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In re Harper

Supreme Court of South Carolina

September 9, 2015

In the Matter of Christopher Gerald Harper, Respondent

Submitted August 20, 2015.

Appellate Case No. 2015-000932.

Lesley M. Coggiola, Disciplinary Counsel, of Columbia, for Office of Disciplinary Counsel.

Christopher Gerald Harper, of Durham, North Carolina, Pro se.

TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.

OPINION

PER CURIAM:

This attorney disciplinary matter is before the Court pursuant to the reciprocal disciplinary provisions of Rule 29 of the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court Rules (SCACR).

Respondent was admitted to the North Carolina Bar on August 23, 1991, and to the South Carolina Bar on November 12, 1991. On November 15, 2014, respondent was disbarred from the North Carolina Bar for misconduct involving several instances of misappropriation of client funds, and failing to conduct required trust account reconciliations and maintain accurate financial records. See The North Carolina State Bar v. Harper, Order of Discipline, Case No. 13 DHC 29 (November 15, 2014) (attached).

[414 S.C. 135] Respondent failed to inform the Office of Disciplinary Counsel (ODC) of his discipline in North Carolina as required by Rule 29 (a), RLDE. Once ODC learned of respondent's disbarment, it filed a certified copy of the North Carolina disciplinary order with the Court. See Rule 29(a), RLDE . As required by the provisions of Rule 29(b), the Clerk of Court provided ODC and respondent with thirty (30) days in which to assert whether identical discipline should not be imposed in this state. ODC filed a return stating it had no information that would indicate the imposition of identical discipline was unwarranted. Respondent did not file a return.

Since the record of the disciplinary proceeding in North Carolina comports with due process, respondent does not assert that the imposition of identical discipline in this state is unwarranted, and the Court has disbarred lawyers for similar misconduct, the Court finds that reciprocal discipline is appropriate and hereby disbars respondent from the practice of law in South Carolina. See Rule 29(d), RLDE; see also In the Matter of Auman, 413 S.C. 181, 775 S.E.2d 384 (S.C. S.Ct. filed 2015) (Shearouse Adv. Sh. No. 29 at 26);

Page 385

In the Matter of Newton, 402 S.C. 365, 741 S.E.2d 23 (2013).

Within fifteen (15) days of the date of this opinion, respondent shall file an affidavit with the Clerk of Court showing that he has complied with Rule 30 of Rule 413, SCACR, and shall also surrender his Certificate of Admission to the Practice of Law to the Clerk of Court.

DISBARRED.

TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.

[414 S.C. 136] ORDER OF DISCIPLINE

THIS MATTER was heard on May 22-23, 2014, July 28, 2014, and September 25-26, 2014 by a hearing panel (" panel" ) of the Disciplinary Hearing Commission (" DHC" ) composed of Steven D. Michael, Chair; Donald C. Prentiss; and, Michael S. Edwards pursuant to 27 N.C.A.C. 1B § .0114 of the Rules and Regulations of the North Carolina State Bar. Barry S. McNeill, Deputy Counsel, represented Plaintiff, the North Carolina State Bar. Eric C. Michaux represented Defendant at the first two days of the hearing on May 22-23, 2014, and subsequently withdrew with permission of the panel. Defendant, Christopher G. Harper, represented himself upon the resumption of the hearing on July 28, 2014 and September 25-26, 2014.

Based upon the pleadings and evidence introduced at the hearing, the panel hereby finds by clear, co gent and convincing evidence the following

FINDINGS OF FACT

1. Plaintiff, the North Carolina State Bar (" State Bar" ), is a body duly organized under the laws of North Carolina and is the proper party to bring this proceeding under the authority granted it in Chapter 84 of the General Statutes of North Carolina, and the Rules and Regulations of the North Carolina State Bar (Chapter 1 of Title 27 of the North Carolina Administrative Code).

2. Defendant, Christopher G. Harper (" Harper" or " Defendant" ), was admitted to the North Carolina State Bar on August 23, 1991, and is, and was at all times referred to herein, an attorney at law licensed to practice in North Carolina, subject to the laws of the State of North Carolina, the Rules and Regulations of the North Carolina State Bar and the Rules of Professional Conduct.

3. During all of the relevant periods referred to herein, Defendant was engaged in the practice of law in the State of North Carolina and maintained a law office in Durham, Durham County, North Carolina.

[414 S.C. 137] 4. Defendant maintained a trust account at Wells Fargo Bank (formerly Wachovia) with an account number ending in No. -8883 (hereinafter " bust account" ).

5. Defendant maintained a business operating account at Wells Fargo Bank (formerly Wachovia) with an account number ending in No. -5187 (hereinafter " operating account" ).

