In the Matter of J. Marcus Whitlark, Respondent. Appellate Case No. 2017-002323
Submitted February 21, 2018
S. Nichols, Disciplinary Counsel, and Ericka M. Williams,
Senior Assistant Disciplinary Counsel, both of Columbia, for
Office of Disciplinary Counsel.
Snow Kendrick, of Kendrick & Leonard, P.C., of
Greenville, for Respondent.
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. 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.
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
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.
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.
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.
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