THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Ivon Keith McCarty, Respondent.
Appellate Case No. 2019-001094
Opinion No. 27916
Submitted August 1, 2019 – Filed August 21, 2019
PUBLIC REPRIMAND
John S. Nichols, Disciplinary Counsel, and Sabrina C.
Todd, Senior Assistant Disciplinary Counsel, both of
Columbia, for Office of Disciplinary Counsel.
J. Steedley Bogan, of Bogan Law Firm, of Columbia, 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 (the Agreement) pursuant to Rule 21, RLDE, Rule 413, SCACR. In the
Agreement, Respondent admits misconduct and consents to the imposition of a
confidential admonition or a public reprimand. We accept the Agreement and
issue a public reprimand. We further order Respondent to (1) complete the Legal
Ethics and Practice Program Ethics School and Trust Account School within one
(1) year of the date of this opinion, and (2) pay the costs incurred in the
investigation and prosecution of this matter by ODC and the Commission on
Lawyer Conduct (the Commission) or enter into a reasonable payment plan within
thirty (30) days of the date of this opinion. The facts, as set forth in the
Agreement, are as follows.
Facts
While a member of a South Carolina law firm (Law Firm), Respondent
moonlighted, handling more than fifty client matters privately and "off-the-books."
Law Firm identified approximately $100,000 Respondent personally billed to his
moonlighting clients instead of billing on behalf of the firm. Respondent also
provided legal services to many clients without charge.
Respondent's secretary reportedly helped Respondent screen for conflicts, and
there is no evidence Respondent's moonlighting resulted in any conflicts of interest
with current or former Law Firm clients. Respondent's secretary also helped
Respondent issue and collect invoices, and a different non-lawyer staff member of
Law Firm assisted Respondent in handling a moonlighting client's matter, but there
is no record Respondent invoiced or collected a fee in that matter.
In most instances, Respondent did not open files for his moonlighting clients on
Law Firm's case management system; however, even when he did, he did not use
Law Firm's billing software to track his time or bill his moonlighting clients.
Respondent did not maintain a trust account or trust account records for his
moonlighting cases and, on one occasion, Respondent failed to deposit $500 in
unearned legal fees into a trust account. Respondent did use Law Firm's computers
to draft correspondence and pleadings irrespective of whether the matter was a
firm matter or a moonlighting matter.
Respondent's moonlighting clients came to him independently of Law Firm and his
moonlighting invoices bore only Respondent's name. However, invoice cover
letters and update letters addressed to Respondent's moonlighting clients were
typically on Law Firm stationery. Respondent presented affidavits from nineteen
of his moonlighting clients stating they were aware they were represented solely by
Respondent and not by Law Firm. Nevertheless, that same information was not
made clear to third parties. Respondent's letters to opposing parties and counsel
were on Law Firm stationery and Law Firm's name appeared in the signature block
of Respondent's letters and court filings related to his moonlighting cases.1
1
There is no indication Law Firm ever received a malpractice claim arising from any of
Respondent's moonlighting cases or that Law Firm was ever asked to send another attorney from
the firm to court in any of Respondent's moonlighting matters. There was also no overlap
between Law Firm's clientele and Respondent's moonlighting clientele with the exception of a
single matter in which Law Firm was asked to handle an insurance defense matter on which suit
was never filed. Respondent ultimately worked for the personal representative of the estate
connected with the insurance defense matter and billed the case as one of his moonlighting cases.
While working as a member of Law Firm, Respondent was entitled to seventy to
eighty percent of his collected billings, covered his overhead, did not neglect firm
matters, brought business into the firm through his moonlighting and firm-related
work, and represented members of the firm and their families on numerous
occasions for no charge. Additionally, while a member of Law Firm, Respondent
was elected to town council and helped another member of Law Firm become
appointed as town attorney.
Respondent maintains Law Firm had no prohibition against any member of the
firm engaging in outside business activities and moonlighting was not prohibited.
Respondent further notes he did not hide his moonlighting, but concedes it would
have been better if he had explicitly discussed his plan to moonlight and sought
clearance prior to engaging in moonlighting. A representative of Law Firm
contended Law Firm's policy required all legal services rendered by the firm's
attorneys to be billed in the firm's name and that all fees be collected by the firm;
however, the representative confirmed this policy was never reduced to writing in
Law Firm's operating agreement or elsewhere. Respondent and Law Firm quickly
settled their dispute through Respondent's payment of $35,000 to Law Firm and the
execution of a mutual release of all claims.
Law
Respondent admits that his actions violated the following provisions of the Rules
of Professional Conduct contained in Rule 407, SCACR: Rule 1.15(c) (requiring
unearned legal fees be deposited into a trust account); Rule 4.1(a) (prohibiting false
statements of material fact or law to third parties); Rule 8.4(d) (prohibiting
engagement in conduct involving dishonesty, fraud, deceit, or misrepresentation);
and Rule 8.4(e) (prohibiting engagement in conduct prejudicial to the
administration of justice).
Respondent also admits the allegations contained in the Agreement constitute
grounds for discipline under Rule 7(a)(1), RLDE, Rule 413, SCACR ("It shall be a
ground for discipline for a lawyer to: (1) violate or attempt to violate the Rules of
Professional Conduct, Rule 407, SCACR, or any other rules of this jurisdiction
regarding professional conduct of lawyers . . . .").
Respondent later forwarded the $3,022.50 he collected in that matter to Law Firm.
Conclusion
We find Respondent's misconduct warrants a public reprimand. Accordingly, we
accept the Agreement and publicly reprimand Respondent. Within thirty (30) days
of the date of this opinion, Respondent shall pay the costs incurred in the
investigation and prosecution of this matter by ODC and the Commission or enter
into a reasonable repayment plan. Further, within one (1) year of the date of this
opinion, Respondent shall complete the Legal Ethics and Practice Program Ethics
School and Trust Account School.
PUBLIC REPRIMAND.
BEATTY, C.J., KITTREDGE, HEARN, FEW and JAMES, JJ., concur.