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In re Jordan

Supreme Court of South Carolina

August 30, 2017

In the Matter of William Ashley Jordan, Respondent. Appellate No. 2012-212593

          Heard March 2, 2016

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

          A. Camden Lewis and Ariail Elizabeth King, both of Lewis Babcock L.L.P., of Columbia, for Respondent.

          PER CURIAM:

         This attorney disciplinary matter arises out of two separate sets of formal charges filed by the Office of Disciplinary Counsel against William Ashley Jordan. Disciplinary Counsel filed the first set of formal charges with the Commission on Lawyer Conduct on January 7, 2011. The first charges allege primarily that Mr. Jordan did not properly manage funds owed to clients or co-counsel or keep adequate records of those funds between 1999 and 2005. As to those charges, a hearing panel of the Commission recommended to this Court that Mr. Jordan receive a public reprimand, and Mr. Jordan agrees a public reprimand is an appropriate sanction.

         In October 2012, while the panel's recommendation for the first set of charges was pending before this Court, Disciplinary Counsel received a new complaint alleging Mr. Jordan committed more serious misconduct between 2009 and 2012. The crux of the new complaint was-in seven different cases-Mr. Jordan entered into a fee-sharing arrangement with another attorney, did not disclose the arrangement to the client, collected a fee for the case, and deposited the entire fee in his law firm's accounts instead of paying co-counsel's share of the fee. After considering the second set of charges, the panel recommended to this Court that Mr. Jordan be disbarred.

         Disciplinary Counsel requested we stay our decision on the first set of charges pending an investigation of the second set. Because we granted the stay, we have not previously addressed the first set of charges. Therefore, although the sanction we ultimately impose is based on the misconduct in the second set of charges, we have necessarily included in this opinion the details of the misconduct in the first set of charges.

         I. Facts and Procedural History

         Disciplinary Counsel filed the first set of formal charges on January 7, 2011. On March 1, 2011, Mr. Jordan filed his response to the charges, and on March 17, 2011, he filed a corrected response. On December 5, 2011, Mr. Jordan appeared before the hearing panel for a full evidentiary hearing on the first set of charges.[1] On July 12, 2012, the hearing panel issued its report recommending a public reprimand based on the following misconduct.

         In the Client A case, the panel found Mr. Jordan paid himself more attorney's fees than he was entitled to receive pursuant to his fee-sharing arrangement with two attorneys, improperly negotiated a check for attorney's fees from his trust account to his firm account before the funds had been collected by his bank, failed to pay his co-counsel's shares of the fee from a settlement installment for approximately two years, and-after finally paying his co-counsel-disbursed $49, 333.32 more from his trust account than he received on behalf of the client. The panel found this conduct violated Rule 1.15, RPC, Rule 407, SCACR, and Rule 417, SCACR. The panel also found Mr. Jordan failed to supervise a nonlawyer assistant in violation of Rule 5.3, RPC, Rule 407, SCACR. Although Disciplinary Counsel charged Mr. Jordan with violating Rule 8.4(d), RPC, Rule 407, SCACR, the panel found Mr. Jordan did not engage in dishonest or fraudulent conduct.

         In the Client B case, the panel found Mr. Jordan-while holding funds in trust for a deceased client-failed to ensure his associate opened an estate for the disbursement of the funds. Mr. Jordan transferred the funds through several trust accounts over the course of four years but could not produce an accounting of the transfers. Mr. Jordan's bookkeeper "mistakenly transferred" some of the client's funds to cover a shortage of funds held in trust for another client, and Mr. Jordan could not account for the remaining funds at the time his law firm dissolved. After improperly holding the funds for over six years, Mr. Jordan restored the funds to his trust account and paid the funds to the Lawyers' Fund for Client Protection. The panel found Mr. Jordan violated Rules 1.1, 1.3, 1.15, and 5.1, RPC, Rule 407, SCACR, and Rule 417, SCACR. The panel also found Mr. Jordan failed to properly supervise his bookkeeper in violation of Rule 5.3, RPC.

