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In re Emery

Supreme Court of South Carolina

April 19, 2017

In the Matter of Melanie Anne Emery, Respondent. Appellate Case No. 2017-000608

          Submitted April 4, 2017

          Lesley M. Coggiola, Disciplinary Counsel, and Barbara M. Seymour, Deputy Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel.

          J. Steedley Bogan, Esquire, of Bogan Law Firm, of Columbia, for respondent.

          PER CURIAM

         In this attorney disciplinary matter, respondent and the Office of Disciplinary Counsel (ODC) 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 the imposition of a public reprimand. She further agrees: 1) to pay the costs incurred in the investigation and prosecution of this matter within thirty (30) days of the imposition of discipline; 2) to complete the Legal Ethics and Practice Program Trust Account School within one (1) year of the imposition of discipline; and 3) to refund $2, 995.00 to Client B, $2, 995.00 to Client C, and $3, 000.00 to Client E within ninety (90) days of the imposition of discipline. We accept the Agreement and issue a public reprimand with conditions as specified in the conclusion of this opinion. The facts, as set forth in the Agreement, are as follows.

         Facts

         Respondent is licensed to practice law in South Carolina, New York, Maryland, and the District of Columbia. Prior to her admission in South Carolina in 2013, respondent was employed by three firms in other states, primarily conducting real estate closings. Since 2013, respondent has operated a solo practice, Emery Law, from an office in Myrtle Beach. Respondent also maintained office space for Emery Law in New York, but she performed little work there. Emery Law had no non-lawyer employees, but was, instead, staffed by contract paralegals employed by Precision Paralegal, a non-lawyer-owned company. Emery Law also used the support services of First Legal Net, a non-lawyer-owned company contracted through Precision Paralegals. During the times relevant to this Agreement, respondent had no partners or associates at Emery Law. Her practice in South Carolina has consisted of residential and commercial real estate closings and mortgage loan modification matters.

         Matter I

         During the time relevant to these complaints, respondent operated a website for Emery Law. Respondent admits that she retained a website professional to prepare the content of her website without discussing the Rules of Professional Conduct with him or reviewing the website before it was disseminated. The website professional developed the website content by cutting and pasting from other law firm websites which resulted in a number of inaccurate representations and improper statements.

         Respondent acknowledges the following errors on her law firm website:

1. the website referred to "attorneys" and "lawyers" when in fact respondent was the only attorney at Emery Law;
2. the website claimed "over 12 years of experience" and "fifteen years combined experience" in reference to respondent. Although respondent had been admitted to practice for twelve years, she had only practiced law for about eight years prior to becoming admitted in South Carolina;
3. the website included a form of the word "expert, " although respondent was not a certified specialist; and
4. the website advertised for "wrongful foreclosure lawsuits" when respondent had no experience in, or intention to accept, cases related to litigation.

         Matter II

         Respondent maintained a law firm profile on www.facebook.com. Both respondent and a paralegal employed through Precision Paralegal created content for the Facebook page. Respondent did not adequately monitor the posts made by the contract paralegal. Respondent acknowledges the following errors on her Facebook page:

1. the paralegal created Facebook posts congratulating respondent's clients after each real estate closing. Respondent did not have her clients' permission to post their names and other information about their legal matters on Facebook.
2. the paralegal included unsubstantiated comparative descriptions of respondent and her legal services such as "best;" and
3. the paralegal advertised special discounted rates for respondent's legal fees without disclosing whether or not those rates included anticipated costs.

         Matter III

         In 2013, respondent signed a contract with Friedman Law, a New York law firm, to accept referrals of mortgage loan modification cases. In connection with her association with Friedman Law, respondent received client referrals from an internet marketing company. Respondent paid for this service based on the number of potential clients referred to her, not based on the number of referred clients who ultimately hired her. Respondent charged her clients a "flat" fee for loan modification cases.

         In this marketing campaign, advertisements were placed on the internet with a link to respondent's website. A potential client would access the website and complete an online questionnaire. Regardless of the residence of the potential client or the location of the property, the case would be assigned to Emery Law as part of the Friedman Law network. A non-lawyer employee of the internet marketing company or Friedman Law would review the completed questionnaire, send a solicitation or introduction email to the potential client, and conduct an initial telephone consultation with the potential client. That contact would include discussing the scope of the representation and fees, and providing the client with the fee agreement and electronic payment authorization forms on Emery Law letterhead. Once the forms were signed and initial payment received, the client's information would be sent to non-lawyers working on behalf of Emery Law employed by Friedman Law, Precision Paralegal, or First Legal Net.

         Upon receipt of client information, a non-lawyer employee of Friedman Law, Precision Paralegal, or First Legal Net would contact the client by telephone for a "quality control interview" to ensure that the client qualified for a loan modification. These non-lawyers would then set up the file and contact the client to complete necessary forms, request financial loan documentation, and schedule a telephone conference with a representative of the lender. In their communications with respondent's clients and potential clients, the non-lawyers included Emery Law in their signature blocks and used documents with Emery Law letterhead.

         In connection with her association with Friedman Law, respondent accepted cases in states where she is not licensed to practice law. Six of those clients filed disciplinary complaints. Other than some of the Precision Paralegal employees who physically worked in her office, respondent had no direct supervision of the non-lawyers who worked on these clients' cases. Respondent was rarely copied on emails between the non-lawyers and these clients or internal emails among the non-lawyers. Respondent supervised their work by reviewing their notes, documents, and some emails on a shared electronic case management system.

         Review of these clients' files reveals that, for the most part, the non-lawyers worked diligently to try to secure modifications of the mortgage loans and adequately communicated with the clients. In each of these cases, however, some issue or complication resulted in the client's dissatisfaction and, ultimately, the disciplinary complaints. Respondent had no personal, direct communication with these clients during their representation except when the cases reached the point at which the clients complained about her services or demanded refunds of their fees.

         With regard to the conduct of the non-lawyers working on her behalf in these cases, respondent admits the following misconduct:

1. the non-lawyers presented the fee agreement and discussed the scope of the representation and the fee structure to the clients before respondent reviewed the file and accepted the cases. The written fee agreement was confusing and self-contradictory; it also contradicted statements made to the clients by some of the non-lawyers and subsequent emails and documents sent to the clients, particularly with regard to available legal services, fee refunds, and termination of the representation;
2. when issues arose about how the clients' cases were progressing, the non-lawyers discussed those issues and made decisions amongst themselves then advised the clients without respondent's input;
3. the non-lawyers negotiated the terms of loan modifications with lender representatives, sought continuances or stays of sales of properties from lenders' counsel and courts, and otherwise provided legal services to the clients without review or additional effort by respondent. In one case, a non-lawyer (referred to as a "bankruptcy specialist") assisted a client in preparing a pro se bankruptcy petition and advised her about filing procedures. The petition filed by the client was deficient and did not meet the requirements of the Bankruptcy Court. In another case, a non-lawyer advised the client to stop making mortgage payments during the modification negotiations ...

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