FINDINGS OF FACT REGARDING FIRST CLAIM FOR RELIEF

6. On January 13, 2012, William K.. Graham (" Graham" ) of Versailles Realty Partners, L.L.C. (" VRP" ), engaged Defendant to complete a real estate transaction for his purchase of Mary L. Henry's 1/15 interest in property located at 511 Dupree Street, Durham, North Carolina (" 511 Dupree Street" ).

7. VRP agreed to purchase the property interest from Ms. Henry for $3,000, and to pay a fee to Defendant of $800 for his legal services to complete the transaction.

8. On or about January 17, 2012, Graham paid Defendant via a check in the amount of $3,800, which Defendant acknowledged receiving

Page 386

as " earnest money" to be held in " escrow" until the deed was returned from Ms. Henry for the purchase of her interest in the property.

9. Instead of depositing and holding the earnest money and fee in his trust account, Defendant cashed the check from Graham and utilized the proceeds for his own benefit.

10. On February 8, 2012, Defendant forwarded to Ms. Henry a contract signed by Graham, a quitclaim deed concerning " 511 Dupree Street" to be signed by Ms. Henry, and a settlement statement showing that Ms. Henry would receive $2,000 of the $3,000 paid by Graham, and that Defendant would receive $1,000 as his attorney's fee from Ms. Henry.

11. Defendant requested that Ms. Henry sign and return the enclosed documents to Defendant's office.

12. On April 23, 2012, Defendant issued trust account check number 2823 payable to himself in the amount of $3,000, which Defendant utilized that same date to purchase a cashier's check in the amount of $3,000 payable to " Mary L. Henry."

[414 S.C. 138] 13. On check number 2823, Defendant attributed the withdrawal on the memo line to " Mary L. Henry."

14. At the time Defendant made the withdrawal of $3,000 from his trust account via check number 2823 on April 23, 2012, Defendant was not holding and had not deposited any funds in his trust account for William K. Graham, Graham's VRP, or Ms. Henry.

15. Ms. Henry declined to sign the quitclaim deed of her interest to Graham.

16. Defendant never forwarded the cashier's check to Ms. Henry.

17. On June 4, 2012, Graham filed a grievance against Defendant with the State Bar claiming that Defendant had failed to complete the real estate transaction between VRP and Ms. Henry, and that Defendant would not refund the money Graham had provided to fund the transaction.

18. A State Bar investigator contacted Defendant on June 6, 2012 and informed him that the State Bar had received a complaint from Graham about the real estate transaction involving Ms. Henry's interest in the property located at 511 Dupree Street.

19. Following the State Bar investigator's contact with Defendant, Graham approached Defendant on June 6, 2012 and demanded the return of VRP's $3,800 in entrusted funds.

20. Using the uncashed cashier's check in the amount of $3,000 referenced in Paragraph 12 above, on June 6, 2012 Defendant purchased another cashier's check from Wells Fargo Bank on West Club Boulevard in Durham, North Carolina in the amount of $3,800 payable to VRP.

21. On June 6, 2012, Defendant paid to Graham the purported refund of the $3,800 using the cashier's check in the amount of $3,800 payable to VRP.

22. Defendant never replaced the $3,000 he withdrew from his trust account to purchase the cashier's check payable to Ms. Henry.

23. At the time Defendant made the withdrawal of the $3,000 from his trust account referenced in Paragraph 12 [414 S.C. 139] above, Defendant was not holding and had not deposited any funds in his trust account for Graham, VRP, or Ms. Henry.

24. Defendant made inconsistent statements to the State Bar investigator about whether he had placed the $3,800 in entrusted funds from VRP in his trust account or had cashed the check from VRP.

25. Defendant's bank records, including the bank records for his trust account and operating account, showed that Defendant never deposited the $3,800 check from VRP in either account.

26. Defendant eventually admitted to the State Bar investigator that he had cashed the $3,800 check from Graham's VRP.

27. Defendant's trust account records showed that Defendant used entrusted settlement funds belonging to Defendant's client Courtney Tanner to purchase the cashier's check in the amount of $3,000 payable to Ms. Henry, which Defendant eventually used to refund the $3,800 to Graham's VRP.

Page 387

28. Courtney Tanner did not authorize Defendant to utilize his $3,000 in entrusted settlement funds to purchase the cashier's checks which were eventually used to refund the $3,800 to Graham's VRP.

29. Defendant misappropriated $3,000 from VRP and then misappropriated $3,000 from Tanner to cover the misappropriation from VRP.

FINDINGS OF FACT REGARDING SECOND CLAIM FOR RELIEF

30. Henry L. McGhee (" McGhee" ) retained Defendant on or about August 21, 2009 to represent him in connection with injuries he sustained in a motor vehicle accident that occurred on August 17, 2009.

