Opinion
Appellate Case Nos. 2021-001130 2022-000269
08-02-2022
In the MATTER OF David Mark FOSTER, Respondent
ORDER
On September 7, 2021, this Court granted a consent petition and placed Respondent on interim suspension. In re Foster , 434 S.C. 222, 863 S.E.2d 464 (2021). On October 5, 2021, the Office of Disciplinary Counsel (ODC) filed a verified petition for rule to show cause alleging Respondent violated this Court's order of interim suspension and Rule 30, RLDE, Rule 413, SCACR, by making misleading statements to former clients about the status of his practice and his inability to practice law. On December 9, 2021, this Court declined to invoke the extreme measure of contempt at that time. However, in doing so, the Court held the matter in abeyance for future consideration and expressly declined to make any findings as to whether Respondent's conduct constituted professional misconduct. See, e.g. , Rule 8.4(d), RPC, Rule 407, SCACR (prohibiting conduct involving dishonesty or misrepresentation).
In this petition, ODC presented highly credible evidence that a month after Respondent was suspended, a former client asked Respondent whether it was true that Respondent had been placed on interim suspension and was no longer with his former law firm. Respondent avoided the first question and failed to acknowledge his suspension, replying instead "I'm no[ ] longer with that firm. I still have my practice going[.] I took a month off for some personal time." In a separate exchange, another former client contacted Respondent about an upcoming court appearance, to which Respondent replied, "I'll be in touch this week when I get back to the office." There is no indication Respondent ever disclosed his interim suspension to either of these former clients.
On March 7, 2022, ODC filed a second verified petition for a rule to show cause alleging Respondent again violated this Court's September 7, 2021 order of interim suspension and Rule 30, RLDE, by willfully engaging in the unauthorized practice of law while on interim suspension. On April 7, 2022, we issued an order directing Respondent to show cause why he should not be held in civil and/or criminal contempt for engaging in the unauthorized practice of law while on interim suspension for the conduct alleged in both the October and the March contempt petitions filed by ODC. This Court conducted a hearing in these matters on June 6, 2022. Respondent personally appeared and was accompanied by counsel.
During the hearing, Respondent conceded the facts as alleged by ODC, admitting that despite being placed on interim suspension on September 7, 2021, he thereafter contacted various parties to assist a former client (Client) in addressing a legal problem. Specifically, Client, a resident of North Carolina, retained Respondent to represent her in connection with a speeding ticket she received while visiting the City of Greenville, South Carolina, in September 2020. On April 29, 2021, Respondent told Client her ticket had been dismissed. However, apparently due to a clerical error, the ticket was not marked as dismissed, and Client was subsequently ticketed in North Carolina for driving under suspension on November 27, 2021. Unaware that Respondent had been suspended from the practice of law months earlier, Client contacted Respondent for help rectifying the situation.
Respondent admits he thereafter exchanged numerous text messages and phone calls with Client in his efforts to assist her resolving the outstanding ticket. Respondent further admits contacting the ticketing officer, the City of Greenville Municipal Court, and even meeting in person with a municipal judge on Client's behalf in December 2021 to request issuance of an Ishmell order, all while Respondent was on interim suspension. Throughout these actions and communications with Client and municipal court personnel, Respondent never informed Client, or anyone else, that he was suspended from the practice of law and could no longer assist Client with her matter. To the contrary, Respondent made numerous affirmatively misleading statements, including telling Client he would call her when he was "done with court," reminding Client he was not licensed to practice law in North Carolina (implicitly suggesting he was authorized to practice in South Carolina), referring to himself as Client's attorney, and inviting others to contact him "at his office."
Ishmell v. S.C. Highway Dep't , 264 S.C. 340, 215 S.E.2d 201 (1975) (discussing the procedure regarding motions to reopen traffic cases).
At the hearing, Client testified she ultimately had to hire another lawyer in South Carolina and a lawyer in North Carolina to resolve the situation and have her license reinstated in North Carolina. Client also testified her traveling sales job requires her to be able to drive to sales calls, and as a result of her suspended license, she missed several weeks of work and almost lost her job.
The telephone number Respondent referred to as his "office" number is listed in this Court's Attorney Information System as Respondent's mobile number. Further, at the hearing before this Court, Respondent testified that since being suspended from the practice of law, he has worked construction.
Despite admitting this conduct, Respondent nevertheless argues he did not willfully violate this Court's order placing him on interim suspension because he was simply "communicating" on behalf of his former client, which he did not believe to constitute the practice of law. We reject this argument and find Respondent's actions constituted the practice of law. See In re Lapham , 405 S.C. 582, 582–83, 748 S.E.2d 779, 780 (2013) (holding an attorney in criminal and civil contempt for, among other things, violating the order of interim suspension by contacting court personnel on behalf of a former client).
The moment this Court entered an order placing Respondent on interim suspension, he was no longer authorized to take any action on behalf of a client. See Rule 410(d), SCACR (providing only persons in good standing may engage in the practice of law); Rule 410(i)(1)(C)(iii) (providing a person on interim suspension is not in good standing). A suspended attorney has an affirmative duty to provide notice of his suspension to current clients, opposing counsel, and the courts, as well as to remove all indicia of the practice of law. Rule 30(a)-(c), (h), RLDE, Rule 413, SCACR. Further, when Respondent communicated with Client regarding further assistance with her legal problem, there arose an affirmative duty for Respondent to inform Client that he was suspended from the practice of law and could not take any actions to address any legal problems on her behalf. Cf. Rule 30(a), RLDE, Rule 413, SCACR (providing a lawyer on interim suspension must promptly notify clients of the lawyer's suspension and consequent inability to act as an attorney). By not making this required affirmative disclosure when contacted by Client, Respondent implied to Client that he still represented her and that he was able to continue serving as her lawyer in connection with her traffic ticket. Exacerbating this failure to disclose his suspension are the numerous misleading statements Respondent made to Client and the Greenville Municipal Court suggesting he was authorized to practice law generally and to represent Client specifically. These deceptive statements, coupled with Respondent's misleading comments set forth in the prior contempt petition, constitute a clear pattern of deception and demonstrate the willful and deliberate nature of Respondent's attempts to mislead others about his interim suspension. We therefore find Respondent has willfully engaged in the unauthorized practice of law while on interim suspension. State v. Bevilacqua , 316 S.C. 122, 129, 447 S.E.2d 213, 217 (Ct. App. 1994) (establishing that an act is considered willful if it is "done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done") (citation omitted).
Accordingly, we find Respondent guilty of criminal contempt of the Supreme Court of South Carolina beyond a reasonable doubt. We sentence Respondent to confinement for a period of thirty days. This sentence is suspended upon the condition that Respondent pay $554 in restitution to Client and a $446 fine to this Court within thirty days of the date of this Order. Respondent is warned that a violation of the conditions of suspension may result in his incarceration for the entire thirty days of the sentence.
Respondent shall pay restitution to Client in certified funds and provide this Court with proof restitution was made within ten days of payment.
s/ Donald W. Beatty, C.J.
s/ John W. Kittredge, J.
s/ Kaye G. Hearn, J.
s/ John Cannon Few, J.
James, J., not participating.