         In the Client C case, the panel found Mr. Jordan paid himself more attorney's fees than he was entitled to receive pursuant to his fee-sharing arrangement with co-counsel, transferred funds held in trust for his client but failed to account for $382.21 of those funds, and disbursed more funds to the client than he deposited in the trust account. Mr. Jordan's bookkeeper covered the overpayment using another client's funds. The panel found Mr. Jordan violated Rules 1.1 and 1.15, RPC, and Rule 417, SCACR.

         In the Client D case, the panel found Mr. Jordan and his co-counsel agreed to reduce their fee from forty percent to approximately thirty-six percent for settling the case. After receiving the settlement money, Mr. Jordan issued a check for the full attorney's fee to his firm, despite his agreement to split the fees evenly with co-counsel. Mr. Jordan later overpaid his co-counsel by paying her half of a forty-percent fee, rather than the agreed-upon thirty-six percent fee. Mr. Jordan transferred funds from Client E's account ledger in his trust account to make up for the overpayment. The panel found Mr. Jordan violated Rules 1.3 and 1.15, RPC, and Rule 417, SCACR. The panel also found Mr. Jordan failed to properly supervise a nonlawyer assistant in violation of Rule 5.3, RPC.

         In the Client E case, the panel found Mr. Jordan agreed to share fees equally with his co-counsel. After settling the case, Mr. Jordan deposited his half of the $18, 000 attorney's fee in his trust account and used the money to cover his overpayment in the Client D case. Mr. Jordan then paid co-counsel's share of the fee to himself because he believed co-counsel owed him money in another case. He subsequently paid himself a one-half share of the fee a third time-which resulted in Mr. Jordan receiving 150% of the total attorney's fee-but he could not identify the source of the funds. The panel found Mr. Jordan violated Rule 1.15, RPC, and Rule 417, SCACR.

         In the Client F case, the panel found Mr. Jordan settled claims on behalf of two clients for $15, 000 each and deposited the settlement funds in his law firm's trust account. After making several disbursements, Mr. Jordan held $7, 800 in trust for the clients to pay medical expenses or liens. Mr. Jordan transferred the funds through several trust accounts but failed to accurately record the transfers. Five years later, during Disciplinary Counsel's investigation, Mr. Jordan discovered he owed no liens or bills on behalf of the clients. However, Mr. Jordan could no longer account for the funds in his trust account and paid the clients from his personal funds. The panel found Mr. Jordan violated Rules 1.3 and 1.15, RPC, and Rule 417, SCACR.

         In the Client G case, the panel found Mr. Jordan received $31, 000 on behalf of his client and deposited the funds into his trust account pending the outcome of the client's case. Less than two weeks later-while the case was still pending-Mr. Jordan wrote the client a trust account check for $31, 000, received a loan from the client for the same amount, deposited the funds into a personal account, and wrote a check for $22, 000 of the funds to his law firm's operating account. Eight months later, Mr. Jordan repaid his client without paying interest. Mr. Jordan did not reduce the terms of the loan to writing, did not advise the client to seek advice from independent counsel, accepted the loan without disclosing his conflict of interest, and did not obtain the client's consent to the conflict. The panel found Mr. Jordan's "acceptance of a loan from funds obtained on behalf of a client in a legal matter without payment of interest, terms of repayment, written note or other guaranty of repayment, or contingency for failure to pay was not fair or reasonable to the client." Therefore, the panel found Mr. Jordan violated Rule 1.8(a), RPC, Rule 407, SCACR.

         In the Client H case, the panel found Mr. Jordan received $55, 200 in funds to be held in trust on a client's behalf and-at her instruction-disbursed the funds to pay the client's obligations. Mr. Jordan's records identified $51, 755.28 disbursed on the client's behalf. In March 2003, Mr. Jordan issued a check for $6, 105.10 to a mortgage company. According to the panel, Mr. Jordan's records "do not identify the purpose of this check or the client on whose behalf it was paid, " but Mr. Jordan believes he wrote the check on behalf of Client H. Therefore, Mr. Jordan paid on Client H's behalf $2, 660.38 more than he received. The panel found Mr. Jordan violated Rule 1.15, RPC, and Rule 417, SCACR.

