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In re Whitlark

Supreme Court of South Carolina

March 14, 2018

In the Matter of J. Marcus Whitlark, Respondent. Appellate Case No. 2017-002323

          Submitted February 21, 2018

          John S. Nichols, Disciplinary Counsel, and Ericka M. Williams, Senior Assistant Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel.

          Joshua Snow Kendrick, of Kendrick & Leonard, P.C., of Greenville, 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 a public reprimand or a definite suspension not to exceed six months.[1] As a condition of discipline, respondent agrees to pay the costs incurred in the investigation and prosecution of this matter by ODC and the Commission on Lawyer Conduct within thirty days of imposition of sanction. Respondent also agrees to enter into a payment agreement with the Commission within thirty days of the acceptance of the Agreement for payment of restitution to the court reporter referenced below in the amount of $3, 239.11. We accept the Agreement and suspend respondent from the practice of law in this state for six months. The facts, as set forth in the Agreement, are as follows.


         Matter A

         On approximately seven occasions during February 2005 and October 2007, respondent and his previous law partner retained the services of a court reporter for appearances and depositions. Transcripts of the depositions were ordered by respondent and his law partner and delivered to their law offices, along with an invoice for each transcript. The total amount of the outstanding invoices was approximately $4, 040.69. When the invoices remained unpaid, the court reporter filed an action in magistrate's court and obtained a default judgment against respondent and his law partner for the amount of the unpaid invoices plus court costs, for a total of $4, 120.69. Respondent failed to pay his portion of the unpaid invoices - $3, 279.11. Respondent represents he was initially unaware of the outstanding invoices or of the court reporter's lawsuit and judgment. However, respondent was put on notice of the allegations by ODC on or about March 29, 2012, and he has still failed to pay the outstanding invoices.

         Matter B

         Respondent represented Client B in a personal injury action. Client B was treated by a neurologist for injuries sustained in an automobile accident which formed the basis for the action. In May 2000, respondent and Client B executed an authorization and agreement to pay the neurologist's fees. The total amount of the neurologist's bill after treatment was approximately $71, 000. During trial, respondent presented the neurologist's bill and presented testimony from the neurologist regarding Client B's injuries. Client B was successful at trial and ultimately obtained a monetary award for injuries in the amount of $800, 000.

         After trial, respondent attempted to negotiate the amount of the neurologist's bill. After closely scrutinizing the neurologist's charges, respondent believed some of the charges had been inflated and some charges were fraudulent. The neurologist eventually filed a lawsuit against respondent and Client B to recover the full amount of his bill. The jury awarded the neurologist $9, 054.81.

         Respondent failed to disclose to the trial judge in the personal injury action that he had offered material evidence and testimony at trial - in the form of the neurologist's bill and testimony - that he later learned was partially false. In addition, by the time the neurologist's action against respondent and Client B was resolved, respondent had distributed all remaining settlement funds to Client B. Respondent failed to hold the disputed $71, 000 in trust pending resolution of the dispute.


         With regard to Matter A, respondent admits he has violated the following Rules of Professional Conduct, Rule 407, SCACR: Rule 4.4(a) ("In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.") and Rule 8.4(e) ("It is professional misconduct ...

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