Tuesday, November 29, 2011
The South Carolina Supreme Court has imposed a prospective suspension of six months on the following agreed facts:
In 2005, respondent and his wife separated and, in 2007, became involved in a contentious divorce. Between July 2007 and February 2008, respondent was charged with criminal domestic violence, two counts of trespassing, second degree burglary, stalking, and simple assault. As a result of these arrests, respondent was placed on interim suspension...The criminal charges involved matters with respondent's former wife and former sister-in-law.
All charges against respondent were later dismissed with prejudice and the solicitor issued a letter stating that, after thorough and complete investigation, he believed that the matters did not rise to the level of criminal wrongdoing and that all of the matters should be dealt with by the Family Court.
Respondent denies he committed any crimes as alleged by his former wife and former sister-in-law. However, he admits he could have used better judgment.
In 2010, after the criminal charges were dismissed, respondent filed a pro se action against the City of Columbia alleging false arrest. In the course of representing himself in the matter, respondent subpoenaed Witness A, a former neighbor and long-time friend of both he and his former wife, to give a deposition. Witness A was not a witness to any of the matters out of which the criminal charges against respondent arose; however, Witness A had provided an affidavit in support of respondent's former wife during the divorce proceeding. Respondent also subpoenaed two other former neighbors who had supported his former wife during the divorce proceedings. Respondent admits he subpoenaed the three witnesses to take their depositions as he believed that they might have information regarding the allegations of criminal wrongdoings made by his former wife. Respondent fails to explain why the testimony of any of these witnesses was pertinent to his suit against the City.
Over the course of two days, respondent deposed Witness A for over five hours, including breaks. Respondent admits he asked improper questions during the deposition. He further admits that there were times when he talked over the deponent and there were instances where he did not let Witness A finish his answer.
In addition, respondent admits he asked a number of improper questions of Witness A. In particular, he asked Witness A about his sexual orientation and whether he had been tested for HIV. He also asked Witness A whether he had Alzheimer's Disease when the witness' recollection was incomplete. Respondent admits the question should not have been asked in this fashion.
Respondent regrets and apologizes for his questions during the deposition. He submits that the stress of his divorce and of deposing a former friend who had sided with his former wife in their divorce caused his emotions to get the better of him.
Respondent has since signed a Settlement Agreement and Release and Stipulation of Dismissal concluding the matter against the City of Columbia and its police department.
The court noted:
Although we accept the Agreement, the Court is deeply concerned about respondent's emotional state and his ability to execute sound judgment. As evidenced by the facts presented in the Agreement and respondent's testimony during oral argument, respondent is obsessed with regaining his reputation in the community and with his ex-wife from whom he has been separated and/or divorced for approximately six years. Further, during argument, he initially refused to accept any responsibility with regard to the instances which led to his several arrests and, instead, characterized himself as the victim in each of the situations. Consequently, we order respondent to continue psychological counseling for two (2) years, require respondent's counselor to file quarterly reports addressing respondent's progress with the Commission, and authorize the Investigative Panel of the Commission to extend the counseling requirement at the conclusion of the two (2) year period if it deems it necessary.
The suspension was imposed prospectively because the deposition misconduct took place during the interim suspension. Given the allegations in the first matter, it is unfortunate that the attorney's last name is Hammer. (Mike Frisch)