         In the Client I case, the panel found that in May 2003, Mr. Jordan deposited settlement funds into a client trust account and improperly used the funds to pay attorney's fees and costs to his law firm before his bank collected the funds, in violation of Rule 1.15(f), RPC. Between May 2003 and February 2004, Mr. Jordan made a series of payments to the client while he negotiated a lien held by a workers' compensation carrier. In July 2005-before Mr. Jordan settled the lien-he dissolved his law firm without an accurate accounting of the funds held in trust for the client and claims he left the funds in a trust account under the control of his former partner. Mr. Jordan ultimately paid the client with his personal funds after learning from the former partner's bookkeeper "that no funds remained in trust for his clients." The panel found Mr. Jordan violated Rule 1.15, RPC, and Rule 417, SCACR. The panel also found Mr. Jordan failed to supervise a nonlawyer assistant in violation of Rule 5.3, RPC.

         In the Client J case, the panel found Mr. Jordan collected a class action settlement in three installments. When he transferred the first settlement installment from one trust account into a second trust account, he failed to account for $10, 000 of the settlement funds. He also erroneously paid himself an additional $10, 000 for partial reimbursement of costs. Six years after receiving the final settlement installment, approximately $12, 000 of the settlement remained unclaimed, but Mr. Jordan could not locate the funds. The panel found Mr. Jordan violated Rules 1.1, 1.3, 1.5, and 1.15, RPC, Rule 407, SCACR, and Rule 417, SCACR. The panel also found Mr. Jordan failed to supervise a nonlawyer assistant in violation of Rule 5.3, RPC.

         In the Client K case, the panel found Mr. Jordan transferred approximately $42, 000 held in trust for a client through several trust accounts. Mr. Jordan then dissolved his law firm without an accurate accounting of the Client K funds remaining in the firm's trust account. When he requested the trust balance from his former partner's bookkeeper, he "was informed by [the] bookkeeper that there were no funds remaining in the [Client K] matter." He paid the client using earned fees from another client's case and funds from a check he received from an associate. The panel found Mr. Jordan violated Rule 1.15, RPC, and Rule 417, SCACR.

         In the Client L case, the panel found Mr. Jordan disbursed settlement funds to and on behalf of the client, including a $2, 600 check to pay a doctor bill. According to the panel report, the payee never negotiated the check, and Mr. Jordan did not discover the outstanding check until approximately four years after the settlement "when his accountant identified it as unpaid." However, he was unable to locate the funds in his trust accounts. The panel found Mr. Jordan violated Rules 1.3 and 1.15, RPC, and Rule 417, SCACR. The panel also found Mr. Jordan failed to supervise a nonlawyer assistant in violation of Rule 5.3, RPC.

         In the Client M case, the panel found Mr. Jordan-after paying fees and expenses- consolidated into a single trust account funds held in trust for the estate of his client. In doing so, he included almost $18, 000 more in the account than he actually held in trust for the estate. After disbursing the correct amount of funds to the estate, he could not identify who was entitled to the additional $18, 000 remaining in the trust account. Although Mr. Jordan denied committing any misconduct in this case, the panel found clear and convincing evidence that Mr. Jordan violated Rule 1.15, RPC, and Rule 417, SCACR.

         In the Client N case, the panel found Mr. Jordan deposited a settlement check into a trust account, improperly disbursed the settlement funds before his bank collected the check, and paid himself the full fee and reimbursement of his expenses despite his agreement to share the fee equally with co-counsel. Mr. Jordan paid his co-counsel six months later after co-counsel brought the issue to his attention. The panel found Mr. Jordan violated Rule 1.15, RPC.

