Friday, October 9, 2020

Bar Discipline Not Impacted By "Inexcusable" Delay

An "inexcusable delay" in prosecution did not prevent the South Carolina Supreme Court from disbarring the attorney. 

Following a hearing, a panel of the Commission on Lawyer Conduct (the Panel) recommended Respondent receive a six-week definite suspension in light of Respondent's repayment of the missing client funds and unexplained delay by the Office of Disciplinary Counsel (ODC) in prosecuting this matter. Although we find the inordinate delay by ODC troubling, we nevertheless disbar Respondent.

The attorney had been placed on interim suspension in November 2013 but reinstated in December 2013.

Charges followed in May 2019. 

He admitted the misconduct.

As to delay

Even though the investigation into Respondent's financial misconduct was complex and time-consuming, ODC's delay in prosecuting this matter is inexcusable. ODC has offered no specific explanation, much less a reasonable one, for the five-and-a-half year delay between the authorization and the filing of Formal Charges. However, the question remains to what extent, if any, this unjustified delay mitigates the gravity of Respondent's financial misconduct. The parties have not cited, and our research has not revealed, any South Carolina case on point.

There is now

We find unjustified delay on the part of ODC may properly be considered as a mitigating factor where a Respondent demonstrates unfair prejudice as a result thereof. However, we find Respondent did not suffer any prejudice under the facts of this case. To the contrary, during the pendency of these proceedings, Respondent benefitted by continuing to practice law and practicing without the concomitant responsibility of overseeing his trust account, as this Court had reassigned that task to his associate. Further, it does not appear Respondent suffered any public opprobrium or detriment to his practice, as Respondent repeatedly noted that more than $21.5 million passed through his trust account since 2013.

To be clear, we do not condone, in any respect, the inordinate delay caused by ODC in this case. However, we cannot ignore Respondent's longstanding pattern of using money that was not his from his trust account, and we conclude this misconduct warrants disbarment.

Justice Few concurred

First, in my opinion, this case has absolutely nothing to do with Rule 417, SCACR. Mr. Wern intentionally took his clients' money out of his trust account, and he knew doing so was stealing. He directed the withdrawals from the account with full knowledge of the crimes he was committing, and at other times he delayed legitimate withdrawals to cover up his crimes.

Bravo Justice Few

To say merely this is to blame the current disciplinary counsel for our failure, and effectively to "condone" our own lack of supervision over the professionals we employ. The delay is ours, and we must take the necessary steps—through rulemaking, staffing, and other means—to improve the operations of ODC to prevent this delay from ever happening again.

I dearly wish other courts would acknowledge their responsibility for systemic delay.

You know who you are. 

Justice Hearn dissented

I respectfully dissent as to the decision to disbar Respondent because I believe that sanction is excessive, particularly in light of Respondent's lengthy, unblemished disciplinary history as well as the prejudice he sustained due to the delay by the Office of Disciplinary Counsel (ODC) in resolving this matter. Accordingly, I would impose a one-year suspension.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/10/an-inexcusable-delay-in-prosecution-did-not-prevent-the-south-carolina-supreme-court-from-disbarring-the-attorney.html

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