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In re Schiller

Supreme Court of South Carolina

November 22, 2017

In the Matter of Bennett Joseph Schiller, III, Respondent. Appellate Case No. 2017-001645

          Submitted October 24, 2017

          Lesley M. Coggiola, Disciplinary Counsel, and Julie K. Martino, Assistant Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel.

          Thomas A. Pendarvis, of Pendarvis Law Offices, PC, of Beaufort, for Respondent.

          PER CURIAM:

         In this attorney disciplinary matter, respondent and the Office of Disciplinary Counsel 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 a public reprimand. We accept the Agreement and issue a public reprimand. The facts, as set forth in the Agreement, are as follows.

         Facts

         Co-counsel was retained by Client, a North Carolina resident, to represent him with regards to a motor vehicle accident that occurred in North Carolina. Co-counsel subsequently associated respondent on the case. Neither co-counsel nor respondent were admitted to practice law in North Carolina.

          Client signed two fee agreements. The first agreement was a fee agreement stating the attorneys' fee was 33% of any recovery and that if there was no recovery, Client would be responsible for "all actual expenses." The agreement did not specify whether the attorneys' fee would be calculated before or after litigation and other expenses were deducted. Although respondent asserted he and his co-counsel explained to Client how funds would be distributed under the agreement, respondent admits that the failure to document in writing whether litigation and other expenses are to be deducted before or after a contingent fee is calculated is a violation of Rule 1.5(c) of the North Carolina Revised Rules of Professional Conduct. [1]

         After recovering the policy limit of $30, 000 from the at-fault driver's insurance carrier, respondent and co-counsel pursued recovery under Client's underinsured motorist (UIM) policy. That carrier tendered $220, 000 to respondent and co-counsel, which represented the policy limit of $250, 000 minus a set-off of $30, 000 based on the payment by the at-fault driver's carrier.

         Client refused to accept the funds due to a disagreement over the disbursement statement, specifically, the disbursement of attorneys' fees. Client informed respondent and co-counsel he was terminating the "fee contract, " as he believed the fees were unreasonable and he did not understand there were other fee agreement options. Client also stated he did not understand from the fee agreement that respondent and co-counsel could place a lien on the insurance proceeds for the amount of the attorneys' fees owed.

         Thereafter, respondent sent letters to Client's UIM carrier informing the carrier that he and co-counsel had a lien on the $220, 000 for their one-third contingency fee. In one of the letters, respondent directed the carrier not to discuss the matter with Client or Client's brother without the consent of respondent or co-counsel.

         Subsequently, Client left a voice message with the carrier notifying the carrier that he had terminated respondent and co-counsel. Client also sent a letter to respondent and co-counsel asking them to notify the carrier that they were no longer representing Client.

          The carrier sent a letter to respondent informing him Client had notified the carrier that he had discharged respondent and co-counsel. The carrier requested respondent contact Client about the outstanding claim. Three weeks later, and over a month after Client requested such action, respondent and co-counsel notified the carrier they were no longer representing Client and returned the insurance proceeds to the carrier.

         Client alleged respondent and co-counsel failed to withdraw as counsel after he terminated the fee agreement and that they failed to inform the UIM carrier they were no longer representing Client after he requested they do so. Respondent admits his failure to withdraw from representation after multiple communications from Client requesting respondent and ...


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