         In the Client O case, the panel found Mr. Jordan improperly disbursed settlement funds to himself before his bank collected the funds, paid himself fees on portions of a settlement he had not yet collected, did not maintain separate client ledgers for two clients, and treated the clients' settlements as one fund from which he could collect his fees. The panel found Mr. Jordan violated Rule 1.15, RPC, and Rule 417, SCACR.

         As to the first set of formal charges, Mr. Jordan contested the allegation that he violated Rule 8.4(d), RPC, an allegation that he violated Rule 8.4(e), RPC, Rule 407, SCACR, one of the allegations that he violated Rule 1.15, RPC, and one of the allegations that he violated Rule 417, SCACR. He admitted the remaining violations. The panel made a factual finding that Mr. Jordan did not act with a dishonest or selfish motive in violation of Rule 8.4(d), RPC. The panel explained "no evidence was offered by [Disciplinary Counsel] that would establish or suggest that [Mr. Jordan] was dishonest in handling [his] trust account at any time" and stated, "While there was a pattern of accounting errors made by [Mr. Jordan], none amounted to dishonest or fraudulent conduct." However, the panel found by clear and convincing evidence Mr. Jordan violated Rule 1.15, RPC, and Rule 417, SCACR, in the case in which he denied violating those rules. The panel did not address the allegation that Mr. Jordan violated Rule 8.4(e), RPC.

         In its report, the panel considered several mitigating factors, including Mr. Jordan's chemical dependency. According to a physician who testified at the December 5, 2011 hearing, Mr. Jordan was addicted to prescription drugs from 1997 to 2004, and his addiction caused memory loss and other serious side effects. Mr. Jordan blamed the addiction for causing his failure to account for client funds and keep accurate records. The panel considered several other mitigating factors, including Mr. Jordan's personal and emotional problems, his cooperation in disciplinary proceedings, his timely good faith effort to make restitution or rectify the consequences of his misconduct, and the remoteness in time of his offenses. The panel also considered several aggravating factors-including multiple disciplinary offenses, a pattern of misconduct, and prior offenses[2]-and recommended Mr. Jordan be publicly reprimanded.

         On October 9, 2012-while the panel's initial recommendation was pending before this Court-Disciplinary Counsel received a complaint from an attorney who referred several cases to Mr. Jordan between 2009 and 2012. This Court stayed the first set of charges pending an investigation into the new complaint. On May 8, 2015, Disciplinary Counsel informed the Commission the parties agreed to waive the filing of the second set of charges and submit stipulations of fact and proposed amended panel reports without an evidentiary hearing. On June 3, 2015, the Commission accepted the waiver of a hearing but directed Disciplinary Counsel to file formal charges, and on June 4, 2015, Disciplinary Counsel filed a second set of formal charges. On September 8, 2015, the panel issued an addendum to its original report, in which it found the stipulated facts constituted an admission by Mr. Jordan of misconduct in seven cases.

         In each of the seven cases, the attorney referred a client to Mr. Jordan, the two attorneys agreed to evenly split Mr. Jordan's fee from the client's claim, Mr. Jordan did not inform the client of the fee-sharing arrangement or obtain the client's consent to the arrangement, and in at least six of the cases, Mr. Jordan did not promptly pay his co-counsel's share of the fee. The hearing panel did not address the propriety of Mr. Jordan's agreement to evenly split the fee Mr. Jordan earned from each of the cases, other than noting its general finding that the

division of the fee was not based on the proportion of the work done by each lawyer, but rather based on an understanding that both lawyers would be accountable for the representation and that [the referring attorney] . . . and his staff would be generally available to [Mr. Jordan] if he required assistance.

         To place the second set of charges in context, it is important to note the timing of Mr. Jordan's misconduct in relation to the proceedings for the first set of charges. Disciplinary Counsel filed the first set of charges on January 7, 2011, and Mr. Jordan filed his responses to those charges in March 2011. Mr. Jordan appeared at a full hearing on the first ...


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