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Legal Malpractice – a Cautionary Carol

December 19, 2017

Sometime prior to 2009, a lawyer closed his law practice in South Carolina and moved to another state. Unfortunately, his ghost remains in South Carolina, providing cautionary tales this Christmas season for all lawyers. Based on the trial court’s order affirmed in Herring v. Bagnell, 2017 WL 6032651, Lawyer’s “egregious” treatment of his Client has affected his client, Lawyer’s remaining law partner, and the administration of justice in general. His conduct reminds us all, during this holiday season, of several basic lessons in practicing law.

Do what you promise

Client accumulated over $100,000 in consumer debt. After consulting with credit counselors, Client restructured his debt through a settlement agreement with his creditors, whereby he managed to reduce applicable interest rates and, ultimately, pay off his debt. Unfortunately, Client’s creditors continued to seek payment from him on the debt he no longer owed, going so far as impairing Client’s credit. After attempts to fix this himself, Client retained Lawyer, who professed experience in fair debt collection practices. Lawyer promised to associate another law firm to help handle Client’s case, and promised to file a lawsuit. Lawyer did not associate another law firm and never filed a lawsuit against the creditor. In fact, the other law firm declined the case, but Lawyer never informed Client or, apparently, never attempted to associate another law firm.

Keep track of your client’s file

Client provided a “banker’s box” of original documents to Lawyer to support his claim for unfair collection practices. By the time Lawyer responded to repeated inquiries, he confessed he no longer had Client’s original documents, and could only find approximately 280 scanned pages. As of the date of the trial court’s order in 2016, Client had not—approximately 10 years after meeting Lawyer—recovered his original file. Lawyer admitted in an affidavit filed with the trial court that he was unable to locate Client’s original paper files.

Respond to your client’s inquiries

Initially, and for two years, Lawyer assured Client the case was progressing, even though Lawyer never filed a lawsuit on Client’s behalf. Eventually, though, Lawyer stopped responding to Client’s communications. The trial court noted Client repeatedly tried to meet with Lawyer about the case over the course of three (3) years. When it became apparent Lawyer was not actively handling the case, Client attempted to retrieve his file. Client enlisted the assistance of the South Carolina Bar Association to obtain his file and pursue his case with another lawyer. Again, Lawyer was uncooperative. Neither Lawyer nor his law partner notified Client when the South Carolina Supreme Court suspended (and later disbarred) Lawyer from the practice of law. In the disbarment order, the Supreme Court characterized Lawyer’s attitude as “dismissive” toward Client.

Cooperate with Disciplinary Counsel

Client filed a complaint with the Bar’s Office of Disciplinary Counsel (ODC). Lawyer ignored a records subpoena from ODC. Lawyer then refused to cooperate with ODC. Lawyer failed to respond to numerous letters from ODC, and ultimately even failed to respond when ODC filed formal charges. As the Supreme Court found and repeated on numerous occasions, failure to “answer charges or appear or defend or explain alleged misconduct indicates an obvious disinterest in the practice of law.” Predictably, the Supreme Court disbarred Lawyer. In its order, the trial court similarly concluded Lawyer “undermined the pursuit of justice and tarnished the esteem of the legal profession.”

Notify your carrier of a lawsuit

This appellate decision resulted from an appeal of the trial court’s judgment of actual and punitive damages following default by Lawyer. Perhaps there was no coverage; perhaps Lawyer did not notify his malpractice carrier. This default, coming at the end of the long, miserable relationship, seems fitting. However, the prudent action would be to notify one’s carrier and tender the defense, or at a minimum, file an answer on one’s own behalf. Defending a default judgment is much harder than answering the complaint, particularly with limited rights to challenge the plaintiff’s evidence, and without any rights to present evidence of one’s own. Lawyer, recalcitrant to the end, chose to ignore this last “communication” from his client, ultimately to his own detriment.

Minimize damages

Client’s civil action against Lawyer and his law firm proceeded to default, and the trial court initially awarded Client actual damages of $250,000 and punitive damages in the same amount. On appeal, the Court of Appeals reversed and remanded, holding that the actual damages awarded were “not in accord with the evidence presented.” Essentially, the Court of Appeals ruled Client must prove his damages by a preponderance of the evidence. On remand, then, the trial court reviewed all of the damages Client had actually suffered. Despite Lawyer’s representation to the creditor that Client’s damages exceeded $100,000, the trial court summarily rejected that calculation of damages. Instead, the trial court awarded Client approximately $11,000 in actual damages. However, given the nature of Lawyer’s conduct, the intervening nine (9) years Client spend trying to resolve the matter, and the harm Lawyer’s conduct brought to the administration of justice, the trial court assessed punitive damages in the amount of one hundred thousand dollars ($100,000).

In this season of joy, as we prepare for the holiday and the new year, remembering these basic rules should help lawyers avoid a visit from the ghosts of clients past.