Monday, October 13, 2008

"Magic" Explanation Rejected

The South Carolina Supreme Court imposed a two-year suspension in a`bar discipline matter involving charges of misconduct in six matters. The attorney had contended that two findings of fact should be rejected. The court agreed that there was insufficient evidence of a false statement in a motion to withdraw. However, a finding that the lawyer had submitted falsified documents in the disciplinary case was upheld. The court explained:

After   reviewing the testimony, we find there is clear and convincing evidence that   Respondent allowed the submission of falsified documents to ODC.  Respondent’s secretary testified in detail about the circumstances surrounding the faxing of the backdated   documents to ODC.  She stated Respondent sent her to the courthouse to retrieve the client’s file, and when she returned Respondent told her the documents in question had “magically” appeared.  Respondent asked her to sign the letters   and fax them to ODC, which she did.  Respondent then shredded the originals. In contrast, Respondent testified that he did not produce the documents and had   no knowledge of them before they were sent to ODC as he did not review them.   He stated his secretary might have fabricated the documents as a means of   revenge against him. 

Respondent   contends the panel applied the wrong burden of proof because, in the report   prepared by the subpanel, it is stated:  “We may be unable to determine that ODC has proved Respondent fabricated the documents, however, the totality of   the evidence makes it difficult for us to free the Respondent from any   responsibility.”  Respondent asserts this shows a mere preponderance of the   evidence standard was applied rather than a clear and convincing evidence   standard.  We disagree. The subpanel (and panel) found Respondent was involved in the submission of the admittedly falsified documents, regardless of whether   Respondent personally prepared them. 

This   conclusion is supported by the following evidence relied upon by the subpanel, which noted (1) the format of the falsified letters does not match the format   typically used by Respondent’s secretary, such as the signature line and the initials indicating who prepared the letter; (2) the properties on the electronic version of the documents indicate they were prepared at a time when   the secretary’s cell phone records show she was not in the office; (3)   Respondent’s disciplinary history reveals a pattern of attempting to place   blame on his staff for his own conduct; and (4) Respondent testified   falsely regarding a number of inconsequential issues, only to retract his testimony when ODC pointed out his contrary statements in his prior appearances.   Accordingly, we find there is clear and convincing evidence indicating Respondent   was involved in the submission of falsified documents to ODC, which is sanctionable conduct. 

(Mike Frisch)

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