In the Matter of Cecil Duff Nolan, Jr., Respondent. Appellate Case No. 2016-002497
Submitted January 12, 2017
M. Coggiola, Disciplinary Counsel, and Barbara M. Seymour,
Deputy Disciplinary Counsel, both of Columbia, for Office of
Duff Nolan, Jr., of Stuttgart, Arkansas, pro se.
attorney disciplinary matter, the Office of Disciplinary
Counsel (ODC) and respondent have entered into an Agreement
for Discipline by Consent Agreement) pursuant to Rule 21 of
the Rules for Lawyer Disciplinary Enforcement (RLDE contained
in Rule 413 of the South Carolina Appellate Court Rules
(SCACR). In the Agreement, respondent admits misconduct and
consents to the imposition of an admonition or public
reprimand. We accept the Agreement and issue a public
reprimand. The facts, as set forth in the Agreement, are as
is licensed to practice law in Arkansas. At all times
relevant to these matters, respondent was providing or
offering to provide legal services in South Carolina.
Therefore, respondent is a lawyer as defined in Rule 2(q),
RLDE, and is subject to the disciplinary authority of this
Court and the Commission on Lawyer Conduct pursuant to Rule
8.5(a) of the South Carolina Rules of Professional Conduct,
Rule 407, SCACR.
represented intellectual property holders from Georgia. In
2009, respondent brought an infringement action on behalf of
the property holders (the plaintiffs) alleging the defendant
was selling a product in violation of the plaintiffs'
rights. The lawsuit was originally filed in federal court in
Georgia, but was removed to South Carolina because the
defendant is a South Carolina business and the alleged
violation occurred in South Carolina.
course of preparing for the litigation, respondent's
private investigators travelled to locations in South
Carolina to pose as customers in an effort to obtain evidence
to prove that the defendant was violating the intellectual
property rights of the plaintiffs. During the investigation,
respondent's investigators made false statements to the
defendant's employees and used tactics designed to prod
the employees into making statements about the product.
Respondent's investigators tape-recorded these
conversations without notice to the employees.
was unaware that secret tape-recording, pretexting, and
dissembling were in violation of the South Carolina Rules of
Professional Conduct. He acknowledges that it was incumbent upon
him to research the law in South Carolina before sending his
investigators to this state.
admits that the conduct of the investigators in secretly
tape-recording the conversations with the defendant's
employees, posing as the defendant's customers, and
coercing and manipulating the defendant's employees
violated the following Rules of Professional Conduct, Rule
407, SCACR: Rule 4.4(a) (in representing client, lawyer shall
not use means that have no substantial purpose other than to
embarrass, delay, or burden third person, or use methods of
obtaining evidence that violate the legal rights of third
person); Rule 8.4(d) (it is professional misconduct for
lawyer to engage in conduct involving dishonesty, fraud,
deceit, or misrepresentation); and Rule 8.4(e) (it is
professional misconduct for lawyer to engage in conduct
prejudicial to administration of justice). Respondent further
admits that he is responsible for the conduct of his
investigators and, therefore, he violated the following
additional provisions of the Rules of Professional Conduct:
Rule 5.3(c) (lawyer shall be responsible for conduct of
person that would be violation of Rules of Professional
Conduct if engaged in by lawyer if lawyer orders or, with
knowledge of specific conduct, ratifies conduct involved) and
Rule 8.4(a) (it is professional misconduct for lawyer to
violate Rules of Professional Conduct, knowingly assist or
induce another to do so, or do so through the acts of
admits that by his conduct he has violated the following
Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR:
Rule 7(a)(1) (it is ground for discipline for lawyer to
violate Rules of Professional Conduct or any other rules of
this jurisdiction regarding professional conduct of lawyers).
respondent's misconduct warrants a public reprimand.
Accordingly, we accept the Agreement and publicly ...