Disbarment Rather Than Disability

The South Carolina Supreme Court disbarred an attorney who is presently incarcerated on charges of mortgage fraud. The court concluded that the attorney failed to establish a basis to remain suspended based on a claim of incapacity:

In November 2006, the Court placed Respondent on incapacity inactive status pursuant to Rule 28(b), RLDE, Rule 413, SCACR, after he submitted a letter from his doctor stating he was treating Respondent for bipolar disorder and attention deficit hyperactivity disorder and he felt Respondent was incapable of testifying in a deposition.  Respondent requested two specific attorneys to be appointed as counsel and as guardian ad litem, but both attorneys declined. 

On June 1, 2007, a hearing was held before the Panel on the issue of Respondent’s incapacity.  Respondent appeared by telephone, but after he was informed the proceeding would continue without the appointment of counsel, he terminated the call.  The Panel found that Respondent waived his right to present additional medical evidence regarding his incapacity and that the letter from his doctor simply stating Respondent could not testify was insufficient to show he was unable to assist in his own defense.  Therefore, the Panel ordered ODC to schedule a final hearing on the merits.

Despite receiving notice of the merits hearing, Respondent failed to appear.  ODC presented testimony from four witnesses as well as substantial evidence showing Respondent failed to properly maintain his trust, escrow, and operating accounts.  The Panel recommended that Respondent be disbarred.

Respondent is currently incarcerated as a result of federal mortgage fraud charges, which are unrelated to this disciplinary matter.  After receiving notice that oral arguments before this Court were scheduled, Respondent sought a continuance due to his mental and physical incapacity and requested that the Court appoint counsel.  We denied this request.  This matter has been pending since 2000.  ODC has afforded Respondent more than sufficient time to seek counsel as well as numerous opportunities to submit any medical records showing he is unable to assist in his own defense.  Respondent has repeatedly failed to show any good-faith or genuine effort in asserting his rights or cooperating with ODC.  Accordingly, this matter need not be further delayed.

The bar charges involved misappropriation and related misconduct. The attorney had a record of prior bar discipline. (Mike Frisch)