31. On August 21, 2009, McGhee signed a contingent fee agreement under which Defendant would receive 33 1/3 % of any settlement.

32. Defendant and the insurance company settled McGhee's claim for $3,500, which Defendant deposited in his trust account on February 2, 2010.

[414 S.C. 140] 33. Under Defendant's contingent fee agreement with McGhee, on February 3, 2010 Defendant disbursed to himself, via check number 2761 from his trust account, his contingent fee of $1,166.65.

34. McGhee was entitled to $2,333.35 of the settlement proceeds deposited in Defendant's trust account.

35. Defendant made a disbursement from his trust account to McGhee of $550 via check number 2762 on February 12, 2010, noting " Medpay" on the memo line of the check.

36. Defendant had received a check from Progressive Universal Insurance Company, issued October 27, 2009, in the amount of $750 for McGhee's medical expenses.

37. Defendant's client ledger card for McGhee did not reflect the deposit of the $750 into Defendant's trust account on behalf of McGhee.

38. On February 12, 2010, McGhee signed a settlement statement acknowledging receipt of check number 2762 from Defendant for $550.

39. Although Defendant designated the $550 to McGhee as a disbursement from the $3,500 February 2, 2010 settlement proceeds, the $550 to McGhee should have been attributed to the $750 " Medpay" proceeds received from Progressive Universal Insurance Company on or about October 27, 2009.

40. Defendant made a disbursement from his trust account to McGee of $500 via check number 2810 on April 21, 2010.

41. Except for the disbursement referenced in Paragraph 40 above, Defendant made no other disbursements from his trust account by check payable to McGhee of the funds to which McGhee was entitled under the settlement.

42. Between March 10, 2010 and April 29, 2010, Defendant made disbursements payable to himself totaling $1,145 from McGhee's entrusted settlement funds via the following checks: [414 S.C. 141]

CHECK NUMBER

DATE

AMOUNT

2765

March 10, 2010

$200

2766

March 17, 2010

$400

2779

April 9, 2010

$25

2811

April 21, 2010

$100

2768

April 22, 2010

$120

2769

April 24, 2010

$100

2770

April 28, 2010

$200

Page 388

43. According to Defendant's client ledger card for client " Henry McGhee," on April 28, 2010 there remained a balance of $138.35 in Defendant's trust account of the settlement funds to which McGhee was entitled.

44. Defendant testified that the $138.35 was his earned money, but that he paid McGhee the $138.35 in cash.

45. Defendant testified that all the checks made payable to himself on McGhee's client ledger card, except the check for Harper's fee of $1,166.65, were cashed, with the cash being given to McGhee.

46. Defendant admitted that he did not obtain receipts from McGhee and does not have any documentation of the cash given to McGhee.

47. There was no documentation or notation of the $138.35 alleged cash payment to McGhee on Defendant's client ledger card for McGhee.

48. On Defendant's Settlement Statement for client " Henry McGhee," Defendant made a notation by asterisk that the balance of the settlement owed to McGhee ($2,333.35) was to be " [held] in trust and disburse per client[; ] also apply to additional cases[,] i.e. DWI Roxboro" .

49. In 2010, McGhee did not retain Defendant to represent him on a driving while impaired charge in Person County, North Carolina courts.

[414 S.C. 142] 50. In 2010, Defendant did not represent McGhee on a driving while impaired charge in Person County, North Carolina courts.

51. Other than representing McGhee-in connection with the settlement of his personal injury claim during 2009-2010, Defendant did not perform additional legal services for McGhee or bill McGhee for such services during 2009-2010.

52. Defendant never provided McGhee a copy of the settlement statement showing the disbursements related to the $3,500 settlement funds.

53. On Friday, May 7, 2010, McGhee and his girlfriend met with Defendant at Defendant's office in Durham to receive a payment from the settlement proceeds referenced in Paragraph 32 above.

54. On May 7, 2010, Defendant wrote a check payable to McGhee in the amount of $500, and gave McGhee the check.

55. Defendant wrote the check to McGhee, referenced in Paragraph 54 above, on his operating account, not from his trust account into which he had deposited McGhee's settlement funds.

56. McGhee testified that on one or two occasions, Defendant provided him cash disbursements in the amount of $100 to $200.

57. McGhee testified that he only received from Defendant approximately $1,200 of the $2,333.35 in entrusted settlement proceeds to which he was entitled, including the $500 disbursement to him from Defendant's trust account on April 21, 2010, the $500 from Defendant's operating account on May 7, 2010, and $100 to $200 in cash provided to McGhee from Defendant.

58. The hearing panel finds McGhee's testimony, referenced in Paragraphs 56 and 57 above, to be credible.

59. Defendant disbursed to McGhee no more than $1,750 of the $4,250 total proceeds Defendant ...


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