February 20, 2009, and the order was filed on March 18, 2009. Following
the hearing, respondent prepared a bench warrant that was signed by the judge on
July 9, 2009. In October 2009, after receiving documentation which respondent
thought satisfied the conditions of the contempt order, respondent prepared a
proposed order recalling the July 9, 2009, bench warrant which the judge signed on
October 7, 2009. Respondent failed to consult with Complainant A prior to
preparing the proposed order recalling the bench warrant. Complainant A
disagreed with respondent's decision to voluntarily submit a proposed order
recalling the bench warrant to the judge.
Matter II
Respondent represented Complainant B's wife in a domestic matter. Respondent
drafted a separation and property settlement agreement which was signed by both
Complainant B and his wife. Under the agreement, respondent was to receive the
net proceeds from the sale of the marital home in escrow to be divided equally
between the parties after paying all mortgage and marital indebtedness.
Complainant B made several request to respondent for an accounting of the funds.
Respondent failed to comply with Complainant B's request for an accounting of the
funds in escrow. Respondent represents he did not release a copy of the
accounting to Complainant B because his client instructed him not to do so.
Matter III
On the morning of March 24, 2010, respondent conducted a cash closing.
Respondent disbursed the net proceeds of the closing to the seller prior to
depositing the funds from the buyer. The proceeds check was disbursed to the
seller on the morning of March 24, 2010, and the deposit of the proceeds was made
during the afternoon on the same day.
Matter IV
Respondent was retained to represent Client C in a domestic action. Respondent
failed to keep Client C reasonably informed regarding the status of Complainant
C's case. Respondent represents he had difficulty reaching Complainant C from
time to time.
Matter V
Respondent was retained to represent Client D in an action for divorce. Following
negotiations with opposing counsel, respondent informed Complainant D that he
would move to set the matter for trial. Respondent represents that his paralegal
failed to request a final hearing and, as a result, Complainant D's case was stricken
from the roster.
Matter VI
In 2009, respondent performed a real estate closing for Complainant E. In late
December 2010 or early January 2011, Complainant E contacted respondent after
learning that the property was still in the name of the original owners. It was
discovered that the deed transferring the property to Complainant E had never been
filed. Respondent was unable to locate the deed in his office. Respondent
represents that his paralegal was responsible for the recording of the closing
documents, but respondent had discharged the paralegal by the time he learned of
the missing deed. Respondent had to locate the original sellers and have a new
deed executed. Complainant E's deed was finally recorded on February 15, 2012.
Matter VII
Respondent conducted a cash closing on July 26, 2012. A check was disbursed to
the realtor who was representing the seller on the same day of the closing.
Respondent represents that the closing concluded at 4:50 p.m. and that the realtor
was able to deposit the check prior to the close of the day. Respondent was not
able to deposit the funds from the closing until the following day and this caused
an overdraft in respondent's trust account.
Matter VIII
On November 8, 2013, respondent conducted a real estate closing where his wife
was the seller. Respondent disbursed the net proceeds check to his wife at closing.
Respondent represents he instructed his wife not to deposit the funds until he had
received the wire transfer into his account. Respondent's wife deposited the check
late in the afternoon on November 8, 2013, prior to the receipt of the incoming
wire transfer. This caused an overdraft in respondent's trust account.
Matter IX
On November 23, 2013, respondent conducted a real estate closing. Due to a
calculation error on the closing statement, the check given to the seller was
$2,475.04 more than it should have been. When respondent was notified by the
bank that there was an incoming item for which there were insufficient funds in
trust, respondent transferred personal funds sufficient to cover the check. The bank
honored the incoming check. After notifying the seller of the error, the seller
wrote a check for the overage and respondent deposited those funds into his real
estate trust account.
Matter X
Respondent conducted a real estate closing on February 14, 2014. In addition to
the wire transfer that respondent received for the closing, the purchasers needed
$36,434.36 to close. The purchasers brought certified funds in the amount of
$38,400 to the closing. Because the purchasers brought excess funds, respondent
deposited the funds into his regular trust account, wrote the purchasers a check for
the overage, and completed the closing. Respondent failed to transfer the
$36,434.36 from his regular trust account to his real estate trust account until
February 20, 2014, after receiving a call from his bank. Respondent immediately
made the transfer to correct the error.
ODC acknowledges respondent has been very cooperative in its investigation of
these matters.
Law
Respondent admits that by his conduct he has violated the following provisions of
the Rules of Professional Conduct, Rule 407, SCACR: Rule 1.2 (lawyer shall
abide by client's decisions concerning the objectives of representation and shall
consult with client as to means by which they are to be pursued); Rule 1.3 (lawyer
shall act with reasonable diligence and promptness in representing client); Rule 1.4
(lawyer shall promptly inform client of any decision or circumstance with respect
to which the client's informed consent is required; shall reasonably consult with
client about means by which client's objectives are to be accomplished; shall keep
client reasonably informed about the status of matter; and shall promptly comply
with reasonable requests for information); Rule 1.15 (lawyer shall safekeep client
property); Rule 1.15(d) (lawyer shall promptly deliver to third person any funds
that third person is entitled to receive and, upon request by third person, shall
promptly render full accounting regarding the funds); Rule 1.15(f) (lawyer shall
not disburse funds from account containing the funds of more than one client or
third person unless funds to be disbursed have been deposited in the account and
are collected funds); and Rule 5.3 (lawyer having direct supervisory authority over
non-lawyer shall make reasonable efforts to ensure that person’s conduct is
compatible with professional obligations of lawyer).
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).
Conclusion
We find respondent's misconduct warrants a public reprimand.1 Accordingly, we
accept the Agreement and publicly reprimand respondent for his misconduct. In
addition, we order respondent to 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 the date of this opinion.2
PUBLIC REPRIMAND.
TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ.,
concur.
1
Respondent's disciplinary history includes a public reprimand, two admonitions,
and three letters of caution warning him to be cautious about complying with most
of the same Rules of Professional Conduct he admits he violated in the current
Agreement. See In the Matter of Howard, 303 S.C. 278, 400 S.E.2d 138 (1991);
Rule 7(b)(4), RLDE (Court can consider admonition in subsequent proceeding as
evidence of prior misconduct solely upon issue of sanction to be imposed); Rule
2(r), RLDE ("[t]he fact that a letter of caution has been issued shall not be
considered in a subsequent disciplinary proceeding against the lawyer unless the
caution or warning contained in the letter of caution is relevant to the misconduct
alleged in the proceedings.").
2
The Court recognizes respondent completed the Legal Ethics and Practice
Program Ethics School and Trust Account School on June 11, 2014.