April 21, 2009
Email As Evidence Of Misconduct
A South Carolina attorney was reprimanded by consent for misconduct during the course of the representation of a client in a divorce matter. The evidence against the lawyer consisted in part of email responses to client inquiries about the status of the case:
...Complainant retained respondent to represent him in a divorce action. Respondent admits that, between October 2006 and October 2007, there were periods of time when he did not return Complainant’s telephone calls. He further admits that he failed to act diligently in connection with the handling of Complainant’s domestic action.
...respondent informed Complainant via e-mail that he had spoken with the family court judge who had indicated she would sign an order approving service by publication and that the documents would be sent out the following week. This information to Complainant was premature as respondent had not presented an order to the family court judge.
...Complainant sent respondent an e-mail stating that it had been over a year since respondent had been retained. Complainant inquired whether the divorce had been finalized. Respondent replied via e-mail that “[t]he Judge has signed the order approving publication and we are in the process of serving her by publication.” This statement was a fabrication as no order of publication had been signed.
...respondent received notice from the Clerk of Court that Complainant’s case had been pending for 365 days and was subject to dismissal. Respondent failed to inform Complainant of this development. Instead, when Complainant e-mailed respondent on March 12, 2008 expressing frustration with the progress of the case, respondent responded by repeating his earlier misrepresentation about the status of the case. Respondent stated, “…the judge has approved the service by publication.” Respondent knew that this statement was completely false.
...respondent requested a status conference with the family court judge to discuss Complainant’s case and to obtain permission to serve the defendant by publication. This request was denied.
...respondent sent an e-mail to the family court judge stating that Complainant’s case had “slipped through the cracks on me.” Respondent requested additional time to serve the defendant by publication.
...respondent received a written response from the family court judge denying the request for service by publication and giving respondent thirty (30) days to effect service or the matter would be dismissed. Respondent did not inform Complainant about this development.
...respondent received notice that Complainant’s case had been dismissed. Respondent failed to inform Complainant of the dismissal. Complainant did not learn of the dismissal until May 9, 2008 when he went to the Clerk of Court’s office seeking information on the status of